1.1 In these Conditions of Quotation and Sale (“Conditions”):
Buyer means the party or parties who have as the context requires, (a) requested a quotation in respect of Goods or Services; (b) placed an order with the Supplier in respect of Goods or Services; or (c) entered into a Contract with the Supplier for the supply and delivery of Goods or the performance of Services.
Contract has the meaning given in Condition 3.1.
Goods means, as the context requires, products:
(a) which the Supplier makes available for sale;
(b) the subject of a quotation made by the Supplier or an order placed by the Buyer; or
(c) supplied or to be supplied by the Supplier under a Contract.
GST has the meaning given in the GST Law, and includes any other goods and services tax applying to a Contract in a similar way and any additional tax, penalty tax, fine interest or other charge under a law for such a tax.
GST Law has the same meaning as in the A New Tax System (Goods & Services Tax) Act 1999 (Cwlth).
Services means, as the context requires, services:
(a) the subject of a quotation made by the Supplier or an order placed by the Buyer; or
(b) performed or to be performed by the Supplier under a Contract.
Supplier means ICM Electrics.
1.2 Headings to Conditions are inserted for ease of reference only and do not affect the interpretation of terms and conditions.
2.1 Without limiting any other Condition:
(a) Any quotation made by the Supplier is not an offer to sell and no order given pursuant to any quotation will bind the Supplier unless and until such order is accepted by the Supplier in its absolute discretion.
(b) Every quotation is subject to withdrawal or variation before the Supplier’s acceptance of the Buyer’s order.
(c) Unless quoted firm or firm for a period and ordered within such time, prices quoted may be varied by the Supplier to those ruling on the date of despatch of the Goods or performance of the Services.
(d) Freight, insurance, packaging and other charges included in any quotation are good faith estimates only and the actual amount of such charges is for the Buyer’s account except where orders are accepted in writing by the Supplier on an alternative basis.
3.1 Subject to Condition 8.5, upon the Supplier’s acceptance of the Buyer’s order, a binding agreement (“Contract”) arises between the Supplier and the Buyer in respect of the Goods and/or Services the subject of the Supplier’s acceptance, on the terms set out in these Conditions and in any other documents issued by the Supplier, which will form the entire agreement between the Supplier and the Buyer.
3.2 If any terms and conditions are contained in any order, offer, acceptance or other documents issued by the Buyer, then the Supplier and the Buyer specifically acknowledge and agree that:
(a) the documents referred to in Condition 3.1 apply to the complete exclusion of such terms and conditions; and
(b) the Supplier would not otherwise have accepted the Buyer’s order or supplied any Goods or Services to the Supplier but for the exclusive application of the terms and conditions contained in the documents referred to in Condition 3.1.
The Buyer is liable for all taxes, duties, levies and other government fees and charges in relation to the Goods and Services. Unless otherwise stated, prices quoted do not include such taxes, duties, levies and other government fees and charges.
5.1 Unless otherwise stated, prices quoted do not include GST.
5.2 If the Supplier is liable for GST on any supply made by it under this Contract, the Buyer must pay to the Supplier an amount equal to that GST in addition to any other amount payable for the supply. The additional amount must be paid to the Supplier at the same time as the original consideration for the supply must be paid or provided.
5.3 The Supplier must provide to the Buyer a tax invoice and, if applicable, an adjustment note which complies with the GST Law.
5.4 All rebates, discounts or other reductions in price will be calculated on the GST exclusive price.
5.5 Any costs required to be reimbursed or indemnified by the Buyer under these Conditions are to be determined exclusive of any GST for which the Supplier is entitled to claim an input tax credit within the meaning of the GST Law.
6.1 Following acceptance by the Supplier, an order may only be cancelled:
(a) with the written consent of the Supplier (at the Supplier’s sole discretion);
(b) on the basis that the Buyer will reimburse and indemnify the Supplier for any costs, expenses or charges (including any break fees payable to third parties) incurred by the Supplier in preparation for and execution of the order; and
(c) subject to the Buyer paying to the Supplier a cancellation fee equal to 25% of the quoted price.
Goods will be packed in the Supplier’s normal packaging for the type of Goods. Any special packaging required by the Buyer will be charged to the Buyer at current prices. The Supplier will not be liable for damages or deterioration in transit.
