POWER PARAMETERS PTY LTD - CONDITIONS OF SALE - 2005
(A) In these Conditions of Sale, unless a contrary intention appears:
"Buyer" means the person to whom Power Parameters sells goods; "Power Parameters" means Power Parameters Pty Ltd; ABN 69 065 377 675;
words implying the singular shall include the plural and vice versa; and words implying one gender shall include any other gender.
(B) Any order placed by the Buyer incorporates these Conditions of Sale. In the event of conflict or inconsistency between these Conditions of Sale and those which may be included in, or implied by, any document forming part of any of the Buyer's inquiry, specification or order, then these Conditions of Sale shall prevail except insofar as these conditions are expressly varied by Power Parameters in writing or otherwise by law.
(C) Should there be a variance and/or inconsistency between any one clause of an offer made by Power Parameters and these Conditions of Sale, then the conditions of the offer shall apply.
(D) Unless Power Parameters has been specifically requested and has contracted in writing to provide technical advice services on the suitability of any offered equipment, the Customer is solely responsible for ensuring that any equipment and services offered by Power Parameters are suitable for the customer's intended purpose and usage.
(E) In addition, and specifically for Energy Systems products and services (eg. uninterruptible power supplies, batteries, generators etc), the Customer is solely responsible for ensuring that the specifications of equipment offered by Power Parameters is of sufficient capacity and output to support the required electrical load for the required duration.
Any quotation provided by Power Parameters is not to be construed as an offer or obligation to sell. Power Parameters reserves the right to accept or reject any orders received.
3. CANCELLATION OR VARIATION
(A) Power Parameters may at any time before the Buyer pays for the goods, terminate the contract without payment of compensation or damages if:
(1) the Buyer being a corporation, an application is made to a Court to wind up the Buyer:
(2) the Buyer being a natural person, a bankruptcy petition against the Buyer is presented to a Court:
(3) execution is levied against any property of the Buyer,
or if the Buyer:
(4) cease business: or
(5) being a natural person, becomes an insolvent under administration, or
(6) being a corporation, enters into a scheme of arranging with its creditors, or has a receiver and manager, an official manager, a provisional liquidator or a liquidator of any part of its assets appointed.
(B) Any variation or termination of an order or contract by the Buyer will bind Power Parameters only if accepted by Power Parameters in writing and as a condition of its acceptance Power Parameters may require the payment by the Buyer of damages suffered by Power Parameters and arising out of such variation or termination.
(A) Any quotation accompanying these Conditions of Sale is valid for the period as stated on the quotation. Thereafter it is subject to written confirmation. Otherwise, all prices are subject to change without notice and all orders are accepted by Power Parameters on condition that they will be invoiced at the price ruling at the date of despatch.
(B) Delivery, unless otherwise stated, is F.O.B. from any Power Parameters Store. Unless a mode of transport is nominated, Power Parameters will nominate their carrier and a delivery fee will be charged.
(C) These prices quoted do not include sales tax unless specifically stated. If applicable, sales tax will be charged unless the Buyer is entitled to an exemption and, when or before the Buyer places the order, supplies Power Parameters with a duly completed sales tax certificate in the form prescribed by law, signed by a person authorised to provide such certification on behalf of the Buyer.
(D) The price and delivery periods quoted are based on the quantities offered by Power Parameters. Power Parameters reserves the right to requote should the quantities ordered by the Buyer differ from the quantities originally offered by Power Parameters.
5. PRICE VARIATIONS
Power Parameters has quoted prices based on a particular exchange rate. Power Parameters will vary the price of their goods if the exchange rate at the time of invoicing varies by more than 2% than when quoted. The exchange rate is determined by the Ozforex spot rates at the close of business on the applicable days. Power Parameters reserves the right to make these adjustments either up or down, on the invoice showing full details of the variation and will provide supporting documentation.
6. CUSTOMS DUTY
All prices are based on the ruling tariff items of the day. Should the classification on the goods be varied, under any circumstance, Power Parameters reserves the right to vary the price of their goods to account for any variation so incurred.
Any items quoted for delivery are estimates only and:-
Power Parameters shall not be liable for any costs, expenses, losses, damages or demands made or suffered by any persons whomsoever and arising of any failure to deliver or any delay in delivery caused or contributed to by any circumstances of whatsoever nature outside Power Parameter's control including in particular but without limiting the generality of the foregoing fire, flood, explosion, strike, lockout or other industrial act or dispute of the breakdown of or accident to plant, unavailability or shortage of raw material, labor, power supplies, transport facilities or Act of God or any order or direction of any Local, State or Federal Government authority or instrumentality.
