Terms & Conditions

1. Definitions and Interpretation

1.1 “Buyer” means the person named on the Quote Schedule.

1.2 “Buyer’s Premises” means the premises stated on the Quote Schedule.

1.3 “Commissioning” means the installation or commissioning of the Goods at the Buyer’s Premises or as otherwise agreed in writing.

1.4 “Conditions” means the particulars in the Quote Schedule and these Conditions of Sale.

1.5 “Contract” means the agreement binding the Buyer and Seller in respect of the Goods created when the Buyer signs the Quote Schedule and includes:

(a) the Quote Schedule; and
(b) the Conditions; and
(c) any later variation or addition to them agreed by the parties in writing.

1.6 “Delivery Date” means the date estimated for delivery of the Goods to the Buyer’s Premises specified on the Quote Schedule.

1.7 “Goods” means the goods referred to on the front page of this document.

1.8 “Quote Schedule” means the schedule at the front of this document.

1.9 “Seller” means J.L. Lennard Pty Ltd and/or other related body corporate named on the front page of the Quote Schedule.

1.10 “Services” means the Commissioning and/or the Training as agreed in the Contract.

1.11 “Suppliers” means suppliers and/or manufacturers of the Goods and/or any part or parts of the Goods.

1.12 “Training” means the training of the operation of the Goods provided by the Seller as agreed in the Contract.

1.13

(a) Any notice or agreement given pursuant to the Contract must be in writing (and in the case of the Seller, signed by a duly authorised officer of the Seller) to be effective.

(b) All notices to be served upon the Buyer are duly served if left at or sent by ordinary prepaid post to the last known address of the Buyer and the Buyer is deemed to have received any notice two (2) days after posting.

(c) The Buyer must not assign any right or obligation under the Contract without the
Seller’s prior consent.

(d) No waiver by the Seller of any default by the Buyer in the performance of any
obligation or condition of the Contract constitutes a waiver of that or any other
obligation or condition.

(e) The singular includes the plural and vice versa, words importing any gender
include every other gender and where there is more than one Buyer the Buyers
are bound to the Seller jointly and severally.

2. Contract

2.1 The Contract:

(a) constitutes the entire contract between the Buyer and the Seller;

(b) supersedes all prior written or verbal communications;

(c) is not varied, qualified or restricted by previous dealings between the Buyer and the
Seller or by anything contained in the Buyer’s purchase order or other document
(unless agreed in writing by the Seller).

3. Offers and Quotations

3.1 The Buyer must provide to the Seller all information necessary to enable performance of the Contract and must pay the Seller on demand any costs incurred by the Seller arising from any error, misrepresentation, alteration or omission in that information.

3.2 The Buyer warrants that it has made due enquiries and satisfied itself that the Goods ordered by the Buyer are sufficient for the Buyer’s purposes.

3.3 All quotations submitted to the Buyer may be varied by the Seller at any time prior to the Contract.

3.4 Any weight, dimensions, capacities, prices, performance ratings and other data included in catalogues, prospectuses, circulars, advertisements, illustrations or price lists do not form part of the contract.

3.5 The Buyer acknowledges that the Seller’s Suppliers may revise and modify designs and/or specifications for the Goods at any time. The Buyer will accept the Goods as revised or modified by the Suppliers and will not make an objection or claim nor will the Buyer cancel or vary the Contract because the Goods have been revised or modified.

4. Cancellation/Variation of Orders

4.1 The Buyer may cancel or vary the Contract only if agreed by the Seller. Preliminary conditions to any agreement by the Seller to a request by the Buyer for cancellation or variation will include:

(a) that the Buyer reimburses the Seller for any costs or loss (including loss of profit)
incurred by the Seller; and

(b) that the Goods have not been sent by the Suppliers.

5. Prices

5.1 The Buyer acknowledges that prices quoted for the Goods are based on:

(a) costs quoted to the Seller by the Suppliers at the quotation date specified on the
Quote Schedule; and

(b) the Vendor’s estimate of tariffs and duties payable on the Goods; and

(c) where the Goods are imported, the rate of exchange at the quotation date.

