1. Interpretation
- 1.1 Unless otherwise inconsistent with the context the word "person" shall include corporation;
- 1.2 "goods" shall include services.
- 1.3 Words importing the singular number shall be deemed to include the plural and vice versa. Words importing the male
gender shall be deemed to include the female and neuter gender and vice versa.
- 1.4 "TES" shall mean TES AUSTRALIA PTY LTD its successors and assigns.
2. Offer and Acceptance
- 2.1 Any quotation made by TES is not an offer to sell or to provide goods. TES shall not be bound by any
order given in pursuance of any quotation until it is accepted in writing by TES or by the commencement of
supply or the provision of goods. Unless otherwise agreed in writing, all orders are subject to acceptance by TES
within 30 days of receipt by TES of the order. These terms and conditions shall be deemed to be
incorporated into any agreement between TES and the purchaser. Any terms and conditions contained in any
order, offer, acceptance or other document of the purchaser and all representations, statements, terms and conditions
and warranties (whether implied by statute or otherwise) not embodied herein are expressly excluded to the fullest
extent permitted by law.
- 2.2 Insofar as goods or services supplied by TES are not of a kind ordinarily acquired for personal domestic or
household consumption, and unless the purchaser establishes that reliance on this provision would not be fair and
reasonable, the liability for breach of a condition or warranty; implied into this contract by the Trade Practices Act
1974 (other than a condition implied by Section 69) is limited:
- a. in the case of goods to any one of the following as determined by TES;
- i. the replacement of the goods or the supply of equivalent goods; or
- ii. the repair of the goods; or
- iii. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- iv. the payment of the costs of having the goods repaired;
- b. in the case of services to any one of the following as determined by TES;
- i. the supplying of the services again, or
- ii. the payment of the cost of having the services supplied again.
3. Delivery
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3.1 Any date quoted for delivery is an estimate only and unless a guarantee shall have been given by TES in
writing providing for liquidated damages for failure to deliver by the quoted date TES shall not be liable to the
purchaser for any loss or damage howsoever arising even if arising out of the negligence of TES for failure to
deliver on or before the quoted date. The purchaser shall accept and pay for goods if and when tendered
notwithstanding any failure by TES to deliver by the quoted date. Written advice to the purchaser that goods
are ready for delivery whether in whole or in part shall constitute tendering and the terms of payment shall apply.
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3.2 TES shall not be liable to any purchaser or any other party for any direct or indirect or consequential injury loss
or damage whatsoever by reason of any delay in delivery whether the same is due to the negligence of TES or
any other party, strike or any other industrial action be it of TES or other party, or any other cause whatsoever.
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3.3 TES reserves the right to deliver by instalments if delivery is made by instalments the purchaser shall not be entitled;
- i. to terminate or cancel the contract; or
- ii. to any claim loss or damage howsoever arising for failure by TES to deliver any instalments on or
before the quoted date.
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3.4 It is agreed that TES shall not be responsible for delay in manufacture or delivery caused by, or in manufacture
or delivery caused by, or in any way incidental to act of God, war, fire, breakages of machinery or strikes or arising
out of any other unexpected or exceptional cause, or any cause beyond TES’s reasonable control.
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3.5 Any quotation containing a provision to supply goods "ex stock" is subject to fulfilment of prior orders at the date of
receipt of the purchaser's order.
4. Payment
- 4.1 Unless otherwise agreed in writing payment terms are net cash 14 days from the date of the invoice.
- 4.2 This term as to the payment shall be of the essence of the contract.
5. Title
- 5.1 Notwithstanding the delivery of the goods or part thereof the goods remain the sole and absolute property of TES
as full legal and equitable owner until such time as the purchaser shall have paid TES the full purchase
price together with the full price of any other goods the subject of any other contract with TES.
- 5.2 The purchaser acknowledges that he receives possession of and holds goods delivered by TES solely as bailee
for TES until such time as the full price thereof is paid to TES together with the full price of any other
goods then the subject of any other contract with TES.
- 5.3 Until such time as the purchaser becomes the owner of the goods, he will;
- a. store them on the premises separately;
- b. ensure that the goods are kept in good and serviceable condition;
- c. secure the goods from risk, damage and theft; and
- d. keep the goods fully insured against such risks that are usual or common to insure against in a business of a
similar nature to that of the purchaser.
- 5.4 Until the goods are paid for in full, TES authorises the purchaser to sell the goods as its agent.
However, the purchaser shall not represent to any third parties that it is acting in any way for TES. TES
will not be bound by any contracts with third parties to which the purchaser is a party.
- i. Records shall be kept by the purchaser of any goods owned by TES.
- ii. The proceeds of any sale of the goods shall be paid into a separate account and held in trust for TES.
