1. INTERPRETATION In these Terms:
1.1. “Agreement” means any agreement between the Company and the Customer for the sale of Goods and/or provision of Services.
1.2. “Company” means Altendorf Asia Pacific Pty Limited ACN 006 929 139.
1.3. “Company’s Premises” means the Company’s principal place of business as shown in the records of the Australian Securities and Investments Commission from time to time.
1.4. “Consequential Loss or Damage” means any loss of profits, revenue, use or opportunity, re-installation costs, removal costs and any remote, indirect or incidental form of loss and any exemplary or punitive damages.
1.5. “Goods” means all equipment and goods including consumables sold and/or delivered by the Company to the Customer from time to time.
1.6. “GST” means the Goods and Services Tax imposed by A New Tax System (Goods & Services Tax) Act 1999 and any related act and/or regulations.
1.7. “PPSA” means the Personal Property Securities Act 2009 (Cth).
1.8. “PPSR” means the personal property security register created under the PPSA.
1.9. “Services” means all installation, commissioning, maintenance, repair and on-site technical support services provided by the Company to the Customer from time to time.
1.10. “ServiceCharges” means the moneys charged by the Company for the provision of the Services.
1.11. “Terms”means theseTerms and Conditions of Trade.
2.1. These Terms apply to the sale of Goods and/or the provision of Services to the Customer by the Company.
2.2. No amendment, alteration, waiver or cancellation of these Terms is binding on the Company unless confirmed in writing by the Company.
2.3. The Customer acknowledges and agrees that:
2.3.1. no employee or agent of the Company may make, and the Customer has not relied on, any representation, warranty or promise in relation of the Goods and/or the Services other than as contained in these Terms;
2.3.2. the Customer has determined that the Goods and/or the Services are fit for the purpose for which they are required;
2.3.3. the Customer has not relied on the skill and judgement of the Company in selecting the Goods and/or the Services; and
2.3.4. the Customer has checked the Goods and/or Services for suitability, functionality, completeness, and any performance values or specifications given by the Company.
3. TERMS OF PAYMENT
3.1. Prices quoted are strictly ex the Company’s premises, and do not include costs for packaging, delivery, freight, insurance, installation and/or commissioning and, subject so clause 3.2, are fixed for a period of thirty (30) days from the date of the quotation.
3.2. Prices quoted are subject to change if:
3.2.1. there is any delay by the Customer in the performance of any of the Customer’s obligations resulting in additional costs; or
3.2.2. there is any variation in the cost price to the Company by the manufacturer between the date of the quotation and the date of delivery of the Goods to the Company by the manufacturer.
3.3. Payments must be made in full, without any deduction or discount other than as stated in these Terms or in the relevant invoice or statement to the Customer.
3.4. Payments must be made in accordance to terms stipulated on tax invoice issued by the Company.
3.5. In the absence of any specific written direction to the contrary, payments will be credited against the oldest outstanding account of the Customer with the Company to the most recent.
3.6. The Customer cannot set-off from any payment, any counter-claims that the Customer may have against the Company.
3.7. Interest is payable on all overdue accounts calculated on a daily basis at the rate of interest equivalent to the Company’s financial institution’s corporate unsecured overdraft rate as at the final date of payment plus 4% until full payment is received by the Company.
4.1. Availability dates are estimates only, but the Company will use its best endeavours to maintain the respective estimate date of delivery.
4.2. The Company reserves the right to deliver the Goods in whole or by instalments, as well as to deliver prior to the date for delivery and in such event the Customer must not refuse to take delivery of the Goods.
4.3. Where the Goods are delivered by instalments, each instalment is sold under a separate Agreement.
4.4. Any failure on the part of the Company to deliver instalments within any specified time does not entitle the Customer to repudiate the Agreement with regard to the balance remaining undelivered.
5. PROPERTY IN GOODS / RETENTION OF TITLE
5.1. Legal and beneficial ownership of the Goods will not pass to the Customer until such time as the Goods so supplied have been paid for in full in cash or cleared funds.
5.2. Until the amount payable in respect of the Goods has been paid in full in cash or cleared funds:
5.2.1. the Customer will hold the Goods as bailee only for the Company;
5.2.2. any monies received or income generated by the Customer (up to the amount owing to the Company) through the use of such Goods will be deemed to be received on trust for the Company; and
5.2.3. the Goods must be stored in such manner that they are readily distinguishable from other goods owned by the Customer or other persons, so as to clearly show that they are the property of the Company.
