TERMS AND CONDITIONS OF SALE
(a) Thompson Meat Machinery Pty Ltd shall hereinafter be referred to as “TMM”.
(b) The person, firm or company with whom TMM shall enter into a contract shall hereinafter be referred to as “the Customer”.
(c) “Equipment” means the Equipment described and referred to in the Offer annexed to these terms and conditions, which has been provided by TMM to the Customer.
(d) “Price” means the price to be paid by the Customer for the Equipment.
(e) “Purchase Order” shall mean a order for the purchase of any Equipment by the Customer, whether or not TMM provides any quote or estimate in respect of
(a) If the Customer shall verbally place a Purchase Order, a contract shall be deemed to have been made only upon acceptance by TMM. Any such contract shall only be subject to alterations in strict accordance with the terms and conditions contained herein.
(b) TMM may, in its sole discretion, choose to verbally accept any Purchase Order from the Customer.
(c) These terms and conditions shall form part of and shall govern any contract entered into between TMM and the Customer, unless they shall have been specifically modified or rescinded by TMM in writing prior to TMM’s acceptance of the Purchase Order.
(d) Unless specified to the contrary, in the event that there is any conflict between these terms and conditions and any other agreement between the parties then these terms and conditions shall prevail to the extent of any inconsistency.
(e) TMM reserves the right to make any changes to a Purchase Order as it considers necessary.
(a) No dealing between TMM and the Customer shall be or be deemed to be a sale by sample.
(b) Subject to terms implied by law and not capable of exclusion, TMM does not warrant the fitness for the Customer’s purpose of any Equipment.
(c) The Customer will rely on its own knowledge and expertise in selecting any Equipment and as to the suitability and fitness for any required purpose of any Equipment.
(d) The Customer acknowledges that TMM has not made any warranty, guarantee or representation in relation to the Equipment on which the Customer has relied (including as to the fitness of the Equipment or any part of the Equipment for a particular purpose), apart from those which it has expressly received
in writing from TMM.
(e) Unless otherwise required by law, any warranty provided by TMM in relation to the Equipment will be limited to a period of 12 months from the date of
despatch and both TMM and the Customer agree that a period of 12 months from the date of supply or despatch of the Equipment is a reasonable warranty period.
(a) The descriptions, illustrations and statements as to performance of the Equipment contained in catalogues, price lists and other advertising matter do not form part of the contract.
(b) Any working drawings, specifications and samples which are produced by TMM are merely representative of the Equipment. TMM shall be at liberty to
make such variations to any working drawings, specifications or samples to complete the Equipment provided always that such variations shall not render
the Equipment unfit for use.
5. PLACEMENT OF ORDERS
(a) If any dispute arises over an order, TMM’s records will be conclusive evidence of what was ordered.
(b) On the placement of each Purchase Order, the Customer represents to TMM that it is solvent and able to pay all of its debts as and when they fall due.
(c) In addition to the Customer’s obligations on completion of any credit application (which TMM may separately require), the Customer shall inform TMM, when a Purchase Order is placed, of any material facts which might reasonably affect any decision to accept the Purchase Order or grant credit.
(a) Where the Equipment is to be manufactured to the Customer’s specifications. Accordingly, the Customer shall, as soon as a Purchase Order has been
placed, forthwith provide TMM with sufficient details and instructions to enable TMM to commence work. Any additional costs or expenses incurred by
TMM as a result of the Customer’s delay in this regard may be added to the Price by TMM.
(b) Where specifications, drawings or other particulars are supplied by the Customer, TMM may provide an estimate based on quantities required. If there are any adjustments in quantities are required, then TMM is entitled to revise the Price in accordance with the additional work required to complete the
7. EQUIPMENT SOLD
All Equipment to be supplied by TMM to the Customer will be as described on the Purchase Order which will prevail over all other descriptions including any specification or enquiry of the Customer.
This contract contemplates that the whole of the work required to complete the Equipment, shall be capable of being completed and delivered by TMM in one continuous operation. Any additional expense incurred by TMM as a result of TMM being unable to complete or deliver the whole of the Equipment in one part or delivery may be added to the Price by TMM.
9. PAYMENT TERMS
(a) A deposit of 50% of the Price shall be paid on acceptance of the Purchase Order, unless otherwise agreed to in writing by TMM.
(b) For Customers who have not previously been granted (in writing) a trade account or credit by TMM, the balance Price is payable in full on the date that the Customer is notified the Equipment is available for supply or despatch.
(c) Any Customer who has been granted (in writing) a trade account or credit by TMM shall make payment in full of any invoice within 30 days from the end of the month in which:
(i) the invoice is dated; or
(ii) the Customer is notified by TMM that the Equipment is available for supply or despatch,
whichever is the earlier.
