| 1. |
Background |
| 1.1 |
These Terms and Conditions apply to each contract for the
supply of products and / or services ( Goods
) from Engineering Software Solutions Pty Ltd ( ESS
) of 1-5 Hawke Street Albert Park SA 5014 to any
customer ( Customer ). |
| 1.2 |
A contract for the supply and purchase of Goods (
Contract ) will be formed, on these Terms and
Conditions, immediately when a Customer requests the supply of
goods (verbally or otherwise). |
| 1.3 |
A Customer must not cancel any Contract without:
(a) the prior written consent of ESS; and
(b) on terms which will indemnify ESS for all costs,
expenses and losses incurred as a result of that cancellation.
|
| 2 |
Supply or quoted price |
| 2.1 |
ESS reserves the right to vary the supply or quoted
prices at any time upon notice to the Customer to take into
account increased costs. |
| 2.2 |
All quoted prices are exclusive of goods and services
tax unless otherwise noted on the quotation ( GST
). |
| 2.3 |
All quoted prices are in Australia currency (Dollar).
|
| 2.4 |
Exchange rates for overseas Contract shall be determined
at time of processing the sales transaction (
Invoice ). |
| 3. |
Additional charges
In addition to the quoted price, ESS may charge the
Customer for:
(a) any preliminary work performed by ESS;
(b) additional work required to be done as a result of
the Customer changing or clarifying their instructions;
(c) for any increases in costs, charges and expenses
incurred by ESS in providing the Goods (including increases
in costs of labour, materials, freight, storage, handling
insurance, and any adverse changes in exchange rates);
(d) freight, insurance and transport costs; and
(e) storage, administrative and other costs if the
Goods are suspended for more than 7 days at the request of
the Customer or as a result of something for which the
Customer is responsible. |
| 4. |
Payment |
| 4.1 |
The Customer must pay each Invoice within 7 days of
the Invoice date. |
| 4.2 |
If the Customer fails to pay any Invoice (in full) on
or before the due date, ESS may (in its discretion and
without prejudice to any other rights or remedies that it
may have):
(a) charge interest at a rate not exceeding the
Commonwealth Bank of Australia's overdraft rate plus 2% on
overdue amounts; and
(b) suspend any further deliveries to the Customer
or terminate any Contract in relation to undelivered
Goods. |
| 4.3 |
The Customer must pay to ESS any costs, expenses or
losses incurred by ESS as a result of the Customer's
failure to pay all amounts due to ESS by the relevant
due date including, without limitation, any debt
collection and legal costs incurred on a full indemnity
basis. |
| 5. |
Insolvency
If the Customer becomes, or resolves to become,
subject to any form of insolvency administration, then:
(a) all amounts outstanding by the Customer to ESS
will immediately become due and payable; and
(b) the Customer's right to possession of any
Goods supplied by ESS which has not been paid for in
full by the Customer ceases, and ESS will be entitled to
recover possession of those Goods under clause 6. |
| 6. |
Retention of ownership |
| 6.1 |
Until the Customer has paid all sums outstanding
in relation to the Goods:
(a) ESS will retain title in the Goods;
(b) if the Goods are in the Customer's
possession, the Customer will hold the Goods as
trustee for ESS and must store the Goods so that they
are clearly identifiable as the property of ESS;
(c) ESS may call for and recover possession of
the Goods (for which purposes ESS's employees or
agents may enter the Customer's premises and take
possession of the Goods without liability to the
Customer) and the Customer must deliver the Goods to
ESS if requested to do so by ESS;
(d) the Customer may, in the ordinary course of
the Customer's business, sell the Goods to a third
party, provided that the Customer holds the proceeds
of sale on trust for ESS, and accounts to ESS for
those sums if requested to do so by ESS. |
| 7. |
Risk and Title |
| 7.1 |
The risk in any Goods supplied to, or sold to a
Customer passes to the Customer:
(a) if ESS delivers the Goods to the
Customer's premises - at the time of delivery; or
(b) otherwise, at the time ESS notifies the
Customer that the Goods are ready for collection. |
| 7.2 |
Title to the Goods passes to the Customer upon
payment in full by the Customer of the total
invoiced price for the Goods and any other amounts
