Conditions of Business
Conditions of Business - May 2007
RPS Lighting Pty Limited - A.B.N. 54 125 588 963
In these Conditions of Business unless the context otherwise requires:
The “Company” means RPS Lighting Pty Limited (ABN 54 125 588 963) and its associates, subsidiary companies and divisions.
The “Customer” means the person (including his successors, personal representatives and permitted assigns) purchasing the Goods and/or Services from the Company and the covenants on their part contained herein shall be deemed joint and several covenants.
“Goods” means any goods sold by the Company to the Customer.
“Services” means any services supplied by the Company to the Customer.
All quotations, offers and estimates are subject to alteration without notice. Quotations given are not offers. Orders received by the Company can not be cancelled without written consent. No contract shall come into existence until an order has been lodged with and accepted by the Company in writing. These conditions shall apply to any contract but in the event of any inconsistency between these conditions and the conditions included in the order forming the basis of the contract the order conditions shall prevail. All warranties and conditions whatsoever which might but for this clause be implied by law in respect of the Goods are hereby expressly negated as far as can be done legally and the Company shall not be bound by any representation, warranty conditions or statement by whomsoever made unless the same is set out in writing in any quotation offer or order confirmation. The Company shall reserve the right to correct any obvious errors or omissions of any kind in offers, quotations, order confirmations, invoices, etc., whether technical, stenographic or otherwise.
3. Price Variation
Prices are based on conditions prevailing at the time of quotation with regard to cost of local and imported Goods, wages, labour conditions, outside services, rates of freight, insurance, shipping expenses, exchange rates, customs and primage duty and tariff rate classification. All variations of these cost elements prior to delivery of the Goods shall be for the account of the Customer. Goods and Services Tax (GST) will be charged at the appropriate rate at the time of invoice.
The Company will use its best endeavours to effect delivery at the earliest possible time (if any) but failure to do so by reason of inability to obtain supplies of material or parts from the usual sources, or any strike or combination of workmen, shortage of labour or by lockout or by reason of war, riots, accident, civil commotion, fire, Act of God or any other cause whatsoever beyond the control of the Company shall not constitute a breach of contract but the Company may as its option cancel the contract or any unfulfilled part thereof or extend the time for its performance or completion until cessation of the cause preventing or delaying delivery. The place of delivery is the Company's warehouse or such other place as the Company may nominate. Unless otherwise agreed the Company shall not be liable for any loss or deterioration of or damage to the Goods from the time when the Goods are put on carrier's vehicle at the place of delivery notwithstanding that freight may be arranged or carrier engaged by the Company.
The Company warrants that Goods manufactured by it are free from fault and defects, notwithstanding that the Goods may have been sold by description or sample, the Goods shall be accepted by the Customer even though alterations in design or construction have been generally introduced by the Company or its Suppliers between the date of the contract and delivery of the Goods.
The period of the warranty given shall:
Commence from the date of delivery of the Goods.
Be as stipulated in our quotation.
The warranty shall be limited to the replacement or repair at the option of the Company of any defective Goods and of such parts of the Company's Goods as have been damaged in consequence of the defect despite proper treatment. Parts replaced will not be returned.
Claims under this warranty will be considered only if made in writing immediately such claim arises. Repair or replacement shall not extend nor renew the warranty period. The Goods shall be returned to the Company postage or freight prepaid. The Company does not accept responsibility for expenses of freight, packing, disassembly, mounting and travelling expenses for a technician and charges of a similar nature.
Without limiting the generality of these terms of delivery this warranty shall not apply to Goods:-
If the Goods sold are repaired or altered by any third party without the consent of the Company.
Where parts not manufactured or sold by the Company are used in any replacement or repair.
If the Goods are not used with proper care and for the purpose for which they are sold and in accordance with any specified instructions for use.
If changes occur in the condition or operational qualities of the Goods due to incorrect storage or mounting or to climatic or other influence.
In respect of faulty construction or defects due to the use of unsuitable materials if such method of construction or use of material has been specified by the Customer.
In respect of varnish and enamel damages.
In respect of the replacement of parts when such replacement of parts are part of normal maintenance, service or normal wear and tear.
In the case of materials, parts or Goods not manufactured by the Company the Customer shall be entitled only to the benefit of any warranty given to the Company by the Manufacturer in respect thereof.
6. Terms Of Payment
Unless otherwise stated on the invoice all prices are strictly net. The granting of credit to a Customer shall be at the absolute discretion of the Company and unless otherwise demanded by the Company the Customer shall make payment within thirty (30) days of delivery of the Goods.
Any payment made by or on behalf of a Customer which is later voided by the application of any Statutory Provision shall be deemed not to discharge the Customer’s indebtedness and, in such an event the parties are to be restored to rights which each respectively would have had if the payment had not been made.
