|Datapro Communications Pty Ltd TERMS AND CONDITIONS OF SALE.|
1. These Terms and Conditions of Sale (Conditions of Sale) apply to any purchase or order placed by a party (the Buyer) with The Trustee for Freestone Nominees Trust Trading as Datapro Communications Pty Ltd ABN 88 423 720 983 (Datapro) for the purchase of the goods subject to the applicable on-line purchase or order (goods) by the Buyer. Datapro may change these Conditions of Sale at its discretion and such amended Conditions of Sale will be either posted on Datapro website or provided in writing to the Buyer and will apply to all goods ordered by the Buyer from the date of such notice.
2. These Conditions of Sale supersede any previous terms or arrangements in connection with the supply of the goods (however communicated), including without limitation any of the Buyer’s terms of trade or purchase order terms and conditions, so that any supply of goods by Datapro is on these Conditions of Sale only, unless Datapro agrees otherwise in writing. Except as agreed in writing, these terms constitute the entire agreement between the parties in relation to the supply of the goods.
3. Should there be an inconsistency between any one clause of an offer made by Datapro and these Conditions of Sale, then the conditions of the offer shall apply to the extent of the inconsistency.
ORDERS AND ACCEPTANCE
4. Any quotation provided by Datapro is not to be construed as an offer or obligation to sell.
5. An order for goods by the Buyer constitutes an offer to purchase the goods by the Buyer subject to these Conditions of Sale and will be binding on the Buyer if accepted by Datapro. Orders accepted by Datapro may not be cancelled or altered in whole or in part without Datapro written consent.
6. Datapro may at its absolute discretion decline any order either in whole or in part.
7. Datapro reserves the right to specify the minimum order value that will be accepted from time to time. Datapro may at its discretion, supply orders below the specified minimum order value and charge a handling fee, as determined by Datapro on all such orders.
8. In placing any order (where credit terms are approved) the Buyer expressly represents that the Buyer is solvent, has not committed an act of bankruptcy, and knows of no circumstances which would entitle any creditor or secured creditor to appoint a receiver or which would entitle any creditor or shareholder to apply to the Court to liquidate the Buyer or exercise any other rights over or against the Buyers’ assets.
9. Any prices for goods in a quotation store provided by Datapro accompanying these Conditions of Sale are valid for 30 days from the date of the quotation, unless otherwise agreed in writing by Datapro.
10. Otherwise, the price for the goods will be as shown on the on-line store at the time of purchase. All prices and specifications of the goods, as well as Datapro range of goods, are subject to change at Datapro discretion and without notice.
11. Unless otherwise stated by Datapro, the published prices whether on-line or in a Quotation include GST, duty, customs, tariff, regulatory charge or fee. No further charges other than Freight costs shall be payable by the Buyer to Datapro.
12. Any prices quoted are based on the quantities selected by the Buyer. Datapro reserves the right to requote should the quantities ordered by the Buyer differ from the quantities originally offered by Datapro.
13. Where Datapro has quoted prices for non-listed products based on a particular exchange rate, Datapro may vary the price of the goods due to fluctuations in the particular exchange rate, based on the published ANZ Bank exchange rates on the day of invoicing. Datapro reserves the right to make these adjustments, either up or down, on the invoice showing full details of the adjustment and will provide supporting documentation.
TERMS OF PAYMENT
14. The Buyer must pay the price for the goods in full, in advance of, or on delivery, of the goods.
15. Where the Buyer has been granted a credit account with Datapro and the conditions under which the account was granted have not been breached by the Buyer, then the Buyer must pay the prices for the goods in full within the agreed payment terms from the date of invoice by Datapro. Where the conditions under which the account with Datapro was granted have been breached, Datapro reserves the right to demand payment in full, in advance of, or on delivery, of goods.