(d) Any part of the Price which is not paid by the Customer on the due date shall bear interest at the rate of 8% per annum (which may be waived by TMM in its discretion).
10. PART INVOICE
(a) Where required by TMM, part invoices (or invoices for any portion of the work or for part only of the Price) may be delivered by TMM and payments are
then required to be made by the Customer within seven (7) days of the part invoice being delivered in writing by TMM.
(b) Any failure by the Customer to comply with the terms of any part invoice shall be construed as a breach of contract on the part of the Customer and shall entitle TMM to cease all works forthwith until the payment shall have been made.
(c) TMM shall not have any liability to the Customer whatsoever arising from the cessation of work for failure to pay any part invoice.
(a) Unless otherwise stated the Price is exclusive of Goods and Services Tax (GST).
(b) Where any Price set out in the Purchase Order includes any external costs (such as freight and insurance), those costs are provided by TMM on the date of the Purchase Order.
(c) In the event that there is a significant variation in the cost of materials, labour, external costs or other matters (in excess of 5% of that component of the
Price) then TMM may vary the Price and the Customer shall pay the revised Price.
(d) The Price may be revised by TMM at any time prior to supply or despatch of the Equipment.
12. PAYMENT IN FULL REQUIRED
The Price and all amounts payable to TMM shall be paid in full and without deduction on the part of the Customer by way of set-off or counter-claim without the written authority of TMM.
13. OVERDUE ACCOUNTS
The Customer agrees to pay all legal costs, stamp duty (where applicable) and other expenses incurred by TMM in connection with the recovery of any amounts which are more than 7 days overdue by the Customer.
14. WORKING HOURS
This Offer is made in contemplation that TMM shall execute its work during normal working hours from 7am to 5pm in a five (5) day week. TMM may, at its sole discretion, elect to accept or decline any Purchase Order which may (as a result of the Offer or TMM’s other commitments) require it to work outside of normal working hours. Any additional costs resulting from the Customer’s direction to work extraneous hours in lieu of the normal working hours in order to supply the Equipment may be added to the Price by TMM.
TMM shall be at liberty to sub-contract to third parties such parts of the work required to complete the Equipment as it may, in its absolute discretion think fit, without reference to the Customer.
16. RELEASE & INDEMNITY
The Customer agrees, regardless of any negligence on the part of TMM to release, hold harmless and indemnify TMM from all liability, claims, damages, losses, costs and expenses of whatever nature, (including consequential loss or damage), howsoever occurring which may accrue against or be suffered by TMM arising out of or in any way connected with the supply of the Equipment, unless by wilful misconduct of TMM or any of its servants or agents acting within the scope of their employment.
17. LIMITATION OF LIABILITY
TMM’s liability for a breach of this contract, including for a breach of a condition or warranty implied by Div 2 of Pt V of the Trade Practices Act 1974 (other than s69),
is limited to:
(a) In the case of Equipment, any one or more of the following:
(i) the replacement of the Equipment or the supply of equivalent Equipment;
(ii) the repair of the Equipment;
(iii) the payment of the cost of replacing the Equipment or of acquiring equivalent Equipment;
(iv) the payment of the cost of having the Equipment repaired; or ;
(b) In the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again at TMM’s sole discretion.
(a) Any delivery times provided by TMM to the Customer are estimates only and are not of the essence.
(b) TMM is not liable for any loss to the Customer (or other parties) resulting from late delivery or non-delivery.
(c) TMM may at its option deliver the Equipment to the Customer in any number of instalments unless otherwise agreed in writing with the Customer.
(d) If TMM delivers any of the Equipment by instalments, and any one of those instalments is defective for any reason:
(i) it is not a repudiation of the contract;
(ii) the defective instalment is a severable breach that gives rise only to a claim for compensation.
19. LOSS OR DAMAGE IN TRANSIT
(a) TMM is not responsible to the Customer or any person claiming through it for any loss or damage to the Equipment in transit caused by any event,
regardless of how caused (whether or not TMM is legally responsible for the person who caused or contributed to that loss or damage).
(b) TMM will provide the Customer with such assistance as may be necessary to make claims on carriers so long as the Customer:
(i) has notified TMM and the carries in writing immediately after loss or damage is discovered on receipt of the Equipment; and
(ii) lodges a claim for compensation on the carrier within three (3) days of the date of receipt of the Equipment.
20. PROPERTY AND RISK
(a) Property in the Equipment shall not pass until payment in full of the Price (and all monies owed on any basis) is made by the Customer.
(b) Risk in the Equipment shall pass to the Customer on delivery or despatch to the Customer, whichever is the first to occur.
(c) All of the Customer’s property in TMM’s custody or control will be entirely at the Customers risk as regards to loss or damage thereto from any cause
(d) All property of TMM (including in the Equipment if property has not passed) situated on the Customer’s premises will be the responsibility of the Customer as to loss or damage caused by the Customer.