(A) Power Parameters reserves the right to deliver goods by installments and each installment shall be deemed to have been sold under a separate contract. Failure to deliver any installment shall not entitle the Buyer to repudiate the contract.
(B) Off-loading and/or handling will in all events be the responsibility of the Buyer.
(C) If the goods to be delivered are, at the Buyer's direction, delivered to a destination other than the Buyer's store, Power Parameters will arrange such delivery as agent for the Buyer and all costs for carriage and insurance will be to the Buyer's account.
(D) Availability of goods when offered ex stock is subject to such goods not being sold in another transaction between the date when Power Parameters advises the goods are available and the date when it receives the Buyer's order. Any delivery time offered for equipment made to special customer order is indicative only, and Power Parameters shall not be liable for any loss or damage whatsoever arising as a consequence or result of any such failures to deliver.
8. DAMAGE OR LOSS IN TRANSIT
Where carriage is the responsibility of Power Parameters, it will repair or at its option replace free of charge contract goods lost or damaged in transit to the contractual point of delivery, only if:
(A) The Buyer gives Power Parameters within 7 days of delivery or expected delivery or within such time as will enable Power Parameters to comply with the carrier's conditions of carriage as affecting loss or damage in transit, notice in writing containing the following particulars.
(1) the date on which the Buyer accepted (Or expected) delivery;
(2) a description of the goods (including quantity and type) requiring repair or replacement and the nature of the loss or damage;
(3) if appropriate, the number of Power Parameters' despatch docket; and
(4) if appropriate, the name of the carrier who delivered the damaged goods to the Buyer and the number of the carriers delivery docket; and
(B) (if appropriate) any goods requiring repair or replacement are, within 7 days of notice under sub-clause (A), returned to the premises from which Power Parameters despatched them, by a mode of transport nominated or accepted by Power Parameters, and Power Parameters will pay the reasonable costs of such return if it accepts liability to repair or replace such goods.
(C) Shortages in delivery must be advised in writing within 14 days of receipt of goods.
If the Buyer neglects, fails or refuses to accept delivery of the contract goods or any completed items forming part thereof:
(A) The risk of such goods shall pass to the Buyer forthwith upon the date of Power Parameters' attempted despatch or delivery of the goods;
(B) Power Parameters shall be entitled to present invoices to the Buyer for payment; and
Power Parameters may, at its option, arrange such storage, insurance, demurrage, handling and other charges which shall be paid by the Buyer to Power Parameters upon demand, in addition to the price of such goods.
10. TITLE OF GOODS
(1) Notwithstanding that the goods shall in whole or in part be at the risk of the Buyer from the quoted delivery point onwards, subject to clause 4(B) and 7, the property in the goods shall remain with Power Parameters until they have been fully paid for by the Buyer.
(2) If the Buyer fails to pay for goods on the due date then, even though the vendor reserves title to goods supplied to the buyer and without prejudice to any other rights and remedies the vendor may have, the vendor reserves the right to claim from the Buyer the price of the goods as a liquidated sum.
11. TERMS OF PAYMENT
(1) Unless otherwise stated in the offer all prices are strictly net and payment shall be made in full in advance of delivery of goods.
Where the Buyer has been granted an account with Power Parameters and the conditions under which the account was granted have not been breached, then payment in full shall be made by 30 days from date of invoice. Where the conditions under which the account with Power Parameters was granted have been breached, Power Parameters reserves the right to demand payment in full in advance of delivery of goods.
(2) Should the Buyer default in making any payment due to Power Parameters in accordance with paragraph (1) of this clause, Power Parameters shall have the right, in addition to all other rights to which Power Parameters is entitled at law, to charge interest at the rate of 3% 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. 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.
(A) No claims will be recognised unless advised in writing within 14 days of receipt of goods. No goods will be accepted for return without authorisation from the Branch Manager. Invoice number must be quoted when making a written claim. All goods must be in original carton.
(B) A 20% restocking fee may be applied on goods returned.
(C) Under no circumstances will any credit be allowed for the return of non-standard equipment made to or purchased for a special customer order, or goods returned, other than in accordance with sub-clause (A).