due by the Customer to ESS. |
| 8. |
Delivery |
| 8.1 |
ESS will make all reasonable efforts to have
Goods delivered to the Customer on the date(s)
agreed between the parties, however if for any
reason delivery is not made on the agreed dates,
then:
(a) ESS will not be liable to the Customer;
and
(b) the Customer will not be entitled to
cancel any Contract as a consequence of ESS's
failure to deliver the Works on the agreed
date(s). |
| 9. |
Warranties and Limitation of
Liability |
| 9.1 |
In addition to any written express warranty
given by ESS in relation to the Goods, ESS
acknowledges that State and Federal legislation
implies certain conditions and warranties into
agreements for the supply of Goods which cannot
be excluded, restricted or modified (
Non-Excludable Warranties ). ESS does
not exclude the Non-Excludable Warranties. |
| 9.2 |
To the extent permissible by law, the
liability of ESS under any of the Non-Excludable
Warranties is limited to, at ESS's discretion
replacing the Goods, repairing the Goods or
payment for the cost of replacing or repairing
the Goods. |
| 9.3 |
Except for the Non-Excludable Warranties,
ESS excludes all other conditions and warranties
implied by custom, the general law or statute. |
| 9.4 |
To the extent permissible by law ESS will
not be liable for any personal injury,
incidental damages, consequential losses, loss
of profit or any like claims whatsoever arising
from any use of, or incidental to, the Goods or
arising out of ESS's negligence in any way
whatsoever. |
| 9.5 |
To the extent that the Goods are, or any
component part of the Goods is, supplied to ESS
by a third party, any warranty offered by ESS in
relation to the Goods or component part of the
Goods will be limited to ESS's right of redress
(if any) against the third party supplier
arising out of any alleged fault/defect in the
Goods. |
| 10. |
Customer Information |
| 10.1 |
The parties acknowledge that some Goods are
designed and completed in accordance with
information supplied by the Customer (
Customer Information ). |
| 10.2 |
ESS will not be responsible for any defects
in the Goods which are the result (in whole or
in part) of defects, omissions or errors in the
Customer Information. |
| 11 |
Force Majeure
ESS will not be responsible for a
failure to supply, perform or deliver, any Goods
in the event of any fact, circumstance, matter
or thing beyond the reasonable control of ESS
and shall be relieved of that obligation to the
extent, and for the period that it is unable to
supply, perform or deliver the Goods. |
| 12. |
Returned Goods |
| 12.1 |
ESS will not be under any obligation to
accept Goods returned by the Customer and will
do so only on terms to be agreed (in writing)
in each individual case. |
| 12.2 |
Subject to clause 12.1, ESS will not
accept Goods returned by the Customer unless
the following conditions are satisfied:
(a) prior arrangements with ESS have
been made;
(b) defects have arisen solely from
faulty materials or workmanship;
(c) the Goods has not received
maltreatment, inattention or interference;
(d) accessories of any kind used by the
Customer are manufactured by or approved by
ESS;
e) the defective Goods are promptly
returned free of cost to ESS; and
(f) the defective Goods were purchased
from ESS by the Customer in the immediately
preceding 12 months. |
| 13. |
GST |
| 13.1 |
Unless specifically described as 'GST
inclusive', any consideration to be paid or
provided for a supply by ESS to the Customer
does not include any amount on account of
GST. |
| 13.2 |
Where any such supply is subject to GST
(other than a supply, the consideration for
which is specifically described as 'GST
inclusive'), the Customer must, at the same
time and in the same manner as the GST
exclusive consideration is payable or to be
provided for that supply, pay to ESS an
amount equal to the GST payable by ESS in
respect of that supply. |
| 14. |
Miscellaneous |
| 14.1 |
All Contracts are made in the State of
South Australia and the parties agree to
submit all disputes arising between them to
the courts of South Australia . |
| 14.2 |
ESS may vary these Terms and Conditions
at any time by notice to the Customer. |
| 14.3 |
If any term or part of a term of these
Terms and Conditions is illegal or
unenforceable it may be severed from these
Terms and Conditions and the remaining terms
or parts will continue in force. |