6. GOODS AT CUSTOMER’S RISK
6.1. The Goods are entirely at the risk of the Customer from the moment the Goods leave the Company’s Premises even though property in and title to the Goods have not passed to the Customer.
6.2. The Customer must, at its own expense, maintain the Goods and insure them for the benefit of the Company for their full replacement value against theft, destruction, fire, water and other risks, as from the moment of collection by the Customer until property of and title to the Goods have passed to the Customer.
6.3. The Customer must take all reasonable measures to ensure that the Company’s title to the Goods is in no way prejudiced. If any of the Goods are lost, destroyed or damaged, any insurance proceeds relating to the Goods in respect of such event that are received by the Customer, must be paid to the Company immediately on receipt.
7. RE-SALE OF GOODS SUBJECT TO A RETENTION OF TITLE
7.1. The Customer has the right to sell the Goods which are subject to retention of title, in its own name only at full market value
and in the ordinary course of business.
7.2. Any sale by the Customer of Goods subject to a retention of title, whether in their original condition or incorporated into other goods, will only be effected by the Customer as trustee for the Company and the proceeds of such sale and the rights of the Company’ Customer against its Customer arising from such sale will be held on trust for the Company. The said proceeds must be held in a separate account or otherwise clearly identified in the books and records of the Customer.
7.3. If the Customer resells any Goods then, unless the Goods are clearly identifiable by serial numbers or other distinguishing marks, the Customer is deemed to have disposed of the Goods in the chronological order of supply by the Company to the Customer (oldest to the most recent).
Unless the Customer has inspected the Goods and given written notice to the Company within seven (7) days after delivery that the Goods are defective, do not comply with the relevant specifications or descriptions, or that the Goods are faulty or damaged, the Goods are deemed to have been accepted in good order and condition and compliant with those specifications and descriptions.
9. CANCELLATION OF ORDER AND RETURN OF GOODS
9.1. No order may be cancelled, modified or deferred without the prior written approval of the Company in accordance with
clause 9.2 and if such approval is given and the Customer paid a cancellation and restocking fee (being not less than 10% of
the invoice value of the Goods).
9.2. Subject to clauses 9.3 and 9.4, the Company will only accept the return of any Goods to it by the Customer, if:
9.2.1. the Customer has applied to the Company for approval to return the Goods with seven (7) days of delivery;
9.2.2. the Company has given written approval for the return of the Goods;
9.2.3. the Customer has returned the Goods to the Company’ premises (or such premises as are specified by the Company in its approval referred to in clause 9.2.2) within fourteen (14) days from the date the approval is granted.
9.3. If the Company agrees to the return of Goods:
9.3.1. the Goods, when received by the Company, must be unsoiled, undamaged and in a resalable condition as determined by the Company;
9.3.2. the Customer must pay for the delivery, freight, customs, duties, levies and/or insurance in respect of the return of the Goods to the Company; and
9.3.3. the Customer must bear the risk of loss or damage of the Goods in transit until arrival of the Goods at the return address as advised by the Company.
9.4. The Company will not allow a credit or return of Goods if the Goods are:
9.4.1. imported especially for the Customer or comprise non-standard equipment made to special order; or
9.4.2. marked on the Company’ invoices as “NOT RETURNABLE”.
10.1. the Goods are not paid for in accordance with these Terms or any other applicable written agreement; or
10.2. the Customer is in breach of any provision of these Terms and such breach is not remedied with fourteen (14) days of a request by the Company to do so;
10.3. the Company receives notice that, or reasonably believes that a third party may attempt to take possession of the Goods or attach the Goods pursuant to a writ of execution; or
10.4. any other event occurs which is likely to adversely affect the Customer’s ability to pay for the Goods (including but not limited to the appointment of a receiver, administrator, liquidator or similar person [each an “insolvency representative”] to the Customer’s undertaking), then the Company may at any time thereafter, without notice to the Customer and without prejudice to any other rights which it may have against the Customer, terminate any Agreement relating to the Goods and the bailment referred to in clause 3.7.
11. RIGHT TO ENTER PREMISES
In any of the circumstances referred to in clause 10. , the Customer:
11.1. authorises the Company by itself, its agents or representatives at all reasonable times, without notice, to enter onto and at all necessary time(s), to remain in and on any premises where the Goods are located in order to collect the Goods, without being guilty of any manner of trespass;
11.2. assigns to the Company all the Customer’s rights to enter onto and remain in and on such premises until all the Goods have been collected; and
11.3. must bear or reimburse the Company on a full indemnity basis for all costs and expenses of collecting the Goods and returning the Goods to the Company’s Premises or such other location as the Company determines.
