APPENDIX 3 - GENERAL CONDITIONS OF SALE

1. Interpretation

1.1 Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Trade Practices Act 1974) and which by law cannot be excluded, restricted or modified.

1.2 These conditions (which shall only be waived in writing signed by the Vendor) shall prevail over all conditions of the Purchaser’s order to the extent of any inconsistency.

2. Terms of Sale

2.1 The equipment and all other equipment sold by the Vendor are sold on these terms and conditions.

3. Prices

3.1 Unless otherwise stated all prices quoted by the Vendor are net, exclusive of Goods and Services Tax (GST).

3.2 If the Vendor makes any alterations to the price of the equipment or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Purchaser’s account.

4. Payment

4.1 The purchase price in relation to equipment is payable net and payment of the price of the equipment must be made in the manner specified by the Vendor in writing on or before acceptance of the Purchaser's bid or offer, and failing any such specification, on or before collection or delivery of the equipment (whichever is earlier).

4.2 If any cheque issued by the Purchaser or by any third party in payment for equipment is dishonoured:

(a) the Vendor may refuse to supply any further equipment (whether or not the Vendor is to make any further deliveries of the equipment), until satisfactory payment is received in full; and
(b) the Vendor is entitled to treat the dishonour of the Purchaser's cheque as a repudiation of this contract and to elect between terminating this contract or affirming this contract, and in each case, claiming and recovering compensation for loss or damage suffered from the Purchaser.

4.3 The Purchaser must pay all and any import duties, levies or imports or any GST, sales, transaction, use, excise, gross receipts, value added, property or other taxes or duties of any kind whatsoever assessed upon or relating in any way to the equipment ordered by the Purchaser irrespective of:

(a) the person, nation, state or authority requiring payment of these taxes or duties; or
(b) the person who is primarily liable to pay such taxes or duties under the law of the place where the tax or duty is payable; or
(c) any eligibility of the Purchaser for any refund or drawback for such taxes or duties.

5. Acknowledgments by Purchaser

5.1 The Purchaser acknowledges that the equipment is acquired and the Purchaser has held itself out to the Vendor as acquiring the equipment for the purpose of re-supply or for the purpose of using the equipment up or transforming the equipment, in trade or commerce, in the course of a process of production or manufacture or of repairing, treating or combining with other equipment or fixtures on land.

5.2 The Purchaser acknowledges that the manufacturer of the equipment may be a third party and the Purchaser does not hold out the Vendor to the public as the manufacturer of the equipment.

5.3 The Purchaser acknowledges that it has not made known to the Vendor expressly or impliedly any particular purpose for which it has acquired the equipment.

5.4 The Purchaser acknowledges that:

(a) the equipment is second hand, and is sold 'as is' subject to any obvious or hidden defects;
(b) the Purchaser has had the opportunity of inspecting the equipment and making its own assessment of the condition of the equipment; and
(c) if the equipment is bought by the Purchaser for re-supply, it is a condition of sale of the equipment to the Purchaser by the Vendor that the Purchaser must specifically draw any defects to the attention of any subsequent Purchaser of the equipment that may be a consumer within the meaning of those words in the Trade Practices Act 1974.

5.5 The Purchaser acknowledges that:

(a) the Vendor has not supplied any sample of the equipment to the Purchaser; and
(b) if the Purchaser sells the equipment to any person by reference to a sample, that sample is not supplied by the Vendor; and
(c) any sale by sample by the Purchaser to any person (including any ‘consumer’ within the meaning of the Trade Practices Act 1974) is not referrable to the sale or supply of the equipment by the Vendor to the Purchaser under these terms.

5.6 The Purchaser acknowledges that the Vendor does not promise or represent that facilities for the operation, service or repair of the equipment, or that parts of the equipment are or will be available. The Purchaser must ensure that each purchaser of the equipment from the Purchaser receives notice that the Vendor does not promise that:

(a) any facilities for the operation, service or repair of the equipment will be available; or
(b) any parts or software for the equipment or its use or operation will be available.

6. Descriptions and Inspection

6.1 All equipment to be supplied by the Vendor to the Purchaser is as described in the Vendor's invoice or schedule and the description in that invoice or schedule prevails over all other descriptions including any specification or enquiry of the Purchaser.

6.2 The description of the equipment is given solely for identifying the specific equipment that is the subject of this sale and does not constitute this contract as a sale by description.

