TERMS AND CONDITIONS OF SALE
AIR BRAKE CORPORATION OF AUSTRALIA PTY LTD
(ACN 003 223 747 / ABN 49 003 223 747)
In these conditions:
‘Seller’ means Air Brake Corporation of Australia Pty Ltd of 49 Leighton Place Hornsby, which is the seller of the Goods.
‘Purchaser’ means the purchaser of the goods specified on invoice.
‘Goods’ means the products and, if any, services specified on invoice.
‘Australian Consumer Law’ means the Australian Consumer Law in Schedule 2 in the Competition and Consumer Act 2010 (Cth).
‘PPSA’ means the Personal Property and Security Act 2009 (Cth).
‘Related Bodies Corporate’ has the same means as in s 50 of the Corporations Act 2001 (Cth).
These conditions (which shall only be waived in writing signed by Seller’s authorised agent or employee) shall prevail over all conditions of Purchaser’s order. Other than these terms and conditions, any conditions or other terms which are set out in any offer, purchase order or other document submitted by or on behalf of the Purchaser are expressly excluded.
The Goods and all other products sold by Seller are sold on these Conditions.
Unless previously withdrawn, Seller’s quotations are open for acceptance within the period stated therein or, when no period is so stated, within 30 days only after its date. The Seller reserves the right to refuse any order based on this quotation within 7 days after the receipt of the order.
The Seller may refuse, extend or withdraw credit to the Purchaser at any time and on such terms as it considers appropriate, in each case at its absolute discretion.
The Purchaser may not withhold or set off any payment or make deductions from any amount owing to The Seller without The Seller’s prior written consent.
The cost of any special packing and packing materials used in relation to the Goods shall be at Purchaser’s expense notwithstanding that such cost may have been omitted from any quotation.
The Purchaser waives any claim for shortage of any Goods delivered if a claim is respect thereof has not been lodged with Seller within (7) days from the date of receipt of Goods by Purchaser.
All specifications, drawings, and particulars of weights and dimensions submitted to Seller are approximate only and any deviation shall not be taken to vitiate any contract with Seller or form grounds for any claim against Seller. 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 Goods. Where Purchaser supplies specifications, drawings or other particulars, Seller’s price is made on estimates of quantities required. Should there be any quotation, then any such increase or decrease shall be adjusted on a unit rate basis according to unit prices set out herein.
Any performance figures given by Seller are estimates only, Seller shall be under no liability for damages for failure to attain such figures unless specifically guaranteed in writing and any such written guarantee shall be subject to the recognized tolerances applicable to such figures.
The deliver times made known to Purchaser are estimates only and Seller shall not be liable for late delivery or non-delivery and under no circumstances shall Seller be liable for any loss, damage or delay occasioned to Purchaser or its customers arising from late or non delivery or late installation of the Goods.
Risk in the Products will pass to the Purchaser at the time of purchase. Seller is not responsible for any loss or damage to Goods in transit. Seller shall render Purchaser such assistance as may be necessary to press claims on carriers provided Purchaser shall have notified Seller and the carriers in writing immediately loss or damage is discovered on receipt of Goods and shall lodge a claim on carriers within three days of the date of receipt of the Goods.
Warranty against Defects
The warranty against defects set out below in Clause 16, will apply only in respect of defects which arise solely from faulty materials or workmanship in the Goods.
(a) For new Goods.
a period not exceeding twelve calendar months after the Goods have been dispatched; or
if the Goods are intended to be used in automotive use, 100,000 km; or
if the Goods are not intended to be used in automotive use, 5000 hours;
whichever shall first occur.
(b) For remanufactured Goods.
a period not exceeding six calendar months after the Goods have been dispatched; or
if the Goods are intended to be used in automotive use, 50,000 km; or
if the Goods are not intended to be used in automotive use, 2,500 hours;
whichever shall first occur.
Seller’s warranty against defects for Goods manufactured by it is limited to making good any defects by repairing the same or at Seller’s option by replacement provided that (in the sole opinion of Seller, after adequate inspection and examination):
defects have arisen solely from faulty materials or workmanship;
the Goods have not received maltreatment, inattention or interference;
accessories of any kind used by Purchaser are manufactured by or approved by Seller;
the seals of any kind on the Goods remain unbroken;
installation of the Goods has taken place strictly in accordance with Seller’s or manufacturer’s instructions; and
the defective parts are promptly returned free of cost to Seller.