16. Should the Buyer default in making any payment due to Datapro in accordance with these Conditions of Sale, Datapro shall have the right, in addition to all other rights to which Datapro is entitled at law, to charge interest at the rate of 1% per annum in excess of the interest rate prescribed by the Commonwealth Bank of Australia for overdrafts up to $100,000 calculated from the date of invoice to the actual date of full and final payment, and may suspend any other provision of goods or services to the Buyer until full payment is made by the Buyer. Any payments by the Buyer shall be credited first against any interest so accrued and the balance of payment, if any, shall be applied in reduction of the outstanding balance of the account.
17. Datapro may set off any amount owed by Datapro to the Buyer from any amount due by the Buyer to Datapro.
COLLECTION OR DELIVERY
18. Delivery, unless otherwise stated, is F.O.B. from any Datapro store or premises, and the Buyer is responsible for the risks and cost of delivery or collection from that point. Unless a mode of transport is agreed, Datapro will nominate its carrier. The costs of delivery are payable by the Buyer and will be shown in the total during Checkout process determined by postal code.
19. Datapro will use its reasonable endeavors to deliver the goods to the Buyer (at the Buyer’s cost) using a third party courier company. Any failure or delay by Datapro to deliver goods by any requested time by the Buyer shall not confer any right of cancellation or refusal of delivery on the Buyer or render Datapro liable for any loss or damages directly or indirectly sustained by the Buyer arising out of or in connection with the delay.
20. Datapro reserves the right to deliver goods by installments only in consultation with the Buyer and by agreement. Failure to deliver any installment shall not entitle the Buyer to repudiate these Conditions of Sale.
21. Upon delivery off-loading and/or handling will in all events be the responsibility of the Buyer. The Buyer must provide (at its cost) suitable and safe access to Datapro for delivery (if applicable).
22. The Buyer agrees that a delivery docket signed, whether by any employee of the Buyer, Servant or Agent or any other person signing for or on behalf of the Buyer, shall be conclusive evidence of delivery.
23. If the Buyer neglects, fails or refuses to collect or accept delivery of the contract goods or any completed items forming part thereof:
23.1 the risk of such goods shall pass to the Buyer forthwith upon the date of Datapro attempted dispatch or delivery of the goods or the date the goods were made available for collection (as applicable);
23.2 the Buyer is not relieved of its obligation to pay the price for the goods in the event these have been ordered on credit terms arrangement; and
23.3 Datapro may, at its option, arrange such storage, insurance, demurrage, handling and other services in relation to the goods, the cost of which shall be paid by the Buyer to Datapro upon demand, in addition to the price of such goods.
DAMAGE OR LOSS IN TRANSIT
24. Any claims by the Buyer for short or wrongful delivery of the goods must be notified to Datapro in writing within
2 business days after delivery of the goods to the Buyer and any claim which the Buyer does not notify within this time (time being of the essence) shall be deemed to have been absolutely waived by the Buyer. The Buyer’s notice must contain the following particulars.
24.1 the date on which the Buyer accepted delivery;
24.2 a description of the goods (including quantity and type) requiring repair or replacement and the nature of the loss or damage;
24.3 if appropriate, the number of Datapro dispatch docket; and
24.4 if appropriate, the name of the carrier who delivered the
goods to the Buyer and the number of the
carrier’s delivery docket.
25. Any goods requiring repair or replacement must be returned to Datapro dispatched by the Buyer within 7 days from the date of the notice, by a mode of transport nominated or accepted by Datapro and Datapro will pay the reasonable costs of such return if it accepts liability to repair or replace such goods.
26. Datapro is not liable for delay in performing, or non-performance, of any of its obligations under these Conditions of Sale to the extent caused by events or circumstances beyond its reasonable control (including, without limitation, acts of God, civil or military authority, accidents, floods, earthquakes, cyclones, hurricanes, fire, or other natural disasters, strikes, inclement weather, labor or industrial disputes, shortage of suitable part or components or
other materials, mechanical breakdown, tempest and war) and in such circumstances, the time or times for performances of the obligations to be performed by Datapro will be extended by a period equal to each such period of delay.