5.2 The Buyer acknowledges that the Price will vary where:

(a) the costs payable by the Seller to Suppliers is varied; and

(b) any government department assesses tariffs, taxes or duties payable on the Goods
differently from the sum estimated by the Seller;

(c) the rate of exchange at the date of invoicing varies from the rate of exchange at the
quotation date.

5.3 The Buyer must pay GST and any other impost or charge on the Goods and/or the Services in addition to the Price incurred by the Seller.

5.4 The Price does not include the provision of electricity, water and drainage or other facility or service for the operation of the Goods. The Buyer must arrange these at the Buyer’s cost.

6. Terms of Payment

6.1 The Buyer must pay to the Seller the Price and all other amounts due under the Contract on delivery of the Goods unless the Seller otherwise agrees in writing.

6.2 Where the Buyer does not make a payment by the time specified in the Contract the Buyer must pay to the Seller, in addition to amounts payable pursuant to clause 6.1, interest calculated on daily balances from the day upon which payment should have been made up to and including the date of full and final payment at the rate 1% above the overdraft rate quoted by the Seller’s bank at the date of calculation. If the Contract would otherwise be a credit contract as defined in the Consumer Credit Code the provision of credit by the Seller under the Contract is limited to a total period not exceeding 62 days. Nothing in this clause imposes an obligation on the Seller to extend credit to the Buyer for any period of time or at all.

6.3 Payment by the Buyer in accordance with the Contract and without set-off or counter claim other than as specifically stated in the Contract, is an essential term of the Contract.

7. Delivery and Risk

7.1 The Seller will make all reasonable efforts to deliver the Goods to the Buyer’s Premises on the Delivery Date but the Vendor is not liable to the Buyer or any party claiming through the Buyer if delivery is not made on the Delivery Date or any alternate date.

7.2 The Buyer must not cancel the order for the Goods or cancel or vary the Contract if the Goods are not delivered on the Delivery Date or any alternate date.

7.3 The Seller can suspend or delay deliveries of the Goods where the Seller is prevented or hindered from delivery of the Goods by causes beyond the reasonable control of the Seller.

7.4 Where the Goods are delivered by partial shipments, each partial shipment is deemed to be a separate contract on the terms of the Contract, except that where the Seller does not deliver any of the Goods on the Delivery Date or any alternate date the Buyer cannot:-

(a) rescind, terminate or repudiate any other contract with the Seller relating to the
Goods; or

(b) refuse or delay payment of the Price in relation to any of the Goods the delivery of
which has been completed.

7.5 The Buyer must inspect the Goods upon delivery and give notice to the Seller within seven (7) days after delivery of the Goods of any defect or other claim relating to the Goods. The Seller must be given a reasonable opportunity to inspect the Goods where such notice is given. Failure to give such notice within the seven (7) day period will constitute an irrevocable acceptance of the Goods by the Buyer.

7.6 The Buyer must not refuse delivery of the Goods for minor defects or defects covered by the Seller’s warranties set out in clause 9.

7.7 Unless the Seller agrees otherwise, the cost of delivery of the Goods to the Buyer’s Premises will be payable by the Buyer.

7.8 If agreed in writing by the Seller, the Seller may act as agent for the Buyer for delivery of the Goods to an agreed location on condition that all carriage and insurance costs incurred by the Seller are paid by the Buyer.

7.9 The Seller may at its discretion either by itself or by contracting with a carrier cause delivery of the Goods to be made to the Buyer’s Premises or as otherwise agreed.

7.10 The risk in the Goods passes to the Buyer upon delivery of the Goods to either the carrier or to the Buyer’s Premises or other agreed place of delivery.

7.11 The Seller is not liable for any damage caused to the Goods in transit or any consequential loss.

7.12 The Buyer must, at the Buyer’s cost, provide all labour, equipment and access at the place of delivery and must offload the Goods without delay.