12. ADMINISTRATION, RECEIVERSHIP ETC.
In any of the circumstances referred to in clause 10. :
12.1. neither the Customer nor its insolvency representative is entitled to sell, charge, remove, dispose of, use or otherwise deal
with the Goods in any way inconsistent with the Company’s ownership of the Goods, without the Company’s prior written
12.2. the Customer and its insolvency representative are obliged to return the Goods to the Company immediately or immediately
on his appointment at his expense; and
12.3. the insolvency representative will become personally liable to the Company on a full indemnity basis in respect of any
dealings with or use of the Goods by the Customer or the insolvency representative occurring after the date of appointment of the insolvency representative and must account to the Company or reimburse the Company for all monies received as a result of such dealings or use of the Goods.
13. CUSTOMER’S PROPERTY
13.1. All Customer’s property in or under the Company’s custody and control is and will remain entirely at the risk of the Customer
from the moment the Customer’s property is left at the Company’s Premises until its collection by the Customer.
13.2. The Customer must, at its own expense, maintain the Customer’s property and insure it for its full replacement value against
theft, destruction, fire, water and other risks.
14. GOODS AND SERVICES TAX
14.1. GST is not included in the quoted price unless stated otherwise in the relevant quote, tender, invoice or the like.
14.2. Where GST is imposed on the Company in respect of the supply of the Goods and/or the provision of the Services then the Customer must pay the Company the amount of such GST in addition to the quoted price unless stated otherwise.
14.3. The Company must give the Customer written notice of the amount of any GST payable in respect of the supply of the Goods and/or the provision of the Services and provide a tax invoice showing the amount of GST payable.
15. COMPANY’S LIABILITY LIMITED
15.1. The Company is not subject to, and the Customer releases the Company from any liability (including but not limited to Consequential Loss or Damage) arising from any delay in delivery or provision or fault or defect in the Goods and/or the Services. The Customer acknowledges that the Company is not responsible if the Goods and/or Services do not comply with any applicable safety standard(s) or similar regulation(s), and that the Company is not liable for any claim, cost, damage or demand resulting from such non-compliance.
15.2. If , despite clause 15.1, the statutory provisions under the Competition and Consumer Act 2010 (Cth), the Sale of Goods Act 1923 (NSW) or any other act or the general law impose on the Company a liability for a defect or fault in the Goods then, to the extent to which the Company is able to do so, the Company’s liability under the statutory provisions is limited, at the Company’s option, to:
15.2.1. replacement or repair of the Goods; or
15.2.2. supply of equivalent Goods; or
15.2.3. providing the Services again; or
15.2.4. payment of the costs of having a third party provide the Services,
and in any case, the Company will not be liable for any Consequential Loss or Damage.
15.3. The Customer indemnifies and keeps the Company indemnified from and against all losses, expenses, claims and demands (including but not limited to legal fees and disbursements on a solicitor-client basis), incurred, suffered or made against the Company in connection with: 15.3.1. any conduct by the Company or its employees or agents, or
15.3.2. any representation, description, undertaking, warranty or promise in relation of the Goods and/or the Services, whether express or implied, other than as contained in these Terms,
unless the Customer has specifically notified the Company in writing before the date of the Agreement of such conduct,
representation, description, undertaking, warranty or promise and the Customer’s reliance on it.
16.1. The Company warrants that the Goods will be supplied new (except in the sale of second hand Goods) and in an undamaged condition.
16.2. If the Goods are properly and skilfully used by trained operators for the applications for which the Goods are designed, are housed and operated in a suitable location, are regularly serviced in accordance with the manufacturer’s specifications and are not programmed, repaired or otherwise interfered with by any person not approved by the Company then for the period specifically stated in any Agreement or, if no period is specified, for a period of six (6) months, the Company further warrants that the Goods will be free of any mechanical or electrical defects caused by faulty workmanship or materials.
16.3. The Customer acknowledges and agrees that:
16.3.1. all technical data supplied by the Company in relation to the Goods are approximates only unless advised otherwise
and are subject to alterations by the Company without notice;
16.3.2. it is satisfied from its own enquiries that the specification of the Goods is correct and appropriate for the purpose
required by the Customer; and
16.3.3. any performance values or specifications given by the Company are estimates only and the Company is under no
liability for damages for failure of the Goods to attain such values or meet such specifications.