RISK AND TITLE IN THE GOODS
27. Risk in the goods passes from Datapro to the Buyer upon the time of receipt and payment of the goods by the Buyer.
28. The legal and equitable title to the goods will only be transferred from Datapro to the Buyer when the Buyer has paid all monies that are owed to Datapro on any account whatsoever in relation to the goods.
29. In the case of supply of goods on credit terms, the Buyer acknowledges and agrees that it grant to Datapro a security interest for purposes of the Personal Property Securities Act 2009 (Cth) (PPSA) in the goods by virtue of Datapro retention of title in the goods. The Buyer undertakes to:
29.1 do all things necessary and provide Datapro on request all information it requires to register, perfect, ensure the priority of, and enforce such security interests, including register a financing statement or financing change statement on the Personal Properties Securities Register for purposes of the PPSA; and
29.2 not to change its name in any form or other details on such register without first notifying Datapro.
30. The Buyer agrees to waive its rights to receive a verification statement in respect of any financing statement or financing change statement in respect of the security interest created by this clause.
31. To the maximum extent permitted by law, the Buyer agrees that the following sections of the PPSA will not apply: section
130, section 142, and section 143. To the maximum extent permitted by law, the Buyer agrees to waive any rights pursuant to, and we agree to contract out of, the following sections of the PPSA: section 95, section 123(2), section
129(2), section 132(3)(d), section 134(2), and section 135.
GOODS AND SERVICES TAX (‘GST’)
32. All prices will be quoted inclusive of GST (as defined in the A New Tax System (Goods and Services Tax) Act 1999).
Any discounts or other terms agreed between the Buyer and Datapro will be calculated on and applied to the price inclusive of GST.
33. If any part of the price is referable to both a Taxable Supply (as defined in the A New Tax System (Goods and Services Tax) Act 1999) and anything that is not a Taxable Supply, the apportionment of the purchase price between those supplies shall be determined by Datapro and GST applied accordingly.
34. If Datapro determines on reasonable grounds that an adjustment is required to the price, it will promptly issue any ‘Adjustment Notes’ that are prescribed by the A New Tax System (Goods and Services Tax) Act 1999.
REPAIR, REPLACE AND REFUNDS
35. All Goods repairs, replacements and refunds shall be in accordance with rules of the Australian Competition and Consumer Commission applicable at the time of purchase. https://www.accc.gov.au/consumers/consumer-rights-guarantees/repair-replace-refund#repair-replacement-or-refunds. No claims will be recognized unless it complies with these laws and rulings. All claims shall be advised in writing within 14 days of receipt of goods or when the defect is first noticed. No goods will be accepted for return without authorization from Datapro. The Buyer must make a written claim for the authorization and must quote the relevant invoice number and date of purchase. Any goods which the Buyer returns will only be accepted if they meet the conditions of the ACCC rulings.
36. The Buyer shall return the Goods at their expense again in accordance with ACCC consumer rights rulings.
37. Under no circumstances will any credit be allowed for the return of made to order goods, or goods returned other than in accordance with these Conditions of Sale.
38. Any information, including specifications, illustrations, drawings, data, dimensions and weights, furnished by Datapro to the Buyer or otherwise contained in the on-line store, catalogues, price lists and other advertising matter of Datapro in connection with the goods, are provided for the convenience of the Buyer, and the Buyer is totally responsible for any reliance placed on that information, and Datapro gives no warranty of and disclaims all responsibility in relation to the accuracy, sufficiency or otherwise in relation to that information at common law and in tort (including negligence). The Buyer’s subsequent purchase of the goods is deemed for all purposes to have been based on the Buyer’s own thorough investigations and determinations and not on information told to it by Datapro. The Buyer is deemed to have carefully and fully examined all the information and documents provided by Datapro before its purchase of the goods.
