Dellma Pty Ltd trading as KW Automation
Terms & Conditions of Sale (Equipment)
By accepting a quotation for goods and services from Dellma Pty Ltd trading as K.W. Automation (A.B.N. 16164494286) (Hereinafter referred to as the “Company”) or placing an order for goods and services with The Company the purchaser (Hereinafter referred to as the “Buyer”) acknowledges having agreed to purchase the said goods and services subject to the terms and conditions of sale set out herein, provided that the Buyer may agree in writing with The Company to vary such terms and conditions.
2. EXCLUSION OF BUYER’S TERMS
It is expressly acknowledged and agreed that these terms operate to the exclusion of all and any terms and conditions issued by the Buyer whether before or after the date these conditions of sale come into effect.
- ORDERS AND PERFORMANCE
- The Company may accept or refuse any order for goods in its absolute discretion and may make its acceptance of an order conditional upon a satisfactory credit assessment and the lodgment of the required deposit.
- Unless otherwise agreed orders must be in writing and either mailed, couriered faxed or e-mailed to the Company.
- The Company will use its best endeavors to fulfil accepted orders and comply with any requested or estimated date for delivery. If the Company’s ability to fulfil an accepted order is affected by reasonable circumstances or reasonable events beyond its control the Company may:
- extend the date for delivery or
- Cancel the order without liability for breach.
4. PRICE AND DEPOSITS
- A forty percent (40%) deposit on the GST inclusive price is required to confirm an order (without this deposit it will not be considered a firm order). The Buyer shall pay the remainder of the purchase money on the date of the invoice, prior to delivery of the machinery.
- Prices charged for goods will be as stated in the current written Quotation supplied by the Company
- Unless specifically indicated, prices in quotations or elsewhere are Ex Works Palmwoods, Queensland, Australia (Incoterms 2013) and do not include insurance, transport from Palmwoods, packing or any applicable taxes.
- The Buyer will be liable for all applicable taxes to the extent they are not already included in the price.
- Additional costs and charges:
The Buyer will be responsible for the following costs and charges unless otherwise agreed or specified in the quotation.
- Any variations, to the Company’s specifications, requested by the Buyer
- Special packaging requirements
- Insurance for the goods in transit
- Expenses incurred by the Company due to deferral of delivery at the Buyers request beyond the specified delivery date
- Any costs associated with the provision of services (air, water, electricity, gas, modem and communication facilities (if applicable) at the Buyers site or any other site preparation costs.
- Line integration (if applicable) and Installation costs of the equipment.
- Cancellation/Alteration of Order:
Except in the case of default by the Company, cancellation or alteration of the order or return of any product by the Buyer shall not be made without prior written consent by the Company. Cancellation of an order will result in all costs incurred being met by the Buyer. The costs will be deducted from the paid deposit or charged accordingly.
- DELIVERY AND PACKAGING
5.1 Delivery will be initiated from the Company’s Palmwoods premises where the Buyer’s order has been accepted. The Company may agree at the Buyer’s cost to arrange carriage to another address specified by the Buyer, in which case delivery will take place at that address. Carriage may be affected by the Company or by a carrier selected by the Company unless otherwise specified. The Buyer will provide all necessary labour and equipment to off load the goods at a reasonable access point at the address specified for delivery. Unless stated otherwise in the Quotation, the Buyer agrees that the goods shall be at the sole risk of the Buyer from the time the goods are loaded for dispatch from the Company’s premises and the Company shall not be subject to any action, claim or liability including any consequential loss or damage claim. The Buyer can request the Company to arrange transit insurance for the goods.
- The Company does not accept any responsibility for damage caused to equipment sent by Rail. Insurance cover can be arranged only if the goods have been crated.
For machines and equipment payment terms are in full on the date of invoice and prior to shipment of goods less deposit paid.
For spare parts, trays and other goods and services payment is required prior to dispatch.
- Legal title to the equipment will not pass from the Company to the Buyer until the Company receives payment in full.
- Lease Terms
In relation to equipment being leased by the Buyer through a financial institution the deposit of 40% or a Bank Guarantee is required which will be refunded on receipt of payment in full by the financial institution. In addition, the financial institution will be required to make payment in full prior to dispatch of the order.