8.1 Subject to Condition 8.2, availability, delivery and performance dates are estimates only but the Supplier agrees to use reasonable endeavours to achieve the estimated dates. The Supplier’s failure to have Goods available, to deliver Goods, or to perform Services, by any estimated date will not:
(a) render the Supplier liable for any late delivery or performance penalty or damages, whether direct or indirect; nor
(b) constitute a repudiation or breach by the Supplier of the Contract,
and the Buyer agrees not to refuse delivery of the Goods or performance of the Services when tendered by reason of any failure to achieve the estimated date.
8.2 Condition 8.1 will not apply if the Supplier has expressly agreed in writing that both:
(a) Goods will be available or delivered, or the Services will be performed, by a stated date; and
(b) the Supplier will be liable to liquidated damages for any failure to make the Goods available, or have the Goods delivered, or to perform the Services (as the case may be) by that date,
and in such event, the Supplier’s liability for any loss or damage will be limited to the amount of the liquidated damages so agreed.
8.3 Where the Buyer does not take delivery when Goods are ready, the Supplier is entitled to store the Goods without liability, and in the open if necessary, at the Buyer’s cost and risk.
8.4 The Supplier reserves the right to deliver Goods the subject of any order in whole or by instalments and in such event, the Buyer agrees:
(a) to accept delivery of and pay for the Goods; and
(b) not to terminate or cancel any instalments still to be delivered.
8.5 Where Goods are delivered by instalments, each instalment is sold under a separate Contract.
9.1 Return of custom-made Goods will not be accepted.
9.2 Return of stock items in prime condition may be accepted if:
(a) expressly authorised by the Supplier prior to their return;
(b) the Goods are returned within 30 days after delivery.
9.3 Credit given on returned Goods will be the sale price less 25% for handling and retesting.
9.4 The Goods must be returned at the Buyer’s expense.
10.1 All invoices must be paid in full in cash on delivery except where the Buyer has a trading account with the Supplier in which case all invoices must be paid in accordance with the Trading Account Conditions.
10.2 The Supplier is entitled, without notice:
(a) to charge interest on overdue accounts at 1 per cent per calendar month from the day payment is due on each invoice;
(b) to withhold further delivery of Goods or Services until full payment of all amounts due under the Contract or on any account in the business relationship between the Buyer and the Supplier;
(c) to demand immediate cash payment for all such amounts; and
(d) to refuse, change or withdraw any credit arrangement.
(b) any direction, statement or indication by the Buyer in connection with any payment made; or
(c) that the amount of any payment may match the amount stated as owing under any particular invoice,
the Supplier may apply any payment received from the Buyer to:
(d) first, interest payable on amounts outstanding and any fees, charges and similar payments (such as those payable under Condition 18);
(e) secondly, amounts owing in respect of Services performed by the Supplier; and
(f) thirdly, amounts owing in respect of Goods supplied by the Supplier.
12.1 Notwithstanding that the Supplier may arrange delivery of the Goods to the Buyer; such delivery is arranged on behalf of the Buyer and risk in the Goods (including any instalment delivery) passes to the Buyer from the moment the Goods leave the Supplier’s premises.
12.2 Until the Buyer has paid all monies owed to the Supplier, legal and beneficial title in all Goods remains with the Supplier and does not pass to the Buyer.
12.3 Until title passes to the Buyer in accordance with Condition 11.2, the Buyer must:
(a) keep the Goods as a fiduciary for the Supplier;
(b) store and identify the Goods in a manner that clearly shows the Supplier’s ownership; and
(c) if required by the Supplier, deliver up the Goods to the Supplier.
12.4 If payment for the Goods or of any other monies owing to the Supplier is not made by the due date for payment, the Buyer irrevocably authorises the Supplier, without prejudice to any other remedies, to enter the premises of or in the control of the Buyer without notice to take possession of any Goods to which title has not passed.