SUITABILITY AND FIT-FOR-PURPOSE
39. Unless otherwise agreed in writing by Datapro the Buyer is solely responsible for ensuring that any goods are suitable and fit for the Buyer’s intended purpose and usage. Datapro has no liability to the Buyer if the Equipment is not suitable or fit for the Buyer’s intended purpose and usage. The Buyer is solely responsible for ensuring that the specifications of the goods are of sufficient capacity and output to support the required electrical load for the required duration.
40. The Buyer also acknowledges that it has skills and the appropriate licenses to use the Goods purchased realizing that these Goods (Electrical test equipment) are subject to dangerous Voltages and Currents and it is the responsibility of the Buyer to ensure the proper handling, connections to live conductors are in accordance with Electrical Standards of practice.
41. The Buyer acknowledges that the Buyer has read and understands the nature and effect thereof, and agrees to, these Conditions of Sale, and alternative sources of supply are available to the Buyer and it is open to the Buyer to purchase the goods under a contract with such alternative suppliers.
42. Unless agreed in writing by Datapro the Buyer acknowledges and agrees that Datapro gives no promise, warranty or representation to the Buyer that spare parts of the goods (other than parts nominated by Datapro upon or prior to the acceptance by Datapro of the Buyer’s order) will be available after the date of dispatch of the goods to the Buyer.
43. All goods are sold and services performed on the strict understanding that the Buyer is responsible for obtaining any licenses and permits under all relevant laws, standards, statutes, ordinances, rules and regulations in connection with the goods and services and the Buyer is responsible for ensuring that the installation and use of the goods complies with all such requirements.
WARRANTY AND DEFECTS LIABILITY
44. Datapro will repair or at its option replace any good found to be defective or faulty and notified by the Buyer to
Datapro within twelve (12) months (or in accordance with the stated manufacturer’s Warranty at the time of purchase) after the date of dispatch of the goods to the Buyer but only if:
44.1 a claim is made in writing to Datapro within the earlier of fourteen (14) working days after the date the Buyer discovered the defect or fault, or the date the Buyer or ought reasonably to have detected such fault or defect;
44.2 the goods have not become damaged or defective as a result of improper use, including if the Buyer has not used the good in a manner that is contrary to any directions or instructions by Datapro or contrary to any specifications or instructions manual;
44.3 the Buyer has not otherwise modified, abused, neglected, accidentally damaged or excessively worn the goods;
44.4 in the case of batteries:
44.4.1 the temperature of the operating environment has not exceeded 25 degrees Celsius; and
44.4.2 the charging equipment and load have been pre-approved by Datapro;
44.5 unauthorized repairs or alterations to the goods have not been carried out;
44.6 the defective or faulty parts are removed by the Buyer and are returned to Datapro at the cost and expense of the Buyer and the cost of freighting any parts required or replaced by Datapro is borne by the Buyer; and
44.7 defective or faulty parts replaced by Datapro become the property of Datapro.
45. Unless otherwise specified, the process for making a Warranty claim by the Buyer is as follows:
45.1 any good subject to a warranty claim should be returned to the place of purchase for assessment by Datapro
or its nominee. The Buyer is responsible for returning the good;
45.2 the Buyer must present proof of purchase when making a warranty claim; and
45.3 the claim under a warranty will be assessed by Datapro or its nominee (acting reasonably) and will be accepted if:
45.3.1 a relevant defect is found; and
45.3.2 the warranty claim is made in compliance with clause 45.
46. Upon acceptance of a claim under a warranty, Datapro will arrange a replacement good or arrange for the good to be repaired free of charge. This may in some instances require the Goods to be returned to the overseas manufacturer and will incur delays. Datapro will use its best endeavors to action this as quick as possible.
MODIFICATIONS OF LABELS
47. The Buyer shall not, without Datapro written consent, alter, remove, or obliterate any labels which Power
Parameters attaches to the goods.
