Terms and Conditions of Sale
1.1 In these Terms: “Company” means Trisan Australia Pty Ltd “Customer” means the purchaser of Goods from the Company. “Goods” means all goods sold and/or delivered by the Company to the Customer. “Terms” means these terms and conditions of sale, as may be amended from time time by Trisan Australia P/L.
2.1 These Terms apply to all contracts for the sale of Goods by the Company.
2.2 No amendment, alteration, waiver or cancellation of any of these Terms is binding on the Company unless confirmed by the Company in writing.
2.3 The Customer acknowledges that no employee or agent of the Company has any right to make any representation, warranty or promise in relation to the Goods for the sale of the Goods other than as contained in these Terms.
3.1 Prices are determined at the time of order and or prior to payment of the deposit, are subject to change without notice.
3.2 Unless otherwise specified, prices do not include transportation costs and are exclusive of goods and services tax. Products are supplied ex-works.
4.1 Payments are to be made to the Company within 30 days from the month of invoice for those Products. Trisan Australia reserves the right to offer other payment terms at is discretion. Payment must be in a form acceptance to Trisan Australia and without any deduction, withholding, set-off or counter claim of any nature.
5.1 Trisan Australia will make all reasonable efforts to deliver the Products to the Customer on the date(s) applicable under a Contract, but shall be under no obligation or liability to the Customer for failing to do so.
5.2 Delivery shall be effected upon:
(a) physical delivery of the Products to the address requested by the Customer; or
(b) pick up by Customer; or
(c) physical delivery to the Customer’s nominated carrier.
5.3 The Customer must, within 5 days of being notified of their availability, collect or accept delivery of the Goods and pay the balance of the invoice price.
5.4 If the Customer fails to collect the Goods or accepts delivery with 21 days of being notified of their availability, the Company may terminate this contract, keep the deposit, if paid, and resell the Goods.
5.5 The Company reserves the right to deliver the Goods in whole or in 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 Goods.
5.6 Any failure on the part of the Company to deliver instalments within any specified time does not entitle the Customer to repudiate the contract with regard to the balance remaining undelivered.
6.1 Legal and beneficial ownership of the Goods will not pass to the Customer until such time as the Goods have been paid in full in cash or cleared funds.
7. Risk and Insurance
7.1 The Goods are entirely at the risk of the Customer from the moment of delivery to the Customer’s point of delivery or on collection, even though title in the Goods has not passed to the Customer at that time.
7.2 The Customer must, at its own expense, maintain the Goods and insure them for the benefit of the Company against theft, breakdown, fire, water and other risks as from the moment of delivery to the Customer and until title in the Goods has passed to the Customer.
8.1 Unless the Customer has inspected the Goods and given written notice to the Company within 2 days after collection or delivery that the Goods do not comply with the relevant specifications or description, the Goods are deemed to have been accepted in good order and condition.
9.1 No order may be cancelled, modified or deferred without the prior written consent of the Company (which is at the Company’s sole discretion). If such consent is given it is, at the Company’s election, subject to the Company being reimbursed all losses, including loss of profits, and paid cancellation fee (being not less than 30% of the invoice price of the Goods).
10. Intellectual Property
10.1 All drawings, know-how designs, specifications, inventions, devices, developments, processes, copyrights and other information or industrial or intellectual property disclosed or otherwise provided to the Customer by Trisan Australia or otherwise substisting in the Products and all rights therein (collectively Intellectual Property) will remain the property of Trisan Australia and will be kept confidential by the Customer. The Customer shall have no claim to, nor ownership interest in, any Intellectual Property. The Customer acknowledges that no license or rights of any sort are granted to the Customer in respect of any Intellectual Property, other than the limited right to use Products purchased from Trisan Australia for the purpose they are supplied by Trisan Australia.
10.2 The Customer warrants that any Products manufactured, constructed or supplied by Trisan Australia which are based in whole or in part upon designs, drawings, specifications or information supplied to Trisan Australia by or on behalf of the Customer shall not infringe any letters, patents or registered designs or any other industrial or intellectual property rights of any person.
11. Confidential Information
11.1 All information furnished or made available by Trisan Australia to the Customer in connection with the subject matter of these Terms and Conditions or the supply of Products shall be held in the strictest confidence by the Customer. The Customer agrees not to use such information or disclose such information to
(a) at the time of disclosure was or thereafter becomes, generally available to the public by publication or otherwise through no breach by the Customer of any obligation herein.
