COMMSGLOBAL PTY LTD
STANDARD TERMS AND CONDITIONS OF SALE
1 In these conditions:
(i)“CommsGlobal” means CommsGlobal Pty Ltd A.C.N. 160 093 792 which is the seller of the goods.
(ii)“Customer” means the purchaser of the goods nominated on the quotation or purchase order.
(iii)Nothing in these terms and 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 Australian Consumer Law) and which by law cannot be excluded, restricted or modified.
2 ESTABLISHING THE CONTRACT
(i)Scope of Contract: Notwithstanding anything contained in the Customer's order or in correspondence or elsewhere, these terms and conditions together with the CommsGlobal quotation (if any) and order acceptance, shall constitute the entire terms and conditions of the contract between the Customer and CommsGlobal in regard to the products or services stated on the quotation or order acceptance, unless specifically agreed to the contrary in writing signed by a director or officer of CommsGlobal and any conditions or stipulations to the contrary are hereby excluded or extinguished. The Customer acknowledges that the contract was not entered into in reliance on any representation other than those which may be expressly incorporated into the CommsGlobal quotation (if any). Provisions of the contract may not be amended or modified except in writing signed by an authorised director or officer of CommsGlobal.
(ii)Validity and Acceptance: CommsGlobal reserves the right to amend any accidental errors and/or omissions on quotations at the time of Order Acceptance and on Order Acceptances after their issue. Quotations by CommsGlobal do not constitute an offer and CommsGlobal reserves the right to withdraw or amend same at any time prior to the issue by CommsGlobal of an Order Acceptance.
a.The prices and charges stated on CommsGlobal’s quotation and Order Acceptance are subject to adjustment without notice and Products shall be invoiced at CommsGlobal’s standard prices and charges in effect at the time of despatch.
b.The prices quoted do not include GST, sales tax, customs duty and other similar imposts and therefore it is the Customer's responsibility to furnish CommsGlobal with a duly authorised statement of exemption. If no such notice of exemption is received by CommsGlobal, GST and/or sales tax (if applicable) will be added to the price shown.
c.The prices quoted do not include freight, postage and packaging charges. All prices are quoted FOB from the stocked
(iv)Regulations: The customer in placing an order with CommsGlobal is deemed to warrant his compliance with every applicable legal or regulatory requirement of any Government or other relevant authority concerning or relating to this contract, and that all necessary licences or permits required in connection with the contract have been lawfully obtained.
3 DESCRIPTIONS OF THE PRODUCTS
(i)Illustrations and Brochures: All descriptive literature and illustrations given are intended as a general guide of the Products described and none of these shall form part of the contract nor shall any provision contained therein be deemed to be a representation warranty term or condition of or relating to the contract or constitute a collateral contract.
(ii)Specifications: CommsGlobal follows a policy of continual product development and therefore reserves the right to alter design and specification of any product or component without notice and without affecting the validity of the contract. CommsGlobal shall not be liable for failure to attain performance figures stated in the contract unless these have been guaranteed in writing within a specified margin or tolerance.
(iii)Weights and Measurements: CommsGlobal drawings, specifications, descriptive matter, weights, dimensions and shipping specifications are approximate only, unless specifically guaranteed in writing signed by an authorised director or officer of CommsGlobal.
(i)Deposit: For approved credit customers on receipt of purchase orders a 30% deposit will be payable within 14 days of order. Balance of payment – 60% payable within 14 days of Despatch of equipment, and 10% within 14 days of commissioning. For all other customers including any purchases made via CommsGlobal websites, payment in full is required at time of order.
(ii)Minimum order value: Any orders placed below a value of $250 will incur a handling charge of $50. If payment is made by credit card at time of order the handling charge may be waived at the sole discretion of CommsGlobal and CommsGlobal reserves the right to determine if such fee is to be waived or not.
(iii)International: All orders are subject to acceptance by CommsGlobal of an irrevocable letter of credit in AUSTRALIAN DOLLARS established in favour of CommsGlobal Pty Ltd Pty Ltd with the Commonwealth Bank of Australia which provides for full payment on presentation of Commercial invoices.
(iv)If the customer fails to pay any amount to CommsGlobal when it is due whether in respect of one or more order(s), CommsGlobal in addition to any other rights it may have, shall be entitled to suspend further deliveries in respect of those or any other order, or where the payment is due in respect of a particular order may terminate the contract arising out of the order in relation to Products which have not been delivered and CommsGlobal shall be entitled to payment for Products already delivered and Products in the course of manufacture.
