No quotation given by the Company shall constitute or be deemed to constitute a binding offer and a valid contract shall only exist after the Company’s written acceptance of an order (whether by issue of the Company’s standard invoice/statement or otherwise). Such contract shall be subject to the conditions set out below.
A quotation is valid for thirty (30) days only and the Company reserves the right to amend it if an error or omission has occurred.
The Purchaser shall satisfy itself as to the condition quality and suitability of the goods and the fitness of the goods for the purpose(s) for which the goods are being purchased and as to its compliance with the description (if any) of such goods. Any description shall be by way of identification only and the use of such description shall not constitute this contract sale by description.
The Company shall not, after delivery of the goods to the Purchaser, be responsible or liable (in the absence of any wilful or negligent act or omission on the part of the Company) for any liability claim loss damage or expense of any kind or nature (including but not limited to loss of profits earnings or income direct indirect consequential contingent or resulting liability loss or damage whether to persons property or otherwise) or death or injury caused by or arising out of or relating in any manner or incidental to the goods or the possession or use thereof by the Purchaser or any third party or in relation to the condition storage supply non supply performance or non-performance inadequacy in or any defect or breakdown of any accident to the goods or any item therein or any thing or service provided for or contemplated by or incidental to or arising out of the distribution sale promotion display or advertisement of the goods hereunder. The Purchaser shall and does hereby release and discharge the Company from any liability in respect of any action proceeding demand claim loss damage expense death injury aforesaid.
These conditions of sale shall not be read or applied so as to purport to exclude restrict or modify or have the effect of excluding restricting modifying the application in relation to this contract of all or any of the provisions of Division 2 of Part V of the Trade Practises Act 1974 or the exercise of right conferred by such a provision or any liability of the Company for breach of a condition or warranty implied by such a provision but all other conditions or warranties which would or might otherwise be implied and are hereby expressly excluded and negatived.
To the extent that the Trade Practises Act 1974 permits the Company to limit its liability for a breach of the condition or warranty implied pursuant to Part V of the Act, than the Company’s liability for such breach including any consequential loss which the Purchaser or any third party may sustain or incur shall be limited, at the option of the Company, to:
(i) the replacement or repair of the goods concerned or the supply of equivalent goods; or
(ii) the payment of the cost or replacing or repairing the goods or of acquiring equivalent goods.
whichever may be determined in the absolute discretion of the Company to be appropriate in the circumstances. The Purchaser shall within thirty (30) days of the Purchaser first becoming aware of the facts giving rise to a claim under this provision make written claim to the Company setting out the full particulars of such claim.
The Company warrants that in the event of any defect being discovered, the Company will, provided that it is satisfied that the defect is due to an inherent defect of faulty material or bad workmanship, replace the defective part or the goods (as the Company shall in its absolute discretion determine) without charge upon the defective goods being returned freight prepaid to the Company. Any claim under this warranty must be made to the Company in writing within thirty (30) days of the defect being discovered.
The benefits of any warranty herein contained shall not apply in the case of:
(i) defect(s) due to misuse or neglect.
(ii) goods which have been altered or added to or otherwise modified.
(iii) goods repaired or serviced by any person other than the Company or its duly authorised representative.
The selling price dated on the Company’s invoice to the Purchaser is based upon the Manufacturer’s then current selling price to the Company and then current freight rates.
Should there be any variation in any of these rates or charges or if there is any variation as a result of, or changes in, the laws or regulations for the time being in force (whether State or Commonwealth) at or before the goods are delivered to or collected by the Purchaser (as the case maybe) then, in such event, the Company reserves the right to vary the selling price, including the profit margin of the Company as shall be appropriate in the circumstances and the Purchaser agrees to pay any such varied selling price in lieu of the original selling price.
Unless otherwise agreed the delivery period shall run from the latest of the following dates.
(a) acceptance of the order by the Company
(c) the date of receipt by the Company of any advance payment or Letters of Credit as may be stipulated in the contract
(d) the date of receipt by the Manufacturer of a final order from the Company for the Manufacturer to commence manufacture of the subject goods.
DELAY IN DELIVERY
No liability shall be attached to the Company for deliveries delayed, suspended, cancelled, part or short delivered due to an Act of God, war, riot, fire, explosion, accident, flood, shortage, inability to obtain fuel, power, raw materials, labour, containers, or transportation facilities, government law, regulations, orders or action, breakage or failure of machinery or apparatus, national defence requirements or any other event beyond the reasonable control of the Company or in the event of labour trouble, strike, lockout or injunction (whether or not such labour event prevents the manufacture, shipment acceptance of a shipment of the goods or of material upon which the manufacturer of the goods is dependent. Deliveries suspended under this Clause may at the option of the Company be cancelled without any liability attaching to the Company or completed within an extended period and in either case the Company shall notify the Purchaser in writing accordingly.
Where goods are quoted on an F.I.S., basis, transport selected by the Company will be provided to the Customer’s works or warehouse (State capital cities only). Cost associated with offloading, unpacking, positioning, and erections are not included in the Company’s selling price and are the responsibility of the Purchaser who shall provide competent labour to effect these arrangements at their own expense. Delivery of goods in all other cases shall be at the cost of the Purchaser unless agreed by Miller Chains Australia Pty Ltd.
RISK AND TITLE
No general property or equitable interest in goods supplied by the Company to the Purchaser shall pass to the Purchaser until such time (hereinafter called “the specified time”) as the price of the goods and all other moneys (if any) due from the Purchaser to the Company in respect of the goods or under any contract between the Company and the Purchaser shall have been paid to the Company in full.
Until the specified time the Purchaser shall be only a bailee of the goods for the Company and the Purchaser shall;
(a) so hold the goods until the specified time as to enable them always readily to be identified as the property of the Company
(b) upon written demand re-deliver the goods to the Company or allow the Company by its servants or agents to enter upon any premises where the goods are stored to recover the same.
The Purchaser is authorised before the specified time as agent for the Company to sell the goods for the account of the Company.
The goods shall be at the Purchaser’s risk from the time of despatch from the Company’s premises.
Request for cancellation of an order must be in writing. Any such cancellation shall be of no force or effect and shall not be binding on the Company unless and until such cancellation is accepted by the Company in writing. Cancellation of any order shall be at the sole and absolute discretion of the Company. No request for cancellation by the Purchaser will be accepted by the Company where goods have been ordered from the Manufacturer by the Company against a firm order from the Purchaser.
RETURN OF GOODS & CREDIT
Save as herein provided, goods purchased from the Company shall in no case be returned to the Company unless;
(i) the Purchaser first notifies the Company of its desire to return goods to the Company, stating the reasons therefor, and
(ii) the Company agrees to accept the return of the goods, subject always to such terms and conditions (if any) as the Company shall in its absolute discretion stipulate, and
(iii) the goods are returned freight prepaid to the Company at its head office warehouse.
Goods returned to the Company shall at all relevant times be at the sole risk of the Purchaser.
Credit shall not be granted until goods have been returned to the head office warehouse.