“The Company” shall mean tmdigital Pty Ltd. “Buyer” shall mean the person, firm or company to whom the goods are offered, and shall include, as the case may be his legal personal representatives, successors or permitted assigns. “Goods” means the goods supplied by the Company to the Buyer under these Terms and Conditions of Sale.
1. Except where otherwise agreed in writing all orders are accepted subject to the following conditions of sale. These conditions shall take precedence over any other terms and conditions, and the acceptance of an order does not constitute recognition of terms or conditions other than the Company’s own. Where any one or more conditions is waived this shall in no way affect or alter the validity of the other conditions herein contained.
2. All prices are for the finished and packed Goods unless specified to the contrary. The Company reserves the right to increase the price of Goods to reflect any increase in the Company’s costs which is due to any factor beyond the Company’s control (such as, without limitation, any foreign exchange fluctuations, currency regulation, alteration of duties or taxes, significant increases in the cost of labour material or other costs of manufacture), quantities or specifications for the Goods which is requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate information or instructions.
3. The details contained in our leaflets, descriptions and quotations, drawings, illustrations, technical data, specifications relating to dimensions and performance are not binding unless they have been confirmed by us in writing. The Company reserves the right to supply Goods conforming to the latest design and specifications and the right to make any changes to the specifications of its products.
4. All tools, equipment, etc. shall remain entirely the Company’s property even when part of the cost of such items is invoiced to and paid by the Buyer.
5. The Company shall dispatch Goods by the most appropriate method which may be by post, private or public carrier.
6. Times or dates for delivery or performances are business estimates only and not contractual obligations of the Company. Times therefore will not be the essence of the contract and providing the Company makes delivery within a reasonable time (taking into account all the circumstances) the Buyer will be bound to accept delivery if made after the date fixed, and shall not be entitled to repudiate the contract or claim damages in respect of late delivery.
7. Subject to the other provisions of these Terms and Conditions of Sale including the conditions set out below, the Company warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship.
8. The above warranties are given subject to the following conditions which shall exclude, restrict or modify the above warranties to the full extent permitted by law:
(a) The company shall be under no liability in respect of any defect arising from any drawing or specifications supplied by the Buyer.
(b) The Company shall be under no liability under the above warranties (or any other warranty, condition or guarantee) if the total price of the Goods has not been paid by the due date for payment.
(c) Any claim by the Buyer which is based on any defect in the quantity or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the company in writing within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Company accordingly), the Buyer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure.
(d) Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or the failure to meet specification is notified to the Company in accordance with these conditions the Company shall be entitled to replace the Goods (or the part in question) free of charge or, at the Company’s sole discretion, supply equivalent Goods, repair the Goods, pay the cost of replacing the Goods or of acquiring equivalent Goods, or pay the cost of having the Goods repaired, but the Company shall have no further liability to the Buyer.
(e) The Company shall not be liable to the buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the company’s negligence, or the negligence of the Company’s employees or agents or otherwise) which arise out of or in connection with the supply of Goods or their use, except as expressly provided in these conditions or except to the extent implied by statute.
(f) The Company shall not be liable to the Buyer or be deemed to be in breach of the contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations if the delay or failure was due to any cause beyond the Company’s reasonable control.
(g) The Company shall not be liable for any unforeseeable damages.
(i) Act of god, explosion, flood, tempest, fire or accident:
(ii) War or threat of war, sabotage, insurrection, civil disturbance or requisition:
(iii) Import or export regulations or embargos:
(iv) Strikes, lock-outs or other industrial actions or trade disputes (whether involving the company’s employees or employees of a third party):
(v) Difficulties in obtaining raw materials, labour, fuel, parts or machinery:
(vi) Power failure or breakdown in machinery, delays caused by transportation or lack of transportation facilities:
(h) The estimated date of delivery is to be extended until the cessation of the effect of such matters listed above, and that where the delay continues for more than 6 months, the company is entitled to give the Buyer notice of repudiation of the contract with respect to Goods not delivered.
9. Payment shall be a 50% deposit upon the agreement of a purchase order and the balance strictly upon delivery unless other written terms have been agreed. The Company shall be entitled to interest calculated daily at 10% p.a. above the prevailing bank Base Lending Rate on all amounts overdue accruing from the due date for payment until the date of receipt of payment by the Company.
10. Any agreements, warranties or offers made by the company’s representative or agents are not binding unless and until they have been confirmed in writing by the company.
11. The Buyer accepts that Goods ordered by him are suitable for the purpose for which they are intended and (save to the extent that any such warranty is not excludable) all warranties implied by statute as to the suitability of the Goods for any particular purpose are hereby excluded. The Company does not undertake to take back to stock for credit or otherwise, any unwanted or surplus Goods or material which the Buyer or any other customers may have on their hands.
12. Where Goods are at the Buyer’s request made and supplied by the Company other than to the Company’s own specification the Company accepts no liability whatsoever for infringement or alleged infringement of any letters, patents, registered designs or similar rights in respect therefore and the buyer will indemnify the Company against such claims on a full indemnity basis.
13. The interpretation and the purpose of this contract and of these conditions will be governed by the Laws of Victoria.
14. The Buyer must pay GST on a Taxable Supply made to it under this agreement. It must do so at the same time and in the same manner as it is required to pay the consideration for the Taxable Supply to which the GST relates. The Company must issue a tax invoice in the format required by law to the Buyer for the Taxable Supply. The tax invoice must set out the amount of the GST payable by the Buyer. The tax invoice must be issued at the same time as the consideration for the Taxable Supply is due.
15. Under this agreement, the Buyer grants the Company permission to use images and samples of the Buyers Goods strictly for the purposes of marketing and self promotion. They are not to be resold to any other third party.