48. These Conditions of Sale will immediately terminate upon the occurrence of any of the following events:
48.1 if the Buyer fails to perform or observe any of the obligations and undertakings on its part to be performed in these Conditions of Sale that cannot be remedied, or if capable of remedy in the opinion of Datapro if the Buyer fails to remedy such breach within 7 days of notice from Datapro requiring the alleged breach to be remedied (such notice giving adequate particulars of the alleged breach and of the intention of
the party giving notice to terminate these Conditions of Sale), upon expiration of the required remedy period;
48.2 if the Buyer is insolvent (other than for the purposes of reconstruction) or if an order is made or a resolution is passed for the winding up of the Buyer or if a receiver or receiver and manager or administrator of the undertaking or property of the Buyer or any part has been appointed.
49. In the event of a termination of these Conditions of Sale, then without prejudice to any other rights which Datapro may have at law or under these Conditions of Sale:
49.1 Datapro or its agents may (at the Buyer’s cost) without notice to the Buyer enter the Buyer’s premises or any premises under the control of the Buyer for the purposes of recovering any goods which are the property of Datapro and the Buyer must provide all assistance reasonably required by Datapro or its agents to recover the goods in an efficient, orderly and safe manner; and
49.2 the Buyer must pay to Datapro all reasonable costs and disbursements incurred by Datapro in pursuing any recovery action, or any other claim or remedy against the Buyer, including debt recovery fees and legal fees incurred by Datapro on a solicitor client basis and as a liquidated sum.
50. The Buyer must maintain at its own cost and expense a comprehensive all risk insurance policy for the goods for the value of the goods, which will insure the goods from the time the Buyer takes possession of the goods, until title in the goods has transferred to the Buyer in accordance with these Conditions of Sale.
51. The Buyer agrees to indemnify and keep indemnified and hold Datapro harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by Datapro and from and against all actions, proceedings, claims or demands made against Datapro in connection with these Conditions of Sale, including:
51.1 any loss or damage to the goods or other property of Datapro;
51.2 to the extent caused by the Buyer’s act, omission, negligence, breach of these Conditions of Sale, or willful misconduct or of its employees, agents or other contractors;
51.3 as a result of the Buyer’s failure to comply with any laws, licenses, rules, standards, work practices or regulations applicable in relation to the goods or the use of the goods; or
51.4 as a result of any compliance or adherence by Datapro with any of the Buyer’s instructions in relation to the goods or their manner of fabrication or delivery.
52. Datapro reserves the right, irrespective of whether or not an order has been accepted and without notice to
the Buyer, to withhold supply to the Buyer and Datapro will not be liable for loss or damage resulting directly or indirectly from such action where:
52.1 Datapro has insufficient Goods to fill the order;
52.2 the goods ordered have been discontinued; or
52.3 Datapro has determined in Datapro absolute discretion that credit should no longer be extended to the Buyer.
53. Notwithstanding anything else in these Conditions of Sale, and to the extent permissible by law:
53.1 Datapro aggregate liability under or in connection with these Conditions of Sale, whether under the law of contract, tort, statute or otherwise, shall be limited to the price paid to Datapro by the Buyer for the goods giving rise to the claim; and
53.2 Datapro has no liability to the Buyer for any special, incidental, indirect or consequential loss or damage suffered by the Buyer in connection with se Conditions of Sale including economic loss, loss of profits or revenue, loss of opportunity, or loss under third party arrangements.
54. To the extent permitted by law, all conditions, warranties, guarantees in connection with these Conditions of Sale or the goods (including as to the condition, quality, fitness for purpose, merchantability, acceptability or compliance with description of a good), rights, remedies, liabilities and other terms implied or imposed by statute, custom or the common law are excluded. If Datapro liability to the Buyer for a breach of such a term implied by law cannot be excluded, to the maximum extent permitted by law, Datapro liability for breach of such implied term is limited at Datapro option to:
54.1 the replacement of the goods or the supply of equivalent goods;
54.2 the repair of the goods;
54.3 the payment of the cost of replacing the goods or of acquiring equivalent goods; or
54.4 the payment of the cost of having goods repaired.