12.5 Conditions 12.2 to 12.4 apply notwithstanding that:
(a) the Buyer may be in breach of any of its obligations under Condition 12.2;
(b) the Buyer may have put the Goods to any use including, without limitation:
(i) the operation of the Goods, either alone or as part of any other item of plant or equipment;
(ii) the installation or affixing of the Goods, whether alone or as part of any other item of plant or equipment;
(iii) the application of any manufacturing process to the Goods provided that the Goods remain:
(A) readily identifiable as, or as part of, the Goods; and
(B) separable from the manufacturing process or any manufactured product;
(c) part only of the Goods remain, including without limitation by reason of any other part of the Goods having been severed, used-up, sold or having ceased to be identifiable as part of the Goods; and
(d) the re-taking of possession of the Goods may decrease the utility of, or render inoperable, any item of the Buyer’s plant, equipment or manufactured product or cause damage to the Buyer’s property.
12.6 For the purposes of Conditions 12.4 and 12.5, the Buyer and the Supplier agree that in the absence of any identifying character (such as a batch number or serial number or by the Buyer’s breach of Condition 12.3(b)), if any goods under the possession or control of the Buyer can be demonstrated as being of the same specification (including without limitation, dimensions, description or chemical composition) as any Goods supplied by the Supplier:
(a) those goods will be deemed to be Goods supplied by the Supplier; and
(b) if the Buyer has acquired goods of the same specification from another supplier, the Buyer will be deemed to have held the Goods supplied by the Supplier on a “last out” basis.
12.7 Notwithstanding anything in this Condition 12, the Buyer may resell the Goods (whether in original condition or after having been subjected to a manufacturing or construction process) provided that if the Buyer sells or otherwise deals with any interest in the Goods in any goods into which the Goods have been incorporated) to a third party, the Buyer must hold such part of the proceeds of sale as is equal to the amount owing to the Supplier at the time of receipt of such proceeds (which proceeds shall be kept separately), and any property purchased with such proceeds, on trust for the Supplier.
12.8 The provisions of this Condition 12 apply despite any agreement or arrangement under which the Supplier gives credit to the Buyer.
Inspection, testing or other examination before delivery (including by the Buyer where such costs will be for the Buyer) is included only if specifically agreed to in writing and is final. Otherwise, the Buyer must examine the Goods on delivery and will be deemed to have accepted that the Goods are of the description, quality and quantity ordered unless particulars are notified to the Supplier in writing within 3 working days after delivery, after which the Supplier will not be liable for any claim for damaged Goods or Goods alleged not be of the description, quantity or quality ordered.
14.1 Information (including descriptions, drawings and other particulars) contained in leaflets, catalogues, brochures, data sheets or other descriptive materials provided by or on behalf of the Supplier do not form part of any Contract or amount to a representation of warranty.
14.2 The Buyer is responsible for providing the Supplier with full details of performance requirements, operational conditions and site limitations and where Goods or Services are supplied in accordance with those or other Buyer instructions, the Supplier will not be liable for resulting damage, deterioration, non-performance or other loss. The Buyer indemnifies the Supplier for its loss and liability to third parties arising from the above.
14.3 The Supplier will not be liable for any advice given by its employees or agents on the design or suitability for any purpose of any Goods. The Buyer relies upon such advice solely at the Buyers’ risk. Any performance figures provided by the Supplier in respect of any Goods are estimates only as to the performance the Buyer can reasonably expect from the Goods under specific conditions and are subject to any qualifications stated or otherwise expressed by the Supplier, or known or which would reasonably be expected to be known to the Buyer. The Buyer relies solely upon its own knowledge, expertise and experience. The Supplier is under no liability should the Goods fail to attain such performance figures.
15.1 Nothing in these Conditions is to be interpreted as excluding, restricting or modifying any condition, warranty, right or liability implied by legislation into the Contract if that exclusion, restriction or modification cannot lawfully be effected.
15.2 Except to the extent of any manufacture by the Supplier, Goods supplied are subject to the chemical composition, physical properties and product standards of the original manufacture, and are covered by such warranty as is specified by the original manufacturer and the Supplier does not give any warranty beyond such warranty.
15.3 Notwithstanding any other provision of these Conditions, if the Supplier breaches any condition or warranty implied by legislation the Supplier’s liability is limited to, at the Supplier’s discretion:
(a) in the case of Goods:
(i) the replacement of the Goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having Goods repaired; and
(b) in the case of Services, either:
(i) the supplying of the Services again; or
(ii) the payment of the cost of having the Services supplied again.
