Terms and Conditions of Sale
1.1 In these Terms:
Contract means the contract for the sale of the Goods from the Vendor to the Purchaser formed by the Vendor’s acceptance of the Purchase Order.
Goods means the goods specified in the Purchase Order.
Installation Site means the site where the Goods are to be installed, as described in the Purchase Order.
Purchase Order means the completed form of Purchase Order for goods signed by the Purchaser and submitted to the Vendor.
Purchaser means the person described as Purchaser in the Purchase Order.
Taxes means Government charges and taxes of any kind, including without limitation stamp duty and goods and services tax imposed under A New Tax System (Goods and Services Tax) Act 2000 and related laws.
Terms means these Terms and Conditions of Sale.
Vendor means Heytesbury Technologies Pty Ltd ACN 617 522 675.
1.2 No course of prior dealings between the parties and no usage of trade are to be relevant to supplement or explain any term or expression used in these Terms.
2.1 These Terms:
(a) Constitute a complete and exclusive statement of the agreements, understandings, terms and conditions between the Purchaser and the Vendor with respect to the sale of the Goods by the Vendor to the Purchaser, subject only to any express terms and conditions to the contrary in the Purchase Order;
(b) supersede all prior arrangements, written or oral; and
(c) if two or more persons are named as the Purchaser, bind each person jointly and separately.
2.2 These Terms may only be modified in writing signed by the Vendor or on the Vendor’s behalf by a Director or Manager of the Vendor.
2.3 The Contract is to be governed by and construed in accordance with the law in effect in Western Australia and the parties accept the non-exclusive jurisdiction of the Courts of Western Australia in relation to any dispute between them.
3.1 The Vendor may accept or refuse a Purchase Order in the Vendor’s absolute discretion.
3.2 The Vendor’s acceptance, refusal or cancellation of a Purchase Order may be communicated to the Purchaser orally or in writing.
3.3 The Vendor has no obligation to supply or install the Goods unless the Vendor has accepted the relevant Purchase Order.
3.4 A Purchase Order must be signed by the Purchaser and accompanied by the deposit referred to in clause 6.1(a), and once submitted to the Vendor is irrevocable for a period of 14 days.
4 Delivery and Installation
4.1 The Vendor will use its best endeavours to fill an accepted Purchase Order, but if the Vendor is unable for any reason beyond its control to deliver or install the Goods within any period stated in the Purchase Order, then the Vendor may:
(a) extend the date for supply or installation by a period of no more than 14 days; or
(b) cancel the Contract, in either case without any liability for breach of the Contract. Events which are deemed to be beyond the control of the Vendor are fire, flood, strikes, lockouts, accidental breakdown or mechanical failure of plant, machinery, or equipment, delays in transportation, the Purchaser’s instructions or lack of instructions, default of the Purchaser, failure or delay on the part of any of the Vendor’s manufacturers or suppliers and acts of Government.
4.2 The Purchaser is responsible for:
(a) the provision of all necessary access to the Installation Site for the
Vendor’s contractors so as to enable the installation of the goods within
any period stated in the Purchase Order (or as may be extended under
(b) the provision of access to a 240 volt power supply by standard 3 pin plug within 20 metres of the Installation Site for use by the Vendors contractors for the purpose of installation of the Goods, unless otherwise specified in the Purchase Order;
(c) the provision of a power supply as specified in the Purchase Order for connection and continued operation of the Goods;
(d) obtaining any local authority and other approvals necessary for the installation and use of the Goods on the Installation Site, unless otherwise specified in the Purchase Order.
(e) Take steps to ensure that the ground beneath all planned installation
5.1 The quoted price for the supply and installation of the Goods is current for a period of 30 days from and including the date of quotation – unless noted otherwise on the quotation form issued to the Purchaser. If the Vendor advises the Purchaser in writing, after the 30-day period (or other period as noted) and before supply and installation of the Goods, of any increase in the quoted price by reason of increased cost of materials or labour, the Purchaser may terminate the Contract by written notice of the Vendor given within 7 days of receipt by the Purchaser of the Vendors notice, and a failure by the Purchaser to terminate is deemed acceptance of the increased price.
5.2 The quoted price is, unless otherwise specified in the Purchase Order, based on the Installation Site being a clear site capable of easy penetration to a depth of 1 metre. Excavation of rock, site levelling, compaction and any other works not specified and quoted for in the Purchase Order will be charged at the Vendors contractors ruling rates per hour for the relevant type of work and the Purchaser is to pay all cartage and dumping costs and fees.
5.3 The quoted price does not include Taxes except to the extent specified and the Purchaser is responsible for payment of all Taxes not expressly specified as included in the quoted price.
6 Terms of Payment
6.1 Unless otherwise specified in the Purchase Order, the Purchaser shall pay for the Goods as follows:
(a) we may require a deposit of the quoted price with the Purchase Order;
(b) the balance within a specified period as stated on the invoice from the
Vendor following completion of supply and/or installation of the Goods.
6.2 After 7-days from the due payment date, all outstanding amounts due from the Purchaser to the Vendor attract interest from that payment date at the rate charged by the Vendor’s Bank on overdraft account of less than $100,000.00, plus 4%.
