1. These terms and conditions apply notwithstanding any inconsistencies which may be indicated in the customerís order or acceptance unless otherwise expressly agreed in writing by PTS.
Quotations and Prices
2. A quotation shall not be construed as an obligation to sell or hire and no contractual relationship shall arise until the customerís order has been accepted by PTS.
3. All priced quoted by PTS are estimates at the time of quotation and are subject to alteration due to any subsequent change in:
3.1 the costs of production, manufacture or supply
3.2 taxes or charges (including the introduction of GST)
3.3 any other indirect expenses incurred by PTS.
4. Unless otherwise agreed by PTS in writing all goods and services will be charged for at the price applicable at the date of delivery.
Terms of Payment
5. Subject to clause 6 the price for goods and services is to be paid net cash within 30 days (in the case of spare parts), or in the case of all other goods and services within 7 days of the date of the invoice.
6. PTS may vary the terms of payment by giving notice to the customer and may require payment in cash in full prior to delivery.
7. Any description of goods or services in given by way of identification only and the use of such description shall not constitute the contract a sale by description.
8. All conditions and warranties expressed or implied by statute, common law, equity, trade usage or any other reason are expressly excluded to the maximum extent permitted by law.
9. PTS shall be under no liability to the customer for any loss or damage to persons or property or for death or injury caused by any act or omission (including negligent acts or omissions) of PTS.
10. Subject to the qualification contain in 68A of the Trade Practices act 1974, should PTS be liable for any breach of a condition or warranty, mandatorily implied by law, its liability for such a breach shall be limited to one of the following as determined by PTS:
10.1 In the case of goods:
10.1.1 the replacement of the goods or the supply of equivalent goods;
10.1.2 the repair of the goods;
10.1.3 the payment of the cost of replacing the goods or of acquiring equivalent goods; or
10.1.4 the payment of the costs of having the goods repaired
10.2 In the case of services:
10.2.1 the supplying of the services again; or
10.2.2 the payment of the cost of having the services supplied again.
Fitness For Purpose
11. Subject to any legislation or express agreement to the contrary, the customer acknowledges that any advice or recommendations given by PTS in relation to whether the goods or services to be supplied are fit for any particular purpose, shall be accepted by the customer at the customerís risk.
12. While every endeavour will be made to effect delivery by the given date PTS is not liable for any loss or damages suffered by the customer by
reason of PTSís failure to deliver or delay in delivery arising from any circumstances of any nature whatsoever including (without limiting the generality of the foregoing.):
12.1 fire, flood and explosion
12.2 strike, lockout or other industrial act or dispute
12.3 the breakdown or accident to plant
12.4 unavailability or shortage of raw material, labour, power supplies or transport facilities
12.5 failure or inability to obtain licenses
12.6 act of god; or
12.7 any other order or direction by any Local, State or Federal Government or Government authority or instrumentality.
13. If PTS determines that it is, or may be, unable to deliver with a reasonable time or at all the contract may be cancelled by PTS. In the event of cancellation the customers shall have no claim against PTS for any damage, loss, costs or expenses whatsoever.
14. The customer shall not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery.
15. Any claims for incomplete or wrongful delivery of goods or services or faulty workmanship must be notified in writing to PTS within 14 days after delivery and any claim not so notified within that time (time being of the essence) shall be deemed to have been absolutely waived.
Property and Risk Ė
16. All goods sold by PTS to the customer shall remain the sole and absolute property of PTS as legal and equitable owner, and property and title to the goods shall not pass from PTS to the customer, until the customer had paid for the goods in full.
17. Until the goods are paid in full, the customer shall store and use the goods separately form its own goods or those of any other person in a manner which renders them clearly identifiable as the goods of PTS and shall not allow the goods to be incorporated in or used as material for other goods.
18. PTS may at any time without the need to gibe notice to the customer take possession of all goods which remain the property of PTS and, for that purpose, the customer hereby irrevocably:
18.1 authorise PTS to enter any premises where PTSís goods are or may be situated and to use such reasonable force as may be required to enter such premises, including the breaking of locks or chains which secure the premises.
18.2 undertake to PTS to procure the consent of any person having any interest in the premises where PTSís goods are or may be situated to entry of those premises by PTS; and
18.3 indemnifies PTS against any cost or expense of all claims, actions or suits whatsoever arising from the entry by PTS into or upon any premises where PTSís goods are or may be situated, for purposes of PTS taking possession of its goods pursuant to this clause.
19. The risk of loss or damage of the goods shall pass to the customer on:
19.1 the passing of property in the goods to the customer
19.2 the physical delivery of the goods to the customer or any third party nominated by, or acting on behalf of, the customer; or
19.3 the physical delivery of the goods to any carrier (whether it is the customerís nominated carrier or not) whichever event occurs first.
20. Once the risk of loss or damage to the goods passes to the customer pursuant to clause 19 the goods shall be at the customerís risk absolutely and the customer shall be responsible for obtaining insurance cover against all possible risk and contingencies.
21 notwithstanding any other terms and conditions the customer may sell the goods to a third party if the normal course of business and deliver them to that party provided that until PTS is paid, the customer holds the whole of the proceeds of sale to the third party (and claims for those monies due) on trust for and on behalf of PTS.
22 Failure by PTS to insist upon strict performance of any term, warranty or condition of the contract shall not be deemed a waiver thereof or of any rights PTS may have. Further no express waiver shall be deemed a waiver of any subsequent breach of any term, warranty or condition.
23 Failure by PTS to insist upon strict performance of any term, warranty or condition of the contract shall not be deemed a waiver thereof or of any rights PTS may have. Further no express waiver shall be deemed a waiver of any subsequent breach of any term, warranty or condition.
Interest on Overdue or Unpaid Accounts
24 If payment due under the contract are made within seven days (7 days) of the due date interest will be charged at a rate of 2% above the interest from time to time charged by PTSís bankers for advances on overdrawn current accounts (on amounts not exceeding $100,000) calculated from the due date of payment until payment is made in full. This interest is payable to PTS by way of liquidated damages.
Costs on overdue or unpaid accounts or breach of contract
25 The customer shall completely indemnify PTS for all expenses, costs and legal fees paid or incurred by PTS in respect of:
25.1 Any breach of failure of the customer to observe or perform the terms, warranties or conditions of the contract.
25.2 The exercise and/or enforcement (or attempted exercise and/or enforcement) of any of PTSís rights or remedies from the contract.
26 Any notice to be given by the customer to PTS shall be in writing and be sent by prepaid mail to PTSís business address. No notice shall be deemed to have been given until it is actually received at such business address.
27 The contract shall be governed by the construed in accordance with the laws of Western Australia for Roadwest goods and services, Victoria for CIMC Vehicle Australia goods and services, New South Wales for LM Byrne goods and services and New South Wales for Preston Trailers goods and services, and the customer submits to the non-exclusive jurisdiction of the courts of that State and all courts of appeal therefrom
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