8. Title

8.1. Despite risk in the Goods passing to the Buyer as a provided in clause 7.10 title and property in the Goods passes to the Buyer when full payment for the Goods (including any additional amounts payable by the Buyer to the Seller as provided in the Contract) is received by the Seller.

8.2 Until title to the Goods passes, the Buyer is a bailee of the Goods and unless otherwise agreed by the Seller the Buyer must separately store the Goods at the Buyer’s Premises or other location agreed in writing by the Seller and must be clearly marked as the property of the Seller. If payment is not made according to the contract the Seller may by its employees or agents enter any premises where the Seller believes the Goods may be situated and retake possession and dispose of or otherwise deal with the Goods as determined by the Seller at its sole discretion and the Buyer must not claim against the Seller in respect of such entry, disposal or dealing.

8.3 The Buyer grants the Seller, its employees and agents an irrevocable license to enter premises occupied by the Buyer or any related body corporate or agent of the Buyer for the purpose of exercising the Seller’s rights specified in clause 8.2. The Seller may use reasonable force to take possession of the Goods without liability for trespass, negligence or payment of compensation to the Buyer or any related body corporate or agent of the Buyer.

8.4 Until the Buyer pays the full price for the Goods to the Seller the Buyer may only sell the Goods in the ordinary course of the business as agent for the Seller. The Buyer must hold the proceeds of any such sale for and to the account of the Seller separate from other money. The proceeds must be paid to the Seller promptly.

9. Statutory Rights

9.1 The warranties given by the Seller to the Buyer are limited to those contained in the Contract.

Where any legislation applies to imply, prohibit or modify a term in the Contract, the Contract is varied to include, exclude or modify the term in compliance with the legislation.

9.2 If the Goods are not of a kind ordinarily acquired for personal, domestic or household use, the Seller’s liability for breach will, if permitted by legislation, be limited, at the option of the Seller, to any one or more of the following:

(a) if the breach relates to the Goods:

(i) replacement of the Goods or the supply of equivalent goods;

(ii) repair of the Goods;

(iii) payment of the costs of replacing the Goods or of acquiring equivalent Goods; or

(iv) payment of the cost of having the Goods repaired; and

(b) if the breach relates to the Services:

(i) supplying the Services again; or

(ii) payment of the cost of having the Services supplied again.

9.3 In respect of repairs and replacements, liability for the provision of which has been accepted by the Seller, the Seller must pay for spare parts but will not pay freight charges or any amount referred to in clause 5.3. The removal of the defective part and the installation of any repaired or replacement part must be carried out by the Buyer at its own expense. Where any defective part has been replaced, that part becomes the property of the Seller.

9.4 The obligations accepted by the Seller under clause 9.2 will be fulfilled by the Seller, unless the Seller first agrees otherwise. The Seller is not liable for the consequences resulting from any repairs to the Goods carried out by the Buyer or any third party unless the Seller first agrees otherwise.

9.5 The provisions of clauses 9.1 to 9.4 are subject to clause 10.

10. Warranties, Indemnities and Exclusions

10.1 Apart from the warranties implied by legislation which cannot by law be excluded, the Seller gives no further warranties or representations relating to the Goods as to their condition or quality or suitability or fitness for ordinary or special use or purpose. Any warranties which would otherwise be implied by law are excluded.

10.2 The warranties contained in the Contract do not cover materials expended or utilised during or in connection with the operation of the Goods or the provision of the Services, whether due to any fault in the Goods or otherwise.

10.3 The Buyer acknowledges that the Seller does not make any representations or warranties regarding the Goods or any other matter which are or might be relevant to the Buyer buying or selling the Goods other than the representations or warranties expressly stated in the Contract.

10.4 Unless expressly provided otherwise in these Conditions the Seller is not liable to the Buyer in respect of loss or damage of any kind (including economic or consequential loss or damage) which arises directly or indirectly in respect of the sale, supply or installation of the Goods or provision of the Services.

10.5 The Seller will not remedy any defects in the Goods while the Buyer is in default of the Contract to any extent.

10.6 The Buyer indemnifies the Seller against any liability, loss or expense arising directly or indirectly from the use or operation of the Goods or in connection with the provision of the Services.