15.4 Subject to Condition 15.1:
(a) representations and agreements, whether express or implied, statutory or otherwise, whether collateral or antecedent or otherwise, not expressly contained in these Conditions are not binding upon the Supplier and are expressly negatived and excluded;
(b) the Supplier is under no liability to the Buyer for any loss (including but not limited to loss of profits and consequential loss) or for death or injury to any person or for damage to caused by any act or omission (including negligent acts or omissions) of the Supplier or the Supplier’s agents;
(c) the Buyer indemnifies the Supplier against:
(i) any claims made against the Supplier by any third party in respect of any such loss, damage, death or injury as is set out in paragraph (b); and
(ii) all losses and expenses which the Supplier may suffer or incur due to the failure of the Buyer fully to observe its obligations under this Contract.
For the purposes of Condition 8.2, if the manufacture or delivery of any Goods or the performance of any Services is prevented or hindered directly or indirectly by force majeure, including but not limited to strike, shortage of material, fuel or labour, breakdown or partial failure of plant or machinery, late receipt of the Buyer’s specification, instruction or other necessary information, or any other cause beyond the Supplier’s control then any time for delivery of the Goods or performance of the Services will be extended by the period of the delaying cause. Neither the Supplier nor the Buyer will be entitled to cancel the Contract nor will the Supplier be liable for any damages for the resultant delay.
17.1 The Supplier is entitled, without prejudice to its other rights and remedies, to terminate or suspend the whole or any part of the Contract and any other contract between the Supplier and the Buyer if:
(a) any debt due and payable by the Buyer to the Supplier is unpaid;
(b) the Buyer fails to provide any security required by the Supplier;
(c) the Buyer fails to take delivery of any goods other than in accordance with the Buyer’s contractual rights;
(d) the Supplier obtains an unfavourable report on the Buyer’s financial standing; or
(e) the Buyer becomes insolvent, enters into any composition or arrangement with its creditors, or a manager, receiver or provisional liquidator is appointed to the Buyer’s business.
17.2 In the event of suspension, the Supplier is entitled, as a condition of resuming supply or performance, to require prepayment or other security.
18.1 The Buyer:
(a) warrants that any Goods manufactured, constructed or supplied by the Supplier which are based on any designs, drawings or specifications provided to the Supplier by or on behalf of the Buyer do not infringe any patent, registered design, trademark, copyright or other industrial or intellectual property of a third party; and
(b) indemnifies the Buyer for any actual or alleged infringement of any patent, registered design, trademark, copyright or other industrial or intellectual property.
18.2 Ownership of all patents, registered designs, trademarks, copyright or other industrial or intellectual property:
(a) which vested in the Supplier prior to the formation of a Contract remains with the Supplier; and
(b) which was created by the Supplier in the performance of a Contract vests absolutely in the Supplier immediately upon creation,
and the supply of any Goods under the Contract does not confer on the Buyer any licence or rights (other than a licence to use the Goods) under any such patent, registered design, trademark, copyright or other industrial or intellectual property.
All costs and expenses, including legal costs (on a solicitor-client basis), debt collection costs, bank charges for dishonoured cheques, and costs incurred in the recovery or attempted recovery of any amounts owing, which are incurred by the Supplier to remedy any breach by the Buyer of, or to enforce its rights under, these Conditions are recoverable from the Buyer in addition and without prejudice to any other rights of the Buyer.
A Contract may be varied only by written agreement expressly setting out the nature of the variation. The Supplier’s acceptance of payment, or delay or failure to act will not prejudice its rights or constitute a waiver. The Buyer must not assign any Contract in whole or part without the prior written consent of the Supplier.
All matters arising in connection with a Contract are to be governed by the laws of Western Australia and the Buyer submits to the non-exclusive jurisdiction of the appropriate court in that state. The Sale of Goods (Vienna Convention) Act 1986 (Western Australia) (or its corresponding legislation in any other jurisdiction) will not apply.
If the whole or any part of a provision of these Conditions is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of these Conditions has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This Condition has no effect if the severance alters the basic nature of these