55. The Buyer must keep confidential and must not disclose to any person, all information in connection with the supply of the goods, including these Conditions of Sale, the prices of the goods, and any information designated by Datapro as confidential, unless the Buyer is required by law to disclose such information or the information has become public information or with prior written consent of Datapro.
56. The Buyer warrants that the manufacture or supply by Datapro of any goods in accordance with the Buyer’s design, instruction or specifications will not cause Datapro to infringe any intellectual property rights of any third party, including any patent, registered design, trademark, copyright, or any other form of intellectual property whatsoever, and the Buyer agrees to indemnify Datapro against any costs incurred by Datapro in connection with any claim for infringement or alleged infringement of any third party intellectual property right.
57. It is specifically agreed that the sale and purchase of the goods does not confer on the Buyer any right, title or interest in any intellectual property rights of Datapro and the Buyer must not use any such intellectual property rights of Datapro without prior written consent by Datapro.
58. These Conditions of Sale are governed by the laws in Victoria. The courts of Victoria or the Federal Court of Australia (Melbourne Registry) have non-exclusive jurisdiction in connection with these Conditions of Sale. The parties submit to the jurisdiction of those courts and any courts which have jurisdiction to hear appeals from those courts.
59. The Buyer must not assign, novate, or otherwise deal with its rights and obligations under these Conditions of Sale without the prior consent of Datapro.
60. Any notice to be served by a party under these Conditions of Sale will be sufficiently served if sent by post, email or facsimile transmission to the other party’s address, email address or facsimile number as stated in these Conditions of Sale or the relevant order or otherwise notified in writing by the parties.
61. Each party will take all steps, execute all documents and do all things reasonably required by the other party to give effect to any of the transactions contemplated by these Conditions of Sale.
62. Failure by Datapro to insist upon on the strict performance of any term or condition herein contained shall not be deemed a waiver of any such term or condition or any other term or condition hereof or of any of the rights of Datapro and shall not be deemed a waiver of any subsequent breach of any term or condition. A waiver of a right, power or remedy must be in writing and signed by Datapro.
63. In these Conditions of Sale:
63.1 neuter includes masculine and feminine;
63.2 singular includes plural and vice versa;
63.3 reference to a person includes a natural person, corporation, partnership, body corporate, association, governmental or local authority or agency or other entity;
63.4 headings do not affect interpretation;
63.5 no rule of construction applies to the disadvantage of a party because that party put forward these Conditions of Sale or any portion of it;
63.6 if a provision of these Conditions of Sale would, but for this clause, be unenforceable, the provision must be read down to the extent necessary to avoid that result and if the provision cannot be read down to that extent, it must be severed without affecting the validity and enforceability of the remainder of these Conditions of Sale;
63.7 reference to a party if more than 1 means each of them jointly and severally, and includes a successor to the rights or obligations of that party under these Conditions of Sale;
63.8 reference to legislation includes the legislation as amended, any substituted legislation, any sub-ordinate legislation under that legislation and any orders or regulations under that legislation;
63.9 another grammatical form of a defined word or expression has a corresponding meaning;
63.10 reference to a clause, paragraph, schedule or annexure is to a clause or paragraph of, or a schedule or annexure to, these Conditions of Sale, and a reference to these Conditions of Sale includes any schedule or annexure;
63.11 a reference to a document includes the document as assigned, novated, amended, supplemented or replaced from time to time;
63.12 a reference to A$, $A, dollar or $ is to Australian currency;
63.13 a reference to time is to Melbourne, Victoria time;
63.14 references to “includes” or “including” or “for example” means without limitation;
63.15 if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed, or the event must occur on or by the next business day.
© 2016 Datapro Communications Pty Limited