LINEARTECHNIK PTY LTD (ACN 113 557 654) TERMS AND CONDITIONS OF SALE
1.1 “ACL” means the Australian Consumer Law set out in Schedule 2 to the CCA.
1.2 “CCA” means the Competition and Consumer Act 2010 (Cth).
1.3 “Company” means LinearTechnik Pty Ltd (ACN 113 557 654).
1.4 "Customer" means the person described in the Application for Credit as "the Applicant" or any party to whom the Company supplies goods and/or services.
1.5 “Insolvent” has the meaning in section 95A of the Corporations Act 2001 (Cth).
1.6 “Order” means an order by the Customer to the Company requesting the sale of goods and/or the provision of services, including as set out in any order acknowledgement from the Company to the Customer.
1.7 “Terms” means these terms and conditions (as varied by the Company from time to time) along with any relevant Order received by the Company in writing.
Application of these Terms and Conditions
2.1 These Terms govern all contracts and transactions for the sale of goods and/or the provision of services by the Company to the Customer and are binding on both the Customer and the Company.
2.2 These Terms prevail over any terms and conditions proposed by the Customer, and the Company shall not be deemed to have impliedly accepted any other terms if the Company abstains from raising objections to such terms. No deviation from these Terms applies unless the Company has explicitly (but not impliedly) accepted the deviation in writing.
2.3 The Company shall not be responsible for any promises, conditions, warranties or representations made by any of its representatives employees or agents unless expressly set out in these Terms.
2.4 Except as otherwise stated in these Terms, no amendment or variation to these Terms shall be valid unless in writing signed by both the Company and the Customer.
Terms of Delivery
3.1 All Orders must be made in writing unless otherwise agreed by the Company. Upon placing an Order, the Customer is deemed to accept, and agrees to be legally bound by the Order and these Terms. An Order is accepted by the Company unless the Company notifies the Customer that the Order is rejected.
3.2 No cancellation or change of Order by the Customer can be considered accepted until the Company confirms the cancellation or change in writing. The Customer is liable to reimburse the Company for any cost involved in cancelling or changing an Order.
3.3 Unless otherwise specified in an Order and agreed by the Company, all deliveries from the Company are effected ex works to the Company’s premises, and at the Customer’s expense. The Customer bears all risks of loss, damage and delays in transit; no matter who pays for shipment and insurances.
Terms of Payments
4.1 Unless otherwise agreed in writing, the total purchase price set out in the Order shall be paid in full upon delivery of the goods or services.
4.2 Quotations and any other preceding correspondence are not binding on the Company.
4.3 The Company may charge interest upon any amount outstanding after the due date for payment at the rate per annum equal to five percent (5%) above the rate fixed under section 2(1) of the Penalty Interest Rates Act 1983 (Vic) on the date the amount fell due until the date of payment in full. The Customer must also reimburse the Company for all expenses incurred by the Company in enforcing these Terms (including, without limitation, legal expenses, and all debt collection agency costs incurred by the Company on a full indemnity basis).
4.4 The Customer is not entitled to retain any payment with reference to any alleged claim on the Company unless the Company has explicitly accepted the claim in writing.
4.5 In addition to and without prejudice to any other right or remedy of the Company, in the event of default by the Customer in the payment of the purchase price, the Company may treat the Order as repudiated by the Customer and retain any deposit as an agreed assessment of damages suffered and costs incurred by the Company as a result of the default.
5.1 Prior to delivery or provision of the goods or services the subject of an Order, the Company reserves the right to vary the prices in such Order, should there be effected changes in wages, material process or imposed dues of which the Company has no control.
5.2 The Customer may, within 2 working days of receiving notice of a change to an Order, cancel the Order at no cost to the Customer. If the Customer does not cancel the Order within such time, the varied Order is deemed to be accepted and shall be binding on both parties.
Variation of Orders
The Company reserves the right to alter the goods, including goods on Order, if that can be done without changing technical specifications previously agreed.
7.1 Upon receipt of goods the subject of an Order, the Customer must examine the goods for faults, deficiencies and any other deviation from the Order. The Customer must give written notice of such claims to the Company not later than 3 working days after receipt of the goods.
7.2 If no such claim is made, the Customer is deemed to have accepted the goods without fault and in good condition. The Customer is solely responsible for the application of the goods, irrespective of whether this application has been approved by the Company.
8.1 Any delivery date referred by the Company is an estimate only and, subject to law, the Company shall not be liable for late delivery, non-delivery or for any loss, damage or delay caused to the Customer from late or non-delivery of the goods or services.
8.2 Substantial delay shall only enable the Customer as its sole legal remedy to cancel this agreement if such delay is due to circumstances within the direct control of the Company, but not otherwise.