To the extent this Agreement constitutes a supply of goods or services to a Consumer, as defined under the Australian Consumer Law, our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
In order to claim under the warranty against defects in Clauses 13 and 14 the Goods must be returned to the Seller at the place of purchase at the Purchaser’s expense. Air Brake Corporation will examine the goods and determine whether a warranty claim is viable. If the claim is viable, Air Brake Corporation will send a replacement part within five (5) business days at their (Air Brake Corporation) expense. The Purchaser will not incur any further fees if the product is deemed faulty.
Exclusion of Liability
(a) Except as expressly provided in by these terms and conditions and to the extent permitted by law, no guarantee, warranty, condition, undertaking or term, express or implied, statutory or otherwise, as to the condition, quality, performance, merchantability or fitness for purpose of any Goods or services provided under this Agreement is given or assumed by the Seller and all such guarantees, conditions, warranties and liabilities (including liability as to negligence) express or implied relating to such goods or services are, subject to clauses 19 (ii) and (iii), hereby excluded.
(b) The Seller acknowledges that certain legislation in Australia, including the Australian Consumer Law, provides Consumers with guarantees and rights which cannot be excluded, restricted or modified or which may in certain cases only be modified or restricted to a limited extent. Nothing in these terms and conditions excludes, restricts or modifies, or is intended to exclude, restrict or modify, any guarantee, condition, warranty, right or liability implied by law (including any guarantee, condition, right or liability imposed under the Australian Consumer Law) which cannot lawfully be excluded, restricted or modified.
(c) Notwithstanding clause 19 (i), if this Agreement constitutes a supply of goods or services to a Consumer, as defined in Australian Consumer Law or any other any applicable consumer protection legislation, then to the full extent permitted by law, the liability of the Seller in respect of a breach of a guarantee, condition or warranty implied by such legislation (other than any non-excludable implied guarantees, conditions or warranties), including liability for any consequential loss which the Purchaser or any other entity or person may sustain or incur, will be limited, at the Seller’s option, to:
the repair or re-supply of the Goods or services; or
the payment of the cost of having the Goods or services repaired or re-supplied; or
in the case of Goods, the replacement of the Goods with equivalent Goods, or the payment of the costs of such replacement.
(d) The Purchaser acknowledges and agrees that in entering into this Agreement it has not relied in any way on the Seller’s representations, and that it has satisfied itself as to the suitability of a Product, and/or services for the Purchaser’s purposes.
(e) To the full extent permitted by law the Seller will not be liable to the Purchaser for any loss or damage (including loss of profits or any other indirect or consequential loss or damage) arising directly or indirectly from:
the supply or use by the Purchaser of any Product or service; or
any breach by the Seller of its obligations under this Agreement; or
the use by the Purchaser of any Product or service supplied to it by a third party and in connection with which any Product or service may be interfaced.
Unless otherwise stated all prices quoted by Seller are net, exclusive of GST. Prices quoted are those ruling at the date of issue of quotation and are based on rates of freight, insurance, customs duties, exchanges shipping expenses, sorting and stacking charges, cartage, cost of materials and other charges affecting the cost of production ruling on the date quotation is made. Any alternations thereto either before acceptance of or during the currency of the contract shall be to Purchaser’s account. The prices quoted are free on transport ex Seller’s warehouse Sydney.
The purchase price in relation to Goods shall be payable net and payment thereof shall be made on or before the thirtieth day of the month following the delivery of the Goods unless other terms of payment are expressly stated herein in writing.
Legal and beneficial title (ownership) in the Products will remain with the Seller until:
all amounts in respect of the Goods under an applicable order; and
any other amounts the Purchaser may owe the Seller, whether under these terms and conditions, under any other agreement or pursuant to any other order, have been paid in full.
Seller reserves the following rights in relation to the Goods until accounts owed by Purchaser to Seller are fully paid:
to enter Purchaser’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; and
to keep or resell any Goods repossessed pursuant to Clause 22(2) above; if the Goods are resold, or products manufactured using the Goods are sold, by Purchaser:
Purchaser must hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold or used in the manufacture of the Goods sold in a separate identifiable account as the beneficial property of Seller and shall pay such amount to Seller upon request.
Notwithstanding Clause 22(4) Seller shall be entitled to maintain an action against Purchaser for the purchase price; and
Unless Seller has been paid in full Purchaser must take such action (at Purchaser’s cost) as Seller shall reasonably require ensuring recovery by Seller of the unpaid Goods.