11. Intellectual Property

11.1 The Seller is not liable for infringement or unauthorised use of any intellectual property right arising in connection with the Contract or otherwise in relation to the Goods. If any dispute or claim is made in respect of any infringement or unauthorised use of intellectual property the Seller may terminate the Contract by notice to the Buyer and without any liability by the Seller to the Buyer or any other person.

12. Termination

12.1 Termination of the Contract does not prejudice the rights of the parties accrued under the Contract to the time of termination.

13. Default

13.1 If the Buyer defaults under the Contract or commits any act of bankruptcy or, being a company, enters into liquidation or provisional liquidation whether compulsory or voluntarily other than for the purpose of amalgamation or reconstruction or compounds with its creditors generally or has a receiver or receiver and manager or administrator appointed over all or part of its assets, suffers any similar action in consequence of debt or becomes unable to pay its debts as they fall due, or passes a resolution for winding-up other than for the purpose of reconstruction or a petition is presented for its winding-up, the Seller may without prejudice to its own rights either suspend further deliveries of the Goods and/or provision of the Services, require payment in advance for all the Goods and/or provision of the Services or terminate the Contract or any other contract by notice to the Buyer.

14. Commissioning of Goods

14.1 If specified in the Quote Schedule or otherwise agreed in writing by the Seller as part of the Contract, the Seller will carry out the Commissioning of the Goods.

14.2 The Buyer will make available all assistance, information, personnel and items required by the Seller, in its opinion, to facilitate the carrying out of the Commissioning at the times and places agreed by the Seller. Failure by the Buyer to comply with this clause 15.2 will, at the option of the Seller, effect an immediate and complete release of the Seller’s obligations to carry out the Commissioning or any part of it at the agreed times and places, or at all.

14.3 If an amount is specified in the Quote Schedule, or has otherwise been agreed as part of the Contract, as to a Commissioning Cost, the Buyer will pay that amount in addition to the Price. The provisions of clauses 6.1 to 6.3will apply in relation to both the Price and the Commissioning Cost.

14.4 If no amount is specified in the Quote Schedule or elsewhere in the Contract as to a Commissioning Cost, no amount in addition to the Price will be payable by the Buyer for the carrying out of the Commissioning.

14.5 The Buyer indemnifies and will keep indemnified the Seller against all loss or damage to property and/or injury or death to persons occurring in connection with the carrying out of the Commissioning of the Goods.

14.6 No failure by the Seller for any reason to carry out the Commissioning at the agreed times and/or places, or at all, will relieve the Buyer from any obligations under the Contract.

15. Training

15.1 If specified in the Quote Schedule or otherwise agreed by the Seller as part of the Contract, the Seller will provide the Training to the Buyer’s nominated personnel in relation to the operation of the Goods.

15.2 The Buyer will make available all assistance, information, personnel and items required by the Seller, in its opinion, to facilitate the Training at the times and places agreed by the Seller. Failure by the Buyer to comply with this clause 15.2 will, at the option of the Seller, effect an immediate and complete release of the Seller’s obligations to provide any Training or any part thereof to them at the agreed times and places, or at all.

15.3 If an amount is specified in the Quote Schedule, or has otherwise been agreed as part of the Contract, as to a Training Cost, the Buyer will pay that amount in addition to the Price. The provisions of clauses 6.1 to 6.3 will apply in relation to both the Price and the Training Cost.

15.4 If no amount is specified in the Quote Schedule or has otherwise been agreed as part of the Contract as to a Training Cost, no amount in addition to the Price will be payable by the Buyer for the provision of the Training.

15.5 The Buyer indemnifies and will keep indemnified the Seller against all loss of or damage to property and/or injury or death to persons occurring in connection with the Training.

15.6 No failure by the Seller to provide the Training at the agreed times or places, or at all, will relieve the Buyer from its obligations under the Contract.

16. Governing Law

16.1 This Contract is governed by and construed in accordance with the laws of New South Wales and the Buyer irrevocably submits to the jurisdiction of the Courts of that State.