(v)Interest on overdue accounts shall be chargeable at 3% over the Commonwealth Bank of Australia's minimum lending rate.
(i)Indicated delivery dates: Unless guaranteed in writing by CommsGlobal to the contrary, delivery dates are approximate only and CommsGlobal shall be under no liability to the customer in respect of any delay or non-delivery of the Products however caused. Where CommsGlobal agrees in writing to guarantee a delivery date, CommsGlobal shall not be liable for failure to fulfil or delays in fulfilling the order where fulfilment is prevented, delayed or hindered by any cause beyond the control of CommsGlobal.
(ii)Part Deliveries: CommsGlobal reserves the right to despatch part of the order and the customer shall be invoiced in respect of such delivery in accordance with the payment terms set out herein.
(iii)Date and Place of Delivery: Delivery shall be in accordance with the delivery terms specified on the CommsGlobal order acceptance. If those terms are defined by "Incoterms" published by the International Chamber of Commerce they shall have the meaning in such definition as applicable at the date of this order. CommsGlobal shall advise the customer when the products are ready for delivery.
(iv)Storage and Delayed Delivery: If the customer fails to accept delivery within fourteen days of receiving advice from CommsGlobal that Products are ready for despatch, payment shall be due forthwith and CommsGlobal shall be entitled to store the Products at any available place and at the customers risk and expense.
(v)Property: The property in the Products will pass to the customer when CommsGlobal has received payment in full for those products and until such time the customer shall separately store such products and in the event of their sale shall remit to CommsGlobal such part of the proceeds as represents the balance of the purchase price still payable to CommsGlobal for such products. The Customer hereby grants to CommsGlobal, its employees, servants and agents a right to enter the Customer’s premises (or the premises of any associated company or agent where the goods are located) without liability for trespass or any resulting damage and retake possession of the goods.
(vi)Risk: The risk in the products will pass to the customer on delivery in accordance with paragraph 4(iii) above.
(vii)Shortage in Delivery or Damage or Loss in Transit: CommsGlobal shall in no way be responsible for any breakage or loss of goods in transit. Both the carrier concerned and CommsGlobal must be advised in writing of all shortages in quantity delivered and any breakage or loss within two days of receipt of consignment. In the event of non-delivery both carriers and CommsGlobal must be notified in writing within ten days after date of advice of dispatch. (If no other advice of dispatch is provided then the issue by CommsGlobal of an invoice to the Customer constitutes such advice.)
(viii)Insurance: Where CommsGlobal at the customers’ request insures the Products against loss or damage in transit, charges for such insurance must be made on the invoice. CommsGlobal's liability shall be limited to the amount received by CommsGlobal under such insurance or the value of the products, whichever is less, from which amount deduction may be made by CommsGlobal for expenses.
6 CANCELLATION BY CUSTOMER
Contracts may only be altered or cancelled by the customer with the written consent of CommsGlobal and CommsGlobal shall, upon giving such written consent, be entitled to invoice the customer for all and any costs incurred.
7 AFTER SALES WARRANTY AND RETURNS
(i)Warranty: CommsGlobal warrants that the Products will on delivery to the Customer conform with the description on the face of the CommsGlobal order acceptance for the Products and that there will be no defects in material of the Products.
CommsGlobal however shall not be liable for:
a.any such failure to conform with the description which is not notified to CommsGlobal in writing within fourteen days following delivery of the relevant Products;
b.any such defects in material which are not notified to CommsGlobal in writing within twelve months of delivery to the Customer of the Product;
c.components of the Products not manufactured by CommsGlobal as to which CommsGlobal shall extend to the customer the benefits of such guarantees, warranties and conditions (if any) as may be given or obtained from the relevant manufacturer; and
d.the cost of return carriage of the Products to CommsGlobal.
(ii)Except as otherwise provided in these conditions all other terms and conditions and warranties implied by statute (except for any warranties which may apply to the contract pursuant to Australian Consumer Law (the "ACL") and which may not be excluded) common law or otherwise in relation to the Products (including without limit any implied warranty that the Products are fit for any particular purpose or that the Products will comply with a sample) are hereby excluded. Except as expressly provided in sub-clause 7 (iii). CommsGlobal shall be under no liability to the Customer for any loss, damage or injury (direct or indirect) resulting from any breach of warranty or any defective material, faulty workmanship or otherwise howsoever arising out of the contract or whether or not caused by the negligence of CommsGlobal, its servants or agents.