6.3 Default by the Purchaser in payment to the Vendor of any amount within 14 days of the due payment date entitles the Vendor (in addition to the Vendor’s other rights and remedies, including those under clause 7) to retain and forfeit the deposit paid by the Purchaser and to rescind and terminate the Contract by notice in writing to the Purchaser.
6.4 All losses, expenses and costs including legal fees on an indemnity basis consequent upon the Purchaser’s failure to pay on the due date are recoverable from the Purchaser by the Vendor as liquidated damages.
6.5 Purchase orders cancelled by the Purchaser may attract a re-stocking fee of 15% of the value of the goods as compensation for costs incurred by the Vendor.
6.6 Goods returned by the Purchaser to the Vendor for credit that are of merchantable quality returned to the Vendor may attract a re-stocking fee of 15% of the value of the goods as compensation for costs incurred by the Vendor.
7 Title and Risk
7.1 Property and ownership (both legal and beneficial) in the Goods shall not pass to the Purchaser but shall remain with the Vendor until payment in full of the purchase price of the Goods and all other amounts owing to the Vendor by the Purchaser.
7.2 Notwithstanding clause 7.1, risk in the Goods passes to the Purchaser at the time of delivery and the Purchaser shall fully insure (and keep insured) the Goods until property and ownership (both legal and beneficial) in the Goods passes to the Purchaser:
(a) the Purchaser shall hold the Goods as a fiduciary bailee and agent for the Vendor and shall redeliver the Goods to the Vendor if the Vendor requests;
(b) the Vendor and its agents may at any time on reasonable notice (except in an emergency, where notice will not be required) enter premises owned or occupied by the Purchaser in order to inspect or recover and retake possession of the Goods or any part of the Goods.
7.3 The Vendor may retake possession of the Goods if;
(a) the Purchaser fails to pay for the Goods on the due payment date,
(b) or, prior to payment of all amounts owing by the Purchaser to the Vendor, the Purchaser commits an act of bankruptcy;
(c) a trustee in bankruptcy, receiver, receiver and manager, or an administrator is appointed in relation to the Purchaser or any of the Purchaser’s property;
(d) distress is levied or a judgment, order or security is enforced, or is enforceable against the Purchasers property;
(e) if the Purchaser is a company and proceedings are commenced, or an order made or a resolution passed to wind the Purchaser up;
(f) a controller is appointed in respect of any part of the Purchaser’s property or that of the Purchaser’s subsidiaries; or
(g) anything occurs which in the Vendor’s opinion may result in any of the
8 Warranties and Conditions
8.1 The Vendor warrants that the Goods will be free from defects for the period of 12-months from the date of supply.
8.2 If the Goods are installed by the Vendor, the Vendor warrants that the installation will be free from defects caused by faulty workmanship for the period of 12-months from the date of installation.
8.3 The Vendor will:
(a) Repair or replace any part of the Goods which is found to have a manufacturing defect; and
(b) Repair any defect caused by faulty workmanship, in either case in respect of which a written claim is made by the Purchaser during the relevant 12-month period, without charge for parts or labour.
8.4 The warranties in clauses 8.1 and 8.2 exclude, and the obligations in clause 8.3 do not extend to, any defect caused by or resulting from anything or any incident not attributable to faulty manufacture or installation of the Goods, including without limitation accidental damage, misuse or not being used in accordance with instructions, tampering by any unauthorised person, or by the goods not being maintained and serviced in accordance with the Vendor’s recommendation. The warranties and obligations also do not extend to repair or replacement of any part of the Goods at the expiration of their specified working life.
8.5 If warranty service is required, the Purchaser should contact the Vendor at its address shown on the Purchase Order.
8.6 The benefits conferred by the warranties in this clause are in addition to all other rights and remedies in respect to the Goods and the installation of the Goods which a consumer has under the Trade Practices Act and any other applicable State and Territory laws.
8.7 Subject to the other provisions of this clause 8 and to any legislation or law to the contrary;
(a) Representations and agreements not expressly contained in these Terms are not binding upon the Vendor as conditions, warranties or representations; all such conditions, warranties and representations on the part of the Vendor, whether expressed or implied, statutory or otherwise, whether collateral or antecedent or otherwise are expressly negatived and excluded;
(b) The Vendor is under no liability to the Purchaser for any loss (including but not limited to loss of profits and consequential loss) of for damage to persons or property or for death or injury caused by any act or omission (including negligent acts or omissions) of the Vendor or the Vendor’s contractors or agents;
(c) The Purchaser indemnifies the Vendor against all losses and expenses that the Vendor may suffer or incur due to the failure of the Purchaser to fully observe its obligations under the Contract.
The following items are not included in the Contract Price, and the Customer agrees that it is the Customers responsibility in relation to: a) Engineers and or contractors inspection and consultation fees if found to be necessary after commencement of work. b) The cost of overcoming uncharacteristic site conditions that were not evident or made known to the Project Manager and or Contractor prior to or at the time of signing this contract which may include “Hard Digging”, 240V Power supply to the “product” (where no allowance has been made), levelling ground or driveways and clearing obstructions, underground services location or other extra works beyond standard installation. c) Additional cost incurred due to any latent condition causing additional labour and/or materials costs.
Should any part of these Terms be held to be void or unlawful, these Terms are to be read and enforced as if the void or unlawful provisions had been deleted.