6.3 All specifications, drawings, and particulars of weights and dimensions submitted to the Vendor are approximate only and any deviation from any of these things does not vitiate any contract with the Vendor or form grounds for any claim against the Vendor.

6.4 The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the equipment or of the description applied to the equipment.

6.5 Where specifications, drawings or other particulars are supplied by the Purchaser, the Vendor’s price is made on estimates of quantities required. If there are any adjustments in quantities above or below the quantities estimated by Vendor and set out in a quotation, then any such increase or decrease are to be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation.

6.6 The Purchaser relies upon its own inspection of each lot. No sale is invalidated and no compensation is claimable or payable in respect of any fault or error of description in the catalogue or otherwise.

7. Intellectual Property

7.1 The Purchaser acknowledges that it may require permission, consent or a licence from a third party having rights to software or firmware including copyright in order to use or operate the equipment, and the Purchaser agrees as follows:

(a) to indemnify the Vendor for any claims, demands or actions arising out of any infringement of the intellectual property rights of any third party;
(b) to release the Vendor from any claims, demands or actions arising out of any infringement of the intellectual property rights of any third party; and
(c) to take such steps as necessary or prudent for the lawful use of the equipment.

8. Delivery or Collection

8.1 If the equipment is installed at or upon the premises or property of a third party, the removal or dismantling of such equipment shall be arranged by the Vendor at the cost of the Purchaser.

8.2 The delivery and collection times made known to the Purchaser are estimates only and the Vendor is not be liable for late delivery or non-delivery. Delivery or collection (as the case may be) and all freight, insurance, decommissioning and dismantling expenses shall be at the Purchaser's cost.

8.3 The Vendor is not liable for any loss, damage or delay occasioned to the Purchaser or its customers arising from late or non-delivery or late installation of the equipment.

8.4 The Vendor may at its option deliver the equipment to the Purchaser or arrange for its collection in any number of instalments unless there is an endorsement in these conditions to the effect that the Purchaser will not take delivery by instalments.

8.5 If any of the equipment is delivered or collected by instalments, and any one of those instalments is defective for any reason:

(a) it is not a repudiation of the contract of sale formed by these conditions; and
(b) the defective instalment is a severable breach that gives rise only to a claim for compensation.

8.6 The cost of any special packing and packing materials used in relation to the equipment are at the Purchaser’s expense notwithstanding that such cost may have been omitted from any quotation.

8.7 The Purchaser waives any claim for shortage of any equipment delivered if a claim in respect for short delivery has not been lodged with the Vendor within seven (7) days from the date of receipt of equipment by the Purchaser.

8.8 The Vendor reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Purchaser within fourteen (14) days of a request by the Vendor for such instructions. The parties agree that the Vendor may charge for storage from the first day after the Vendor requests the Purchaser to provide delivery instructions.

9. Loss or damage in transit

9.1 The Vendor is not responsible to the Purchaser or any person claiming through the Purchaser for any loss or damage to equipment during decommissioning or dismantling or in transit caused by any event of any kind by any person (whether or not the Vendor is legally responsible for the person who caused or contributed to that loss or damage).

9.2 The Vendor must provide the Purchaser with such assistance as may be necessary to press claims on contractors or carriers so long as the Purchaser:

(a) has notified the Vendor and the contractors or carriers in writing immediately after loss or damage is discovered on receipt of equipment; and
(b) lodges a claim for compensation on the contractor or carrier within three (3) days of the date of receipt of the equipment.

10. Limitation of liability

10.1 The Purchaser acknowledges that:

(a) prior to execution of these conditions the Purchaser conducted a thorough examination of the equipment; and
(b) no warranty, condition, description or representation in relation to the equipment is given by the Vendor, expressly or impliedly by these conditions or outside these conditions; and
(c) all warranties, terms and conditions in relation to the state, quality or fitness of the equipment and of every other kind whether expressed or implied by use, statute or otherwise is excluded.

10.2 The Vendor is not liable to the Purchaser in contract or in tort arising out of, or in connection with, or relating to:

(a) the performance of the equipment or any breach of these conditions; or
(b) any fact, matter or thing relating to the equipment; or
(c) any error (whether negligent or in breach of contract or not) in information supplied to the Purchaser or a user before or after the date of the Purchaser's or user's use of the equipment.