13. DEFECTS LIABILITY
Power Parameters will repair or at its option replace any part found to be defective or faulty within twelve (12) months after the date of despatch of the goods to the Buyer but only if:-
(1) a claim is made in writing to Power Parameters:
(A) within fourteen (14) working days after the date of delivery by Power Parameters to the Buyer of the item or items said to be defective or faulty in the case of a defect or fault apparent by normal visual inspection: or
(B) within fourteen (14) working days after the Buyer did (or might reasonably have been expected to) detect such fault or defect, in the case of a fault or defect not so apparent;
(2) unauthorised repairs or alterations to the goods have not been carried out and the goods have not been modified or added to in any way or used other than in accordance with the manufacturer's specifications.
(3) the defective or faulty parts are removed by the Buyer and are returned to Power Parameters at the cost and expense of the Buyer and the cost of freighting any parts required or replaced by Power Parameters is borne by the Buyer; and
(4) defective or faulty parts replaced by Power Parameters become the property of Power Parameters.
14. POWER PARAMETERS' LIABILITY
(A) Power Parameters' liability to the Buyer for a breach of a condition or warranty implied by statute, the common law, equity, trade, custom, usage or otherwise shall, to the maximum extent permitted by law, be limited at Power Parameters' option to:
(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; or
(4) the payment of the cost of having goods repaired and to the maximum extent permitted by law but subject to any rule of law to the contrary Power Parameters shall not be under any liability whether in contract, tort or otherwise for any injury, damage or loss (including consequential damage or loss) arising out of this contract or the goods supplied pursuant thereto including any defects therein or workmanship thereof or by any negligence on the part of Power Parameters or any of its agents, employees or contractors in connection with or in relation to the supply of any goods or services under this contract.
(B) The Buyer shall take all steps to back-up mass storage devices and macros present in delivered to Power Parameters. Whilst all reasonable efforts will be taken to preserve data on mass storage devices, Power Parameters accepts no responsibility for lost or corrupted data during the repair process.
(C) The Buyer acknowledges that:
(1) the Buyer has read condition 14(A) and understands the nature and effect thereof;
(2) alternative sources of supply are available to the Buyer and it is open to the Buyer to purchase the goods under a contract which does not include a term in the form of or to the effect of condition 14(A).
15. INFORMATION AND DRAWINGS
All descriptive specifications, illustrations, drawings, data, dimensions and weights furnished by Power Parameters or otherwise contained in catalogues, price lists and other advertising matter of Power Parameters are approximate only and are intended to be by way of general description of the goods and shall not form part of the contract unless certified by Power Parameters in writing in which case they shall be subject to recognised tolerances.
16. SPARE PARTS
Power Parameters hereby gives notice to the Buyer that no promise has been made to the Buyer that spare parts of the goods (other than parts nominated by Power Parameters upon or prior to the acceptance by Power Parameters of the Buyer's order) would be available after the date of despatch of the goods to the Buyer and the Buyer acknowledges having received this notice prior to its acquisition of the goods.
Failure by Power Parameters 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 Power Parameters and shall not be deemed a waiver of any subsequent breach of any term or condition.
All goods are sold and services performed on the strict understanding that all licences and permits under all relevant statutes, ordinances, rules and regulations have been obtained by the Buyer and the Buyer will ensure that the installation and use of the equipment meets all statutory requirements.
(A) The Buyer warrants that the manufacture by Power Parameters of any goods in accordance with the Buyer's design instruction or specifications will not cause Power Parameters to infringe any patent registered design or trademark and the Buyer agrees to indemnify Power Parameters against any infringements or unauthorised use of any patent, trademark, design or copyright.
(B) It is specifically agreed that the sale and purchase of the goods does not confer on the Buyer any licence or rights under any patent, trademark or copyright the property of Power Parameters.
20. PARTIAL INVALIDITY
In the event of one or more clauses of these Conditions of Sale or of any clause included in Power Parameters' offer being considered legally invalid by a Court of Law, the remainder shall not be affected.
21. LEGAL CONSTRUCTION
Unless otherwise agreed by Power Parameters in writing, any contract between Power Parameters and the Buyer shall be governed by the laws for the time being in force in the State of Victoria.
Warranty on batteries only applies on the following conditions:
(A) The temperature of the operating environment has not exceeded 25 degrees Celsius.
(B) Charging equipment and load has been pre-approved by Power Parameters Pty Ltd