- The Buyer agrees to pay to the Company any:
- Reasonable costs and expenses incurred by the Company for legal fees, mercantile agents and other agents acting on the Company’s behalf in respect of any recovery or attempted recovery of the Buyer’s debt.
- Interest on the overdue amount at the rate that would be payable by the Company to its banks for overdraft account from the date of invoice to the date of full and final payment.
- All payments to the Company will be made without set-off, deduction or counterclaim.
- Payment for imported equipment must be received in full prior to the departure from the port of origin.
- Any claim by the Buyer for incorrect orders, shortages, overcharges and the like will only be recognized by the Company if made in writing and forwarded within 7 days of the date of invoice or receipt of goods.
- Any claims by the Buyer for goods lost or damaged in transit following Delivery should be made within three days to the relevant carrier or transport authority and insurance company if applicable. In addition, the Company is to be informed in writing within three working days of delivery.
- Return of goods to the Company by the Buyer may only be made if the Company has agreed to that return in writing, and all such returns will be subject to a 20% handling charge plus all freight, insurance and packaging costs. Risk remaining the responsibility of the Buyer, subject always to clause 8.
INSURANCE, RISK AND PROPERTY
- . Unless otherwise agreed, goods are not insured by the Company.
- Notwithstanding that risk in the goods may pass to the Buyer, property in and title to the goods will not pass to the Buyer until those goods and all other amounts owed to the Company by the Buyer (regardless of any credit period) have been paid for in full and until then:
- the Buyer will hold the goods as fiduciary and agent for the Company;
- the goods must be stored and to be identifiable
- The Company may require the Buyer to return the goods to it on demand and may enter upon the premises of the Buyer to inspect or repossess the relevant goods.
8.3. Any equipment being rented or on loan from the Company is done so with the understanding that any equipment loss or damage from the time of shipping from the Company’s premises, will be responsibility of the Buyer’s or renter. Any costs incurred to repair or replace the equipment will be the responsibility of the Buyer or renter. The Company recommends that adequate insurance cover be arranged.
- STANDARDS AND WORK PLACE CONFORMITY
9.1 The Company equipment is built in an endeavour to comply with Australian Standards. If alterations and/or modifications are required to conform to the relevant O.H& S or W.H & S (or any other relevant bodies) standards then the cost of such alterations and/or modifications shall be borne by the Buyer. The Company may at their discretion either carry out these alterations and/or modifications or direct them to a responsible local agent.
10.1 The Company warrants that it shall for a period of twenty four (24) months from date of shipment, repair or replace any of the goods shown to have been defective as a result of faulty materials. The Company further warrants that if the fault is due to defective workmanship, this warranty shall apply for a period of twenty four (24) months from invoice date.
10.2 The warranty above does not apply in respect of defects specifically drawn to the Buyer’s attention or defects arising from; incorrect or negligent handling; disregard of operating and/or maintenance instructions; overloading or unsuitable operating conditions; lightning, accident; neglect, faulty erection or installation (unless carried out by the Company); unauthorised repairs or alterations; acts of God or other causes beyond the Company’s control.
10.3 The Company’s liability is limited to an amount totally no more than the unit cost of the item and at the Company’s option, to replacement or repair or payment of the cost of replacement or repair of the relevant goods. Any claim in respect of a breach of the warranty above, must be made in writing within the warranty period.
10.4 The Company’s liability to the Buyer for breach of any implied term not excluded by clause 13.1(c) will be limited (at the Company’s option) to replacement or repair or payment of the cost of replacement or repair of the relevant goods or repayment of the unit price by the Buyer.
10.5 To the fullest extent permitted by law the Company will not be liable to the Buyer for loss of profit or other economic loss; direct, indirect or consequential loss; special, general or other damages; or other expenses or costs arising out of any breach of the Contract or any common law duty (including negligence) by the Company, its agents or employees.
10.6 Operation of Equipment.
Where the equipment fails to operate in a proper manner and the fault is found by the Company to have been caused by user error rather than defective material or workmanship then the responsibilities for all costs, outgoings and expenses (including travel and accommodation) incurred by the Company for the service call and in repairing the goods shall be paid for by the buyer.