10.3 These terms and conditions supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the equipment or any part of the equipment including, but without limiting the generality of the foregoing, those relating to the performance of the equipment or any part of the equipment or the results that ought to be expected from using the equipment.

10.4 The total liability of the Vendor for loss or damage of every kind:

(a) whether arising pursuant to these terms and conditions; or
(b) out of or in relation to the equipment, their sale, delivery or the way they behave, in tort or contract or in any other cause of action; or in any other way whatsoever,
is limited to the amount paid by the Purchaser to the Vendor under these terms at the date when such liability arises.

10.5 Any performance figures given by the Vendor are estimates only. The Vendor is under no liability for damages for failure of the equipment to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.

11. Guarantee

11.1 The Vendor is not liable for and the Purchaser releases the Vendor from any claims in respect of faulty or defective design or manufacture of any equipment supplied.

11.2 Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the equipment for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Vendor is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the equipment or arising out of the Vendor’s negligence or in any way whatsoever.

12. Rights in relation to equipment

12.1 In connection with the equipment while they remain the property of the Vendor, the Purchaser agrees with the Vendor that:

(a) the Purchaser has no right or claim to any interest in the equipment to secure any liquidated or unliquidated debt or obligation the Vendor owes to the Purchaser;
(b) the Purchaser cannot claim any lien over the equipment;
(c) the Purchaser will not create any absolute or defeasible interest in the equipment in relation to any third party except as may be authorised by the Vendor;
(d) where the Purchaser is in actual or constructive possession of the equipment:

(i) the Purchaser will not deliver them or any document of title to the equipment to any person except as directed by the Vendor; and
(ii) it is in possession of the equipment as a bailee of those equipment and owes the Vendor the duties and liabilities of a bailee.

12.2 The Vendor and the Purchaser agree that:

(a) the property of the Vendor in the equipment remains with the Vendor until the Vendor has been paid in full for the equipment under all individual contracts for the supply of the equipment between the Vendor and the Purchaser;
(b) the Purchaser is a bailee of the equipment until such time as property in them passes to the Purchaser and that this bailment continues in relation to each of the equipment until the price of the equipment has been paid in full;
(c) pending payment in full for the equipment, the Purchaser:
(i) must not supply any of the equipment to any person outside of its ordinary or usual course of business;
(ii) must not allow any person to have or acquire any security interest in the equipment;
(iii) must insure the equipment for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Purchaser carries on business;
(iv) must not remove, deface or obliterate any identifying plate, mark or number on any of the equipment.

12.3 Despite clause 12.2, if the Purchaser supplies any of the equipment to any person before all moneys payable by the Purchaser have been paid to the Vendor (and have not been claimed or clawed-back by any person standing in the place of or representing the Purchaser), the Purchaser agrees that:

(a) it holds the proceeds of re-supply of the equipment on trust for and as agent for the Vendor immediately when they are receivable or are received;
(b) it must either pay the amount of the proceeds of re-supply to the Vendor immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for the Vendor;
(c) any accessory or item which accedes to any of the equipment by an act of the Purchaser or of any person at the direction or request of the Purchaser becomes and remains the property of the Vendor until the Vendor is paid in accordance with clause 12.2(a) when the property in the equipment (including the accessory) passes to the Purchaser;
(d) if the Purchaser fails to pay for the equipment within the period of credit (if any) extended by the Vendor to the Purchaser, the Vendor may recover possession of the equipment at any site owned, possessed or controlled by the Purchaser and the Purchaser agrees that the Vendor has an irrevocable licence to do so.

12.4 Any property of the Purchaser under the Vendor’s possession, custody or control is completely at the Purchaser’s risk as regards loss or damage caused to the property or by it.

13. Returned equipment

13.1 The Vendor is not be under any duty to accept equipment returned by the Purchaser and will do so only on terms to be agreed in writing in each individual case.

13.2 If the Vendor agrees to accept returned equipment from the Purchaser under clause 13.1, the Purchaser must return the equipment to the Vendor at the premises notified by the Vendor for that purpose or such other place as agreed between the parties.

14. Cancellation
No order may be cancelled except with consent in writing and on terms which will indemnify the Vendor against all losses.

15. Governing Law

15.1 These terms will be governed by and construed according to the laws of Victoria, Australia and the parties unconditionally and irrevocably agree to submit to the exclusive jurisdiction of the courts and tribunals of that State.