(iii)If there is a breach by CommsGlobal of any warranty provided by it in regard to the Products either under clause 3 or sub-clause 7(i) or elsewhere in this agreement or implied by the Act or otherwise, including a breach of a condition or warranty implied by Pt 3-2 Div 1 of the ACL, CommsGlobal shall do one or more of the following (as determined by CommsGlobal in its absolute discretion) which shall be the Customer's sole remedy in respect of such breach;
a.replace the Products or supply equivalent Products; or
b.repair the Products; or
c.return the invoice price of the Products to the Customer; or
d.the payment of the cost of replacing the goods or of acquiring equivalent goods; or
e.the payment of the cost of having the goods repaired.
(iv)The seller’s liability under s 274 of the Australian Consumer Law is expressly limited to a liability to pay the Customer an amount equal to:
a.the cost of replacing the goods; or
b.the cost of obtaining equivalent goods; or
c.the cost of having the goods repaired, whichever is the lowest amount.
(v)CommsGlobal shall not be liable for any consequential loss of whatsoever nature suffered by the Customer including (but without limitation) loss of profits or direct, indirect, special or consequential losses.
(vi)Under no circumstances shall CommsGlobal be liable for any claim in tort or for any negligent or injurious act or default of any servant or agent of CommsGlobal.
(vii)CommsGlobal shall not be liable (except to the extent that such liability is legally incapable of being excluded or limited) in respect of any loss or damage arising out of any representation, statement, recommendation, or advice given by CommsGlobal, its employees or agents before or after acceptance of the order from the Customer.
(viii)The Customer shall indemnify CommsGlobal against all damages, losses, claims, actions and expenses arising out of or in connection with the Products or their use, except where and to the extent only that such damage, loss, claim, action or expense is a direct result of a breach by CommsGlobal of any warranty provided under this agreement or under the Act.
(ix)Returns: Proof of purchase is required before CommsGlobal will consider items for return. Return of goods (other than in situations where CommsGlobal is required to accept a return of goods under the Australian Consumer Law) must be approved by CommsGlobal and CommsGlobal will generate a Return Authorisation Number (RAN) for that specific return. These authorised returns must be freight prepaid and will only be accepted if they are in a saleable condition (unopened, complete, packaging in as new condition and not shop soiled) and (unless otherwise agreed with CommsGlobal) the goods are returned within 14 days of supply. CommsGlobal does not accept returns in the case of the customer changing their mind. CommsGlobal reserves the right to charge a handling fee of $20 or 20% of the price of the goods returned (whichever is greater) under this provision. CommsGlobal will not accept the return of goods specifically purchased, manufactured, machined or cut to size or to the Buyer's specification other than in situations where CommsGlobal is required to accept a return of such goods under the Australian Consumer Law.
8 GOVERNING LAW
This contract shall be construed and governed by the laws of the State of Victoria, Australia and the parties accept and submit to the jurisdiction of the Courts of that State.
9 INTELLECTUAL PROPERTY AND COPYRIGHT
(i)The customer acknowledges and agrees that any Products supplied hereunder are proprietary to CommsGlobal and/or other manufacturers and may include copyrighted works and/or trade secrets of CommsGlobal and/or other manufacturers.
(ii)The customer shall not decompile, disassemble, reverse engineer, manufacture, duplicate or modify any of the products or components thereof and shall not manufacture products or components which in substance are the same or similar to the products or components supplied hereunder.
(iii)Where the customer is supplied with CommsGlobal proprietary software hereunder, CommsGlobal hereby grants a non-exclusive, non-transferable licence to use the software only in the customer's business and only with CommsGlobal hardware products and such licence shall constitute the customers sole licence or right in regard to the software. The customer shall not copy, duplicate, or download such software without the written consent of CommsGlobal.
10 INTERNATIONAL SALE OF GOODS CONVENTION
For export orders, it is acknowledged and agreed by the customer that the U.N. Convention on contracts for the International Sale of Goods shall not apply to the contract.
11 ALTERATION TO CONDITIONS
CommsGlobal may, at any time and from time to time, alter these terms and conditions. Any variation to these standard terms and conditions will not apply to any contract for a specified term that incorporates a version of these standard terms and conditions released prior to the variation.