16.4. Subject to clause 8. , on discovery of any defect in the Goods, the Customer must immediately notify the Company in writing of such defect. The Customer must not carry out any remedial work to the Goods that is alleged to be defective without first obtaining the written consent of the Company to do so.
16.5. The Company warrants that the Services will be provided in a professional and workmanlike manner.
16.6. The provisions of any act or law (including but not limited to the Competition and Consumer Act 2010 (Cth),) implying terms, conditions and warranties, or any other terms, conditions and warranties which might otherwise apply to or arise out of the Agreement in relation to the Goods and/or the Services are hereby expressly negatived and excluded to the full extent permitted by law.
16.7. The Customer expressly acknowledges and agrees that it has not relied on, and the Company is not liable for any advice given by the Company, its servants, agents, representatives or employees in relation to the suitability of the Goods and/or the Services for any purposes.
17. PROVISION OF SERVICES
17.1. The Customer must pay the Service Charges.
17.2. The Customer acknowledges and agrees that, if the Services are repair services to Customer’s property:
17.2.1. while the Company will use its best endeavours to repair all Customer’s property, the Company will not be responsible if the Services are not successful and the Customer’s property cannot be repaired;
17.2.2. the Customer will be liable to pay the Service Charges even if the Services are not successful; and
17.2.3. any time and cost estimate for the completion of the Services is based on the assumption that any spare parts required for the Services are held in stock at the Company’s Premises.
17.3. The Customer acknowledges and agrees that, if the Services are maintenance services to Customer’s property, any time and cost estimate for the completion of the Services is based on the assumption that:
17.3.1. any spare parts required for the Services are held in stock at the Company’s Premises; and
17.3.2. all previous maintenance services have been completed in accordance with the manufacturer’s specifications and
If the Company installs and/or commissions the Goods then:
18.1. site preparation, electrical, pneumatic and exhaust connections must be provided by the Customer;
18.2. positioning of the Goods is the responsibility of the Customer;
18.3. the Customer agrees to provide assistance when needed during installation, commissioning and/or training; and
18.4. any training is limited to an explanation of the specific utilisation of features of the Goods and does not extend to skill training such as provided by colleges and apprentice schemes for machine operation.
19. PERSONAL PROPERTY SECURITY
The Customer acknowledges that if the Company has a security interest in the Goods and/or their proceeds for the purposes of the PPSA then the Company may register its security interest in the Goods and their proceeds on the PPSR. The Customer also undertakes, at its own expense, to promptly do anything (such as supplying information) which the Company requests and reasonably requires the Customer to do for the purposes of ensuring that the security interest is enforceable, perfected or otherwise effective.
20. DUTY AND EXCHANGE RATES
20.1. Customs duties and charges are included in the quoted price at the prevailing rate(s) at the date of the Agreement where applicable.
20.2. Imported products or components are calculated at the exchange rate at the date of offer and included in the quoted price.
20.3. If any of the duties, charges and/or rates referred to in clause 20.1 and 20.2 vary between the date of offer and date of the Agreement, the quoted price will be adjusted in accordance with the variation.
21. CATALOGUES AND TECHNICAL DOCUMENTS
21.1. Particulars in leaflets, catalogues, drawings, brochures and other printed material are illustrations only, form no part of the Agreement between the Company and the Customer, and are not binding on the Company.
21.2. All technical documents such as drawings, illustrations, descriptions, etc., are the exclusive property of the Company. They must not be made available to third parties, or copied, duplicated or used to reproduce any part of the Goods.
22. FORCE MAJEURE
The Company will not be liable for any breach of contract due to any matter or thing beyond the Company’s control (including but not limited to transport stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention of public authority, explosion or accident).
23. WAIVER OF BREACH
No failure by the Company to insist on the strict performance of any of the terms in these Terms is a waiver of any right or remedy which the Company may have, and is not a waiver of any subsequent breach or default by the Customer.
24. NO ASSIGNMENT
Neither the Agreement nor any rights arising under the Agreement may be assigned by the Customer without the prior written consent of the Company which is at the Company’s absolute discretion.
If any provision contained in these Terms is held by a court to be unlawful, invalid or unenforceable, the validity and enforceability of the remaining provisions are not affected.
26. CONTRACT / GOVERNING LAW
The terms of contract between the parties are wholly contained in these Terms and any other writing signed by both parties. The Agreement is deemed to have been made at the Company’s Premises in Sydney and any cause of action is deemed to have arisen there.