If the Customer fails to make payment in accordance with Clause 6 a) the Company shall be entitled to:
Require the payment of cash upon delivery of any further products.
Treat such failure as a repudiation of the whole of the balance of the contract by the Customer and itself to repudiate further performance thereof and to recover from the Customer damages for the breach of contract and it shall not be necessary for the Company to either manufacture or tender to the Customer the Goods or any portion or portions thereof before bringing action for damages.
Charge default interest at the rate of one and a half per centum (1.5%) per month on a cumulative basis on all overdue amounts (including late payment charges and amounts other than the price) calculated on a day to day basis on any monies due but unpaid, such interest to be computed from the due date for payment AND the parties agree that such default interest is not a penalty but is a true measure of damages incurred by the Company, payments received from the Customer will be credited first against any default interest and all such charges shall be payable on demand.
Claim from the Customer all costs and expenses relating to any action taken by the Company to recover monies or Goods due from the Customer including any mercantile agents costs and legal costs and disbursements on a solicitor-client basis and bank fees relating to dishonered cheques.
7. Property Risk For Sale Of Goods
Notwithstanding delivery of the Goods or their installation, property in any given Goods shall remain with the Company until the Customer has paid and discharged any and all other indebtedness to the Company on any account whatsoever, including all applicable taxes, levies and duties.
The risk in the Goods shall pass to the Customer upon delivery to the Customer or its agent or to a freight company transporting the Goods to or for the Customer.
The Customer acknowledges that it is in possession of the Goods solely as a bailee for the Company until payment as defined in Clause 6 a) has been made in full the Company and until such payment:
The Customer shall be responsible for any loss or damage to the Goods whatsoever and howsoever caused following delivery; and
The Customer shall store the Goods separately from its own goods and those of any other party in a manner which clearly defines the Goods, whether as separate chattels or components, as the property of the Company.
The Customer hereby irrevocably grants to the Company, its agents and servants, an unrestricted right and license, without notice to enter premises occupied by the Customer to identify and remove any of the Goods the property of the Company in accordance with the Terms and Conditions of Sale without in any way being liable to the Customer or any person claiming through the Customer. The Company shall have the right to sell or dispose of any such Goods removed or otherwise in its sole discretion and shall not be liable for any loss occasioned thereby.
The Customer shall be at liberty to agree to sell the Goods (independently or affixed to other materials) subject to the condition that until payment has been made in accordance with Clause 6 a) the Customer shall sell as an agent and bailee for the Company and that the entire proceeds from the sale thereof shall be held in a separate account on trust for the Company.
The right to on-sell, deal or otherwise dispose of the Goods in the normal course of trade may be revoked at any time by the Company and shall automatically cease if a receiver is appointed over any of the assets of the undertaking of the Customer or if a winding up order is made against the Customer or if the Customer goes into voluntary liquidation (otherwise than for the purpose of reconstruction or amalgamation) or calls a creditors or commits any act of bankruptcy or where the Customer is in default of any of its obligations to the Company.
- The Company shall not be liable for any loss of profit or other consequential loss and damage sustained by the Customer as a result of any defect in the Goods or any other breach of contract or arising from any neglect or delay in repairing or replacing defective Goods and claims by the Customer shall be limited to any necessary replacement or repair of the Goods sold only.
The Customer shall inspect the Goods or any instalment thereof immediately on delivery and shall within seven days from such delivery give notice to the Company of any matter or thing by reason whereof it may be alleged that the Goods are incomplete or not in accordance with the contract. Failing such notice the Goods or any instalment thereof shall be deemed to be in all respects in accordance with the contract and the Customer shall be bound to accept and pay for the same.
The Company reserves the right to charge a re-stocking fee on any returned Goods.
The Company shall not be liable for any loss or damage arising from restrictions imposed on the resale or use of the Goods by any trade practices legislation.
If the manufacture or use or sale of the Goods shall be forbidden or restricted by any competent Government authority any costs or expenses incurred by the Company in connection with any contract shall be paid by the Customer.
Any contract with the Company shall be deemed to have been executed and entered into in the State of NSW and the same shall be construed, enforced and performed in accordance with the laws thereof and any proceedings shall be brought and heard in Sydney.
- These Conditions of Business constitute the whole of the agreement between RPS Lighting Pty Limited and the Customer and shall not be varied in any way unless with written agreement of RPS Lighting Pty Limited and there are no other conditions, warranties, promises, representations or obligations express or implied other than expressly stated herein or necessary implied by law. Any order placed by the Customer is deemed to be an order unconditionally accepting these Conditions of Business.