11. OTHER ITEMS
11.1 Provision of services (electricity, water, LP gas, plumbing, associated accessories, compressed air, and communications) are to be arranged by the Buyer. A type B or Tier 2 Gas Inspection is required for Drying Tunnel installations. Any fees or costs, if applicable, are to be met by the Buyer.
The Buyer is responsible to arrange for a qualified trade’s person to supply services to the unit as applicable.
11.2 Operating Manuals
The Company shall supply an operating manual for goods purchased and it is the responsibility of the Buyer and operator to read the manual before operating the equipment. In addition it is essential the Buyer ensure all operators are trained in the use of the equipment and due care has been taken to ensure the safe operation of the equipment. Warrantee claims may be invalid if procedures, contained in the manual, are not followed.
11.3 Copyright and Intellectual Property
The sale to and purchase by the Buyer of any goods does not confer on the Buyer any license or right under any copyright, patent, registered design, or trade mark which is the property of the Company and the Buyer will conform to all reasonable requirements imposed by the Company with respect to trademarks, or identification marks in respect of the goods. In addition the Buyer agrees not to make any of the equipment or documentation available to any third party without the written permission of the Company.
The Company accepts no liability whatsoever for any loss, damage or injury arising directly or indirectly, either in Australia or in another country, out of the design, manufacture, sale and use of the product whether in tort, contract or implied by stature. The provisions of the sale of goods (Vienna convention) act are specifically excluded.
- INSTALLATION AND COMMISSIONING
- Unless expressly itemized in the Quotation, uncrating, actual siting and installation of equipment and supply of any services to the point of installation are excluded.
- The services of the Company’s trained personnel are available to install and commission the equipment at the service rates published by the Company applicable at the time of installation and commissioning, plus travelling time, accommodation, air fares, and general expenses (all such costs are subject to GST).
- Progress payments may be claimed every 14 days by the Company for the value of work performed on site, less any previous payments made in respect of that work. If payment of a progress or other claim is not received from the Buyer, within 14 days of the date of submission of such claim, the Company may suspend work until payment is made and the Company shall be entitled to an extension of time to the date of such work.
- Should delays occur during site installation/commissioning through no fault of the Company, then all costs such as additional airfares, lost time on site, travelling time, accommodation etc., will be at the expense of the Buyer (all such costs are subject to GST).
- The Buyer shall provide suitable access to and possession of the site at all times necessary and convenient to the Company. The Company shall be under no liability for the correctness or suitability of the installed area.
- The Buyer shall provide sufficient product and equipment operators, to be used at the time of Installation/commissioning in order complete the work to the Company’s satisfaction.
- The Buyer will accept all liability in respect of any bodily injury or death of any person or damage to any property on the premises where installation or commissioning is taking place.
- Each party acknowledges and agrees that:
- the Contract represents the entire agreement between the parties and supersedes all previous agreements;
- it has not entered into the Contract in reliance on, or as a result of any statement or conduct of any kind (including without limitation, any representation, warranty, advice or undertaking);
- all conditions, warranties or other terms implied by statute or common law are expressly excluded to the fullest extent permitted by law; and
- the Contract may only be amended by agreement in writing.
- Nothing in these Conditions of Sale shall entitle the Buyer to any priority of supply of goods as against the Company’s other distributors, agents and customers.
- DEFINITIONS AND INTERPRETATION
In these Conditions of Sale the following terms have the following meanings unless the context requires otherwise:
‘Buyer’ means a person or company from whom the Company accepts an order for goods.
‘Company’ means Dellma Pty Ltd trading as KW Automation (ABN 16 164 494 286).
‘Contract’ means the agreement constituted by the Company’s acceptance of the Buyer’s order and includes these Conditions of Sale.
‘Written Quotation’ means a quotation no older than 30 days at the time the order is received by the Company.
‘Delivery’ means delivery of any goods to the Buyer or to a carrier arranged by the Buyer or the Company (at the request of the Buyer).
‘Tax” means any tax, levy, charge or duty imposed by any government entity or authority (including, without limitation, sales tax, GST, and customs duty) on or in relation to goods sold to the Buyer (excluding taxes on the Company’s income and capital gains).