Personal Property Securities Act 2009 (Cth) (PPSA)
(a) The Purchaser acknowledges and agrees that:
by agreeing to these terms and conditions (in particular, by virtue of clause 7) the Purchaser grants a security interest pursuant to the PPSA to The Seller in any Products supplied by The Seller to the Purchaser and any proceeds of the sale of such Products;
The Seller may register on the Personal Property Securities Register (“PPS Register”) a security interest or purchase money security interest (“PMSI”) in the Products; and
The Seller may, on demand, obtain reimbursement from the Purchaser for all costs and expenses incurred by The Seller in relation to registering, maintaining or releasing any financing statement or financing change statement (each as defined in the PPSA) in respect of any security interest or PMSI under these terms and conditions.
(b) The Purchaser undertakes:
promptly to do all things, sign any further documents and provide any further information (which information the Purchaser warrants to be complete, accurate and up-to-date in all respects) which The Seller may reasonably require to enable it to perfect, and maintain the perfection of, its security interest or PMSI (including by registration of a financing statement or financing change statement on the PPS Register);
not to register a financing statement or financing change statement in respect of the Products without The Seller’s prior written consent; and
to give The Seller no less than 14 days’ prior written notice of any proposed change in the Purchaser’s name or any other change in the Purchaser’s details (including, but not limited to, changes in its address, facsimile number or trading name).
(c) The Purchaser waives its right under section 157 of the PPSA to receive notice of any verification of any registration pursuant to the PPSA.
(d) The Purchaser agrees that pursuant to section 115(1) of the PPSA and to the maximum extent permitted by law the Purchaser waives its rights under, and with The Seller’s agreement contracts out of, sections 95, 118, 121(4), 125, 129(2) and (3), 130, 132(3)(d), 132(4), 135,142 and 143 of the PPSA.
Seller reserves the right to make a reasonable charge for storage if Purchaser does not provide delivery instructions within fourteen days of a request by Seller for such information.
The Purchaser must choose carefully for Goods purchased as the Seller will not give refunds if the Purchaser changes their mind or makes the wrong decision. Refunds or returns will only be given to the extent there is a non- excludable right to return or refund under the Australian Consumer Law or the Sale of Goods Act NSW or other applicable legislation. Subject to the provisions herein, the Seller shall not be under any obligation to accept Goods returned by Purchaser and will do so only on terms to be agreed in writing in each individual case. The Seller will only accept such returns if:
the Goods are accompanied by Seller’s original packing slip stating reason for return and referencing Seller’s staff member who approved such return;
purchaser pays in advance a handling and restocking fee of 15% of the invoice price of the Goods returned;
the Goods returned are not special orders;
freight to a site nominated by Seller is prepaid by Purchaser; and
Goods are in the condition as sold by Seller.
In the event of default of payment by the Purchaser under this Agreement: Seller will be entitled to charge interest on all outstanding amounts at the rate of 2% plus Seller’s bank overdraft rate from time to tome as appropriate, calculated on balance outstanding from due date for payment until payment; and Purchase will indemnify Seller for all fees, costs, disbursements, charges and commissions (including any mercantile agent) incurred by Seller in enforcing any right.
All goods to be supplied by Seller shall be as described on the purchase order agreed by Seller and Purchaser, and the description on such purchase order modified as so agreed shall prevail over all other descriptions including any Purchaser’s specifications or enquiry.
No order may be cancelled except with consent in writing and on terms which will indemnify Seller’s against all losses.
The contract for sale of the Goods is made in the State of Australia from which this document is issued and the parties agree to submit all disputes arising between them to the courts of such state at any court competent to hear appeals therefrom.
Intellectual property
The Seller for and on behalf of itself, its Related Bodies Corporate and its licensees (if any) reserves ownership and intellectual property rights in all inventions, names, illustrations, drawings, plans, specifications, formulas and documents relating to the Goods. Nothing in these terms and conditions operates or is intended to deny the Seller, its Related Bodies Corporate or its licensees, or confer on the Purchaser, such rights or any other intellectual property rights in the Goods. In this clause 31 a reference to intellectual property rights includes patents, trade marks, copyright, registered designs and licences and applications in respect of any of the above.
Assignment
The terms and conditions of sale are personal to the Seller and the Purchaser and any rights and obligations under these terms and conditions only be assigned by the Purchaser with the prior written consent of the Seller.
Waiver
No neglect, delay or indulgence on the part of the Seller in enforcing these terms and conditions will prejudice the rights of the Seller or be construed as a waiver of any such rights.
Severability
If any part of these terms and conditions (including any provision, part, paragraph, phrase or word) is illegal, invalid or unenforceable it will be read down so far as necessary to give it a valid and enforceable operation or, if that is not possible, it will be severed from these terms and conditions, but in any event the remaining provisions will remain in full force and effect.