21. TITLE TO GOODS
(a) TMM reserves the following rights in relation to the Equipment until the Price is paid in full:
(i) Ownership of the Equipment;
(ii) To, with the full authority of the Customer, which is hereby irrevocably given, enter the Customer’s premises (or the premises of any associated
company or agent where the Equipment are located) if necessary with the assistance of a security agent who is similarly authorised by the
Customer to enter the Customer’s premises (including, where necessary, by picking or breaking the Customers locks) without liability for trespass
or any resulting damage and retake possession of the Equipment; and
(iii) To keep or resell any Equipment repossessed pursuant to 21(a)(ii) above.
(b) If the Equipment is used to make new goods, then the new goods will be held in trust for TMM until paid for in full by the Customer.
(c) If the Equipment is resold, or further Equipment manufactured using the Equipment are sold by the Customer, the Customer shall hold such part of the
proceeds of any sale as represents the Price of the Equipment sold or used in the manufacture of the further Equipment sold in a separate identifiable
account as the beneficial property of TMM and shall pay such amount to TMM upon request. Notwithstanding any provision above, TMM shall be entitled
to maintain an action against the Customer for the Price.
(d) Notwithstanding any provision above, TMM shall be entitled to maintain an action against the Customer for payment of the Price.
22. CUSTOMER’S INSOLVENCY
If the Customer commits (or if TMM considers, on reasonable grounds, that the Customer is at risk of committing) an act of bankruptcy, enters into a scheme of arrangement or composition with creditors, suffers a sequestration order or, being a company, takes or has taken against it any action or proceedings which may result in the winding up of the company or is placed under official management or receivership, then TMM may:
(a) terminate the contract on the giving of 24 hours notice to the Customer in accordance with clause 29;
(b) exercise its rights pursuant to clause 21.
23. FORCE MAJEURE
If for any reason beyond TMM’s control, TMM’s performance is delayed or impeded, TMM may cease or suspend work on the Equipment (at its absolute discretion) provided always that the Customer shall pay any part invoice and shall pay all charges and expenses incurred and moneys paid by TMM in respect thereof.
The Customer is entitled to obtain finance in order to purchase the Equipment provided that the finance company contact details are given to TMM for approval prior to placement of any Purchase Order.
25. CUSTOMER RESTRUCTURE
(a) The Customer will notify TMM in writing within seven (7) days of any change in its structure or management including any change in director, shareholder or change in partnership or trusteeship and/or of the sale of any part of its business. If the Customer fails to do so, or if the change is not acceptable to TMM, it may terminate the contract immediately and the provisions of clause 29 of this contract shall then apply.
(b) Both the person or entity shown in TMM’s records s the Customer and the person or entity operating the new business structure shall be liable to TMM prior to notification in accordance with clause 25(a).
(c) Without any derogation to any of TMM’s rights as set out in this clause 25, if the Customer fails to comply with its obligations under this clause 25, then the new person or entity shall be deemed to have accepted the Terms and Conditions of this agreement in full and will be regarded as standing in the place or
stead of the Customer.
26. CREDIT LIMIT
If TMM grants any credit facility or nominates any credit limit, that is an indication only of its intention at the time. TMM can vary or withdraw any credit facility at its unfettered discretion, without liability to the Customer or any other party.
27. RETURNED GOODS
(a) TMM is not under any duty to accept Equipment returned by the Customer and will do so only on terms to be agreed in writing in each individual case.
(b) TMM agrees to accept returned Equipment from the Customer under paragraph (a) of this clause, the Customer must return the Equipment to TMM at its place of business referred to in these terms and conditions and the Customer shall bear the cost of transit (if any) for the return of the Equipment to TMM.
No Order may be cancelled except with consent in writing and on terms which will indemnify TMM against all losses resulting from such cancellation.
(a) If the Customer shall default in any of its obligations under this contract, TMM shall have the right to determine this contract immediately upon the provision of written notice to the Customer.
(b) Upon termination of the contract prior to payment of the Price in full:
(i) all amounts due under the contract become payable forthwith;
(ii) TMM shall be at liberty to retake possession of the Equipment in respect of which property has not passed and, if necessary, to enter onto the property
of the Customer in order to execute that right, in accordance with clause 21.
30. NO WAIVER
No relaxation by TMM of the Customers obligations under this contract shall be regarded as a waiver of TMM’s right to enforce those obligations on a subsequent occasion.
31. APPLICABLE LAW
This contract shall be construed according to the laws of the State of Queensland and the parties submit to the jurisdiction of the Courts of Queensland
To the extent possible, any part of these terms and conditions may be severed without affecting any other part.