Terms and Conditions
WEMS PTY LTD SALES AGREEMENT
Interpretation
1. In these conditions:
a) ‘Seller’ means WEMS Pty Ltd (ABN 62 263 196 951) of 1/181 Sturt Highway Nuriootpa SA 5355.
b) ‘Buyer’ means the purchaser of the goods specified overleaf.
c) ‘Goods’ means the products and/or services specified overleaf.
d) Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right of remedy implied by law (including the Competition and Consumer Act 2010) and which by law cannot be excluded, restricted or modified.
General
2. These conditions (which shall only be waived in writing signed by the seller) shall prevail over all conditions of the buyer’s order to the extent of any inconsistency.
Terms of sale
3. The goods sold by the seller are sold only on these terms and conditions.
Seller’s quotations
4. Unless previously withdrawn, the seller’s quotations are open for acceptance within the period stated in them or, when no period is stated, within 30 days after its date. The seller reserves the right to refuse any order based on its quotation within 7 days after receipt of the order.
Drawings and Specifications
5.
a) All specifications, drawings, and particulars of weights and dimensions submitted to the seller are approximate only and any deviation from any of these things does not vitiate any contract with the seller or form grounds for any claim against the seller.
b) The descriptions, illustrations and performance contained in catalogues, price lists and other advertising matter of the seller do not form part of the contract of sale of the goods or of the description applied to the goods.
c) Where specifications, drawings or other particulars are supplied by the buyer, the seller’s price is made on estimates of quantities required. If there are any adjustments in quantities above or below the quantities estimated by the seller and set out in a quotation, then any such increase or decrease is to be adjusted on a unit rate basis according to unit prices set out in the quotation.
6. The seller will retain all intellectual property rights that are associated with the goods unless the parties agree that the intellectual property shall be transferred to the buyer at the time of sale and this is recorded in a written agreement signed by the seller.
Performance
7. Any performance figures given by the seller are estimates only. The seller is under no liability for damages for failure of the goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.
Packing/Shortage/Delivery/Storage
8. The costs of any special packing and packing materials used in relation to the goods are at the buyer’s expense notwithstanding that such cost may have been omitted from any quotations.
9. The buyer waives any claim for shortage of any goods delivered if a claim in respect for short delivery has not been lodged with the seller within seven (7) days from the date of receipt of the goods by the buyer.
10. The delivery times made known to the buyer are estimates only and the seller is not liable for late delivery or non-delivery.
11. The seller is not liable for any loss, damage or delay occasioned to the buyer or its customers arising from late or non-delivery or late installation of the goods.
12. The seller may at its option deliver the goods to the buyer in any number of instalments unless there is a written endorsement to the effect that the buyer will not take delivery by instalments.
13. If the seller delivers any of the goods by instalments, and any one of those instalments is defective for any reason:
a) it is not the repudiation of the contract of sale formed by these conditions; and
b) the defective instalment is a severable breach that gives rise only to a claim for compensation.
14. Delivery is not included in the price of the goods and services unless stated in writing in the quotation.
15. The seller reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the buyer within fourteen days of a request by the seller for such instructions. The parties agree that the seller may charge for storage from the first day after the seller requests the buyer to provide delivery instructions.
16. The seller reserves the right to deliver the buyer’s goods, and the buyer to pay for the cost of delivery, if collection is not made within 14 days of a request by the seller.
Loss or damage in transit
17.
a) The seller is not responsible to the buyer or any person claiming through the buyer for any loss or damage to goods in transit caused by any event of any kind by any person (whether or not the seller is legally responsible for the person who caused or contributed to that loss or damage).
b) The seller must provide the buyer with such assistance as may be necessary to press claims on carriers so long as the buyer:
1) has notified the seller and the carriers in writing immediately after loss or damage is discovered on receipt of goods; and
2) lodges a claim for compensation on the carrier within three (3) days of the date of receipt of the goods.
Guarantee
18.
a) The seller’s liability for goods manufactured by it is limited to making good any defects by repairing the defects or at the seller’s option by replacement, within a period not exceeding twelve (12) calendar months after the goods have been dispatched so long as:
1) the goods have been used in accordance with their stated purpose;
2) defects have arisen solely from faulty materials or workmanship;
3) the goods have not received maltreatment, inattention or interference;
4) accessories of any kind used by the buyer are manufactured by or approved by the seller;
5) the seal of any kind on the goods remain unbroken; and
6) the defective parts are promptly returned free of cost to the seller.
b) If the goods are not manufactured by the seller the guarantee of the manufacturer of those goods is accepted by the buyer and is the only guarantee given to the buyer in respect of the goods. The seller agrees to assign to the buyer on request made by the buyer the benefit of any warranty or entitlement to the goods that the manufacturer has granted to the seller under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
c) The seller is not liable for and the buyer releases the seller from any claims in respect of faulty or defective design of any goods supplied unless such design has been wholly prepared by the seller and the responsibility for any claim has been specifically accepted by the seller in writing. In any event the seller’s liability under this paragraph is limited strictly to the replacement of defective parts in accordance with paragraph 18(a) of these conditions.
d) Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law (except as provided by the Competition and Consumer Act 2010 (“CCA”)) as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the goods or arising out of the seller’s negligence or in any way whatsoever.