(b) the Customer can show by written records was in the Customer’s possession prior to disclosure by Trisan Australia; or
(c) is legally made available to the Customer by or through a third party having no direct or indirect confidentiality obligation to Trisan Australia with respect to such information.
12. Claims and Returns
12.1 All credit claims and requests for return of products must be addressed to the Trisan Australia. A 20% Re-stocking Fee applies to all returns. Items must be returned in good and saleable condition to the address specified on the Return for Credit Authorisation. Any items received soiled or damaged or deemed unsellable by Trisan Australia will be returned to the sender (freight forward) via Trisan Australia’s preferred carrier.
(a) Examination of the Products shall be made by or on behalf of the Customer, and unless within 10 business days of delivery of the Products, the Customer gives written notice that the Products do not comply with the applicable Contract, the Products shall be deemed to have been in all respects supplied in accordance with the relevant Contract, and the Customer shall be bound to accept and pay for the Products accordingly.
(b) Claims by the Customer in respect of Products which have not been supplied in accordance with the relevant Contract will only be considered by Trisan Australia if:
(a) the claim is made within 10 businesss days of the date of delivery of the Products;
(b) representatives of Trisan Australia have been afforded a reasonable opportunity to inspect the Products; and
(c) the Products are subsequently returned to Trisan Australia as directed by Trisan Australia with respect to the Return for Credit process.
13. Limited Liability
13.1 These Terms do not affect the rights, entitlements and remedies conferred by the Trade Practices Act 1974.
13.2 The Company is not subject to, and the Customer releases the Company from, any liability (including but not limited to consequential loss or damage) because of any delay in delivery or fault or defect in the Goods. The Customer acknowledges that the Company is not
(a) responsible if the Goods do not comply with any applicable safety standard or similar regulation; and
(b) liable for any claim, damage or demand resulting from such non-compliance.
13.3 If any statutory provisions under the Trade Practices Act 1974 or any other statute apply to the contract between the Company and the Customer (Contract) then, to the extent to which the Company is entitled to do so, the Company’s liability under the statutory provisions is limited, at the Company’s option, to:
(a) replacement or repair of the Goods or the supply of equivalent Goods; or
(b) payment of the cost of replacing or repairing the Goods or of acquiring equivalent goods; and In either case, the Company will not be liability for any consequential loss or damage or other direct or indirect loss or damage.
14.1 All Goods supplied are covered by such warranties as are specified by the manufacturer and supplied subject to the product standards detailed by the manufacturer.
14.2 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 alleged defective Goods without first obtaining the written consent of the Company to do so.
14.3 The provisions of any act or law (including but not limited to the Trade Practices Act 1974) implying terms, conditions and warranties, or any other terms, conditions and warranties which might otherwise apply to or arise out of the Contract are hereby expressly negatively and excluded to the full extent permitted by law.
14.4 The Customer expressly acknowledges and agrees that it has not relied upon, and the Company is not liable for any advice given by the Company, its employees, agents or representatives in relation to the suitability for any purpose of the Goods.
15. Display and Samples
15.1 Any display product or sample inspected by the Customer is solely for the Customer convenience and does not constitute a sale by sample.
16.1 The terms of the Contract are wholly constrained in these Terms and any other writing signed by both parties. The Contract is deemed to have been made at the Company’s place of business where an order was placed and any cause of action is deemed to have arisen there.
17. Right to Enter Premises
17.1 In any of the circumstances referred to in clause 14, the Customer:
(a) authorizes the Company by itself, its agents or representatives at all reasonable times, without notice, to enter onto (with force if reasonably necessary) and 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; and
(b) 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.
18. Force Majeure
18.1 The Company will not be liable for any breach of contract due to any matter of 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 or public authority, explosion or accident.
19. Waiver of Breach
19.1 No failure by the Company to insist on strict performance of any of 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.
20. No Assignment
20.1 Neither the Contract, nor any rights under the Contract may be assigned by the Customer without the prior written consent of the Company, which is at the Company’s absolute discretion.
21.1 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.
22. Governing Law
22.1 These Terms and the Contract shall be governed by the law of South Australia and the parties submit to the courts of South Australia in respect of any dispute arising.