The purchaser shall account to TES from this fund for the full price of the goods.
- iii. The purchaser is entitled to a period of credit, but if prior to the expiration of the period of credit the goods
are sold and the proceeds of sale received the purchaser shall account to TES for the price of the
goods.
- iv. Should the purchaser die, stop payment or call a meeting of its creditors or become insolvent or subject to
the bankruptcy laws or being a company calls a meeting for the purpose of or to go into liquidation or has a
winding-up petition presented against it or has a receiver or administrator appointed, TES may at its
option notwithstanding its waiver of such default or failure and without prejudice to its other rights under
this contract suspend or cancel this contract or require payment in cash before or on delivery or tender of
goods or documents notwithstanding terms of payment previously specified or may repossess and take over
the goods and dispose of the same in its own interest without prejudice to any claim it may have for
damages for any loss resulting from such resale.
- 5.5 If the purchaser does not pay for any goods on the due date then TES is hereby irrevocably authorised by the
purchaser to enter the purchaser's premises (or any premises under the control of the purchaser or as agent of the
purchaser in which the goods are store at such premises) and use reasonable force to take possession of the goods
without liability for the tort of trespass, negligence or payment of any compensation to the purchaser whatsoever.
- 5.6 On retaking possession of the goods TES may elect to refund to the purchaser any part payment that may have
been made and to credit the purchaser's account with the value of the goods less any charge for recovery of the goods,
or to resell the goods.
6. Risk
Unless otherwise agreed in writing, risk in the goods shall pass to the purchaser at the time when the goods have been placed on
the vehicle which is to effect delivery from TES’s store or warehouse. The goods shall remain at the purchaser's risk at all
times unless and until TES retakes possession of the goods pursuant to these terms and conditions.
7. Claims
- 7.1 Subject to clause 2.2 herein, TES shall not be liable for any loss or damage whatsoever and howsoever arising
whether direct indirect or consequential or in respect of any claim whenever and however made for any loss or
damage deterioration deficiency or other fault or harm in the goods manufactured, work executed or services provided
by or on behalf of or in any arrangement with TES or occasioned to the purchaser or any third or other party or
to his or their property or interest and whether or not due to the negligence of TES its servants or agents.
- 7.2 As soon as any of the facts or matters which form any part of any claim or complaint whatsoever become known to the
purchaser, the purchaser shall within fourteen days notify TES in writing of the same.
- 7.3 TES shall not be liable in any circumstances for any;
- 7.4 The exemptions, limitations, terms and conditions in these terms and conditions shall apply whether or not the loss or
damage is caused by negligence or actions constituting fundamental breach of contract.
8. Force Majeure
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of TES, TES is unable to
perform in whole or in part any obligation under this agreement TES shall be relieved of that obligation under this
agreement to the extent and for the period that it is so unable to perform and shall not be liable to the purchaser in respect of such
inability.
9. Default
Upon the occurrence of default by the purchaser in compliance with the terms herein;
- 9.1 TES may at its discretion withhold further supplies of goods or cancel this agreement, or vary the terms of this
agreement without prejudice to its rights hereunder PROVIDED HOWEVER that TES may at any time and
from time to time upon such terms as it may determine waive any of its rights under this Clause, but without prejudice
to its rights thereafter of any of the events hereinbefore referred to or upon the continuation after any such waiver of
any state of affairs the subject of such waiver.
- 9.2 The purchaser shall pay to TES interest at the rate of 1.5% per month on daily balances in respect of any
amounts as may from time to time be overdue until paid and such money together with all interest shall be recoverable
forthwith from the purchaser.
- 9.3 Without prejudice to any other right or remedy the purchaser shall indemnify TES against any costs' fees
charges and disbursements charged by any solicitor engaged for the purpose of the collection or recovery of moneys
due and payable by the purchaser to TES on an indemnity basis and any fees, charges, disbursements or
commissions charged by any mercantile agency or debt collecting firm.
- 9.4 The purchaser shall pay to TES an administration fee of $50.00 on the occurrence of every event of default.
10. Charge
The Purchaser hereby charges with payment of any indebtedness to TES all beneficial interest (freehold and leasehold) in
land and personal property held now or in the future by the Purchaser. The Purchaser agrees that if demand is made by TES,
the Purchaser receiving such a demand will immediately execute a mortgage or other instrument of security, or consent to
a caveat, as required, and against the event that the Purchaser fails to do so within a reasonable time of being so requested, the
Purchaser hereby irrevocably and by way of security, appoints any credit manager or solicitor engaged by TES to be its
true and lawful attorney to execute and register such instruments.
11. GST
If a goods and services or similar value added tax (“GST”) applies to this agreement for any reason the purchaser must pay the
GST or reimburse TES for any GST paid or payable by TES.