19. The seller’s liability for a breach of a condition or warranty implied by CCA is limited to:
a) in the case of goods, any one or more of the following:
1) the replacement of the goods or the supply of equivalent goods;
2) the repair of the goods;
3) the payment of the cost of replacing the goods or of acquiring equivalent goods;
4) the payment of the cost of having the goods repaired; or
b) in the case of services:
1) the supplying of the services again; or
2) the payment of the cost of having the services supplied again.
20. The seller’s liability under CCA is expressly limited to a liability to pay to the purchaser an amount equal to:
a) the cost of replacing the goods;
b) the cost of obtaining equivalent goods; or
c) the cost of having the goods repaired, whichever is the lowest amount.
Prices
21.
a) Unless otherwise stated all prices quoted by the vendor are net, exclusive of Goods and Services Tax (GST).
b) The minimum price for any order of goods shall be $20.00 and any order for labour shall be $30.00.
c) Prices quoted are those ruling at the date of issue of quotation and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rates of wages, cost of materials and other charges affecting the cost of production.
d) This sales agreement is subject to an adjustment for the rise and fall of the seller’s costs at the time of delivery or performance.
e) All additional goods requested by the buyer will incur an additional charge on a quantum meruit basis.
Payment
22. The purchase price in relation to goods is payable net and payment of the price of the goods must be made on or before the last day of the next month following the issue of the invoice unless other terms of payment are expressly stated and agreed in writing.
Credit card payments will incur an additional charge of 2.5% of the purchase price.
Interest on overdue payments
23. If the seller is not paid for any goods on the due date specified in this agreement, then without prejudice to any other right or remedy:
a) all of the outstanding money carries interest calculated on a daily basis from the due date until paid at a rate of interest per annum equal to 2% in excess of the interest charged by the seller’s financiers; and
b) the seller may recover the price of the goods together with all interest forthwith from the buyer as a liquidated debt in a court or tribunal of competent jurisdiction irrespective of any claim that the buyer may have against the seller for any thing or matter related to the goods delivered under this contract.
c) the seller may recover legal costs of any legal proceedings regarding outstanding monies owed by the buyer on a solicitor and client basis.
Rights in relation to goods
24. The seller reserves the following rights in relation to the goods until all accounts owed by the buyer to the seller are fully paid:
a) ownership of the goods;
b) to enter the buyer’s premises (or the premises of any associated company or agent where the goods are located) without liability for trespass or any resulting damage and retake possession of the goods; and
c) to keep or resell any goods repossessed pursuant to (b) above.
If the goods are resold, or products manufactured using the goods as sold, by the buyer, the buyer shall hold such part of the proceeds of any such sale as represents the invoice prices of the goods sold or used in the manufacture of goods sold in a separate identifiable account as the beneficial property of the seller and shall pay such amount to the seller upon request. Notwithstanding the provisions above the seller shall be entitled to maintain an action against the buyer for the purchase prices and the risk of the goods shall pass to the buyer upon delivery.
Buyer’s property
25. Any property of the buyer in the seller’s possession, custody or control is completely at the buyer’s risk as regards to loss or damage caused to the property, and loss or damage caused by the property. Any property of the buyer which has been left in the seller’s possession without the seller’s written authority may be disposed of by the seller after 30 days at the buyer’s cost.
Returned goods
26. The seller is not under any duty to accept goods returned by the buyer and will do so only on terms to be agreed in writing in each individual case.
a) If the seller agrees to accept returned goods from the buyer, the buyer must return the goods to the seller at the seller’s place of business referred to at the head of these conditions.
b) All costs incurred in returning goods under paragraph(b) will be at the buyer’s own expense.
Goods sold
27. All goods to be supplied by the seller to the buyer are as described on the quote agreed by the seller and the buyer and the description on the quote as so agreed prevails over all other descriptions including any specification or enquiry of the buyer.
Cancellation
28. No order may be cancelled except with the seller’s consent in writing and on terms which will indemnify the seller against all losses.
Place of contract
29.
a) The contract for sale of the goods is made in the state of South Australia.
b) The parties submit all disputes arising between them to the courts of South Australia and any court competent to hear appeals from those courts of first instance.