8.3 If the Customer is unable or unwilling to accept delivery of the goods for any reason, the Customer is liable for all storage costs, charges, expenses and additional delivery charges, with such amount to be paid as and when invoiced at the discretion of the Company.
Passing of Property
9.1 Title to all goods remains with the Company until all moneys owing to the Company by the Customer have been paid. Title to the goods passes to the Customer once the Company has received all amounts owing to it in respect of the goods, and any other amounts owing to the Company.
9.2 Failure to make payment by the due date will, without prejudice to any other available remedies, entitle the Company to enter and repossess the goods from any premises where they may be.
9.3 If the goods have been resold to a third party before title passes to the Customer, any moneys received by the Customer with respect thereto shall be held by the Customer upon trust for the Company notwithstanding the fact that it is not deposited into a separate bank account. The Customer will upon request assign to the Company any right against any third party arising out of such sale. The Customer will be entitled to receive the excess of the proceeds of sale over the amounts due to the Company from the Customer, but only after payment of all such amounts owing to the Company.
9.4 Notwithstanding the foregoing, the Company will be entitled to bring an action against the Customer for the price of the goods in the event of non-payment by the Customer by the due date.
Taxes and Dues
10.1 Unless otherwise expressly stated all prices quoted by the Company are GST exclusive. In addition to the amount payable for the goods and/or services, the Customer must pay to the Company an amount equal to any GST applicable to any taxable supply by the Company under the Order and these Terms. The Customer must pay GST without deduction or set off of any amounts, at the same time and in the same manner as payment for the relevant supply of the goods and/or services. The Customer indemnifies the Company for any loss that the Company may incur as a result of the incorrect payment or non-payment of any GST and associated fees and/or penalties.
10.2 The Customer is also liable to pay taxes, dues and customs duties imposed on the goods as well as any expenses involved in the approval of the goods, should such approval be necessary.
Insolvency and Default
11.1 The Company may by notice in writing to the Customer terminate any unperformed (in whole or in part) Order with the Customer if the Customer is Insolvent, commits any breach of any of these Terms or any other contract with the Company or the Company believes on reasonable grounds that the Customer is likely to become Insolvent or materially fail to complete its obligations under any contract with the Company.
11.2 In the event of such termination the Customer will forthwith on demand deliver to the Company any goods which are in the possession or control of the Customer but in which the title remains with the Company, and the Company will be entitled by notice in writing to the Customer to declare immediately due and payable any amounts outstanding from the Customer to the Company under this or any other agreement without liability on the part of the Company for any and all direct or indirect loss or damage thereby caused to the Customer.
Negation of Manufacturer’s Warranties
12.1 The Customer acknowledges that the Company is on-selling products manufactured by others. Accordingly, the Customer acknowledges that the Company will not be responsible for any manufacturer's warranty or for any cost expense or damage howsoever arising from the use by the Customer of the goods to the maximum extent permissible by Law.
12.2 The Company will use its best endeavours to obtain redress in appropriate circumstances from the particular manufacturer, but, to the extent permissible by law, the Company accepts no responsibility whatsoever for any manufacturer’s warranty or any claim arising from use of the goods.
The Company’s Warranties
13.1 Where the ACL applies, the Company’s goods and services may come with guarantees that cannot be excluded under the ACL.
13.2 Nothing in the Order or these Terms is to be read or applied so as to exclude, restrict or modify any guarantee or other right or remedy in the ACL or other law which cannot by law be excluded, restricted or modified.
13.3 Except as expressly set out in the Order and these Terms or in respect of the guarantees that apply to goods and services purchased by consumers (as defined in the CCA), contained in Part 3-2, Division 1 of the ACL, the Company makes no warranties or other representations in respect of the goods or services.
14.1 If the CCA (or analogous legislation in a relevant jurisdiction) applies to the Order and these terms and conditions and permits the limitation of liability for breach of warranty implied by statute, the liability of the Company is limited, at the option of the Company, to:
14.1.1 in the case of services, the supplying of the services again or the payment of the cost of having the services supplied again; and
14.1.2 in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of the cost of having the goods repaired.
14.2 To the extent permitted by law, the Company is not responsible for losses, or any other indirect or consequential loss or damage to the Customer (or any other third party) in connection with these Terms in any way whatsoever. Furthermore, the Company is not responsible for losses resulting from misuse of the goods, incorrect storage, misapplication, accidents, poor maintenance, incorrect installation or defective electric installation.
14.3 The Company shall have no responsibility for any loss, cost, expense or damage caused or related to the goods whatsoever other than the obligations set out herein.
14.4 Subject to the Company’s warranties above, the Customer acknowledges that it does not rely on the skill or judgment of the Company as to whether or not the goods or services are fit for any particular purpose.
Venue These Terms and all matters concerning the business relationship between the Company and the Customer shall be governed by the law of the State of Victoria and the parties hereby submit to the jurisdiction of the Victorian Courts.