In these terms and conditions of sale, the following terms in bold and in italics (in any form) are to be interpreted as follows:
Company Leveltec Engineering Pty Limited ACN 068 338 992
Customer the purchaser of Goods from the Company.
Goods all Goods sold and/or delivered by the Company to the Customer.
Terms these terms and conditions of sale.
(a) The only terms and conditions which are binding upon the parties with respect to the supply of any Goods from the Company to the Customer are:
(i) those specified in these Terms; and
(ii) those, if any, which are implied by law and which cannot be excluded.
(b) No modification, alteration, waiver, or cancellation of any of these Terms is binding on the Company unless confirmed in writing by the Company.
(a) All Company quotes remain valid for 30 days unless stated otherwise.
(b) The Company reserves the right to amend and requote in the event the Customer requests a variation to the Scope of Works.
(c) Custom projects may be subjected to a project commencement and project milestone fee structure, which is to be detailed in writing on any Purchase Order or Sales order Confirmation in accordance with clause 10.
(a) The Company reserves the right to refuse a Purchase Order that contains incorrect prices.
(b) The price charged for the Goods is specified in the Customer Sales Order Confirmation and the Company invoice.
(c) Unless otherwise stated or agreed, all prices for Goods payable under these Terms:
(i) are exclusive of GST, and the Customer, as recipient of a taxable supply, must pay at the same time and in the same manner as the price is due to be paid, the amount of any GST payable in respect of
the taxable supply; and
(ii) do not, unless otherwise stated or agreed in writing, include any other sales tax or other governmental taxes and, should any such taxes be levied or imposed by the Commonwealth of Australia or State Governments, then the Customer shall be liable for and must promptly pay all taxes so levied or imposed.
(d) Customers residing outside of Australia are solely responsible for all applicable sales tax, import taxes and duties associated with the Goods unless otherwise stated in the Company quote.
5. Order Cancellations
(a) Following the issuance of the Sales Order Confirmation, no order may be cancelled, modified or deferred without the prior written consent of the Company (which is at the Company’s sole discretion).
(b) The Company reserves the right to refuse a cancellation request by the Customer for all custom or specially ordered (non-stock) Goods.
(a) The Company applies best endeavours to meet all confirmed delivery dates, however, these dates are only an estimate and the Company shall not be liable for a failure to meet delivery dates.
(b) The Company shall notify the Customer at once where it is made aware of any delays to the delivery of the Goods.
(c) Failure to meet a delivery date shall not prejudice any contracts regarding future deliveries.
(d) The Company offers freight for all purchased Goods through a third-party vendor. Freight charges will be quoted prior to; and must be included on the Customer Purchase Order prior to Sales Order Confirmation.
(e) The Customer reserves the right to nominate their own preferred freight carrier. Where the Customer chooses their own freight carrier, the Customer is solely responsible for tracking deliveries.
(f) The Company reserves the right to deliver the Goods in whole or in part, as well as to deliver prior to the delivery date, and in such case, the Customer must not refuse to accept delivery of the Goods.
Goods supplied and/or delivered by the Company to the Customer are at the Customer’s risk immediately on the earlier of, dispatch of the Goods to the Customer or, their delivery to the Purchaser or into the Purchaser’s custody.
(a) The Customer will pay the Company for the Goods supplied; due date as stated on the Proforma or Sales invoice. Time is of the essence in respect of the Customer’s obligation to make payment for
Goods sold by the Company to the Customer.
(b) Payments are to be made to the Company without any deduction or discount other than as stated in these Terms or in the relevant invoice or statement.
(c) When making payments to the Company, the Customer is responsible for all bank fees associated with electronic fund transfers.
(d) Customer payments using a valid credit card will attract a % surcharge as set by the Company.
(e) All invoices, agreed milestones and expired acceptance periods must be paid withing 30 days of that date unless agreed otherwise in writing by both parties. Being date of invoice and or completed milestone and or expired Acceptance period
9. Trading Accounts
(a) The Company reserves the right, in its absolute discretion to grant trading accounts to approved Customers only.
(b) The first order for all new Customer trading accounts will be Prepaid. All orders thereafter will be as per the trading account terms.
(c) The first order following a 12-month inactive period of the Customers’ trading account will again be subjected to Prepaid terms.
(d) Where overdue accounts are referred to a collection agency or law firm by the Company, the Customer will be liable for all debt recovery costs incurred until the debt is collected in full, including all debt collection and legal costs.
(e) The Company is entitled to terminate any Customer order or revoke any credit terms if the Customer fails to punctually pay monies due to the Company, has any security enforced against it, has an Administrator appointed under the Corporations Act, commits an act of bankruptcy or, being a Company, passes a resolution for winding up (except for the purpose of reconstruction) or an application is made for the winding up of the Customer.
(f) Where the Company terminates a Customer Order in whole or in part under the provisions of Clause 5, it does so without any liability.
(g) Termination by the Company is without prejudice to any other right or obligation, which may have accrued prior to termination.
10. Specific Payment Terms
(a) Clauses 8 and 9 are subject to any additional terms and conditions of payment or fees (including any project commencement or project milestone fee as determined by the Company) which have been agreed to between the Company and the Customer and detailed in writing on any Purchase Order or Sales Order Confirmation.
(b) For the avoidance of doubt, any modification or variation to these Terms pursuant to the above clause 10. (a) is binding on the Company and the Customer pursuant to clause 2.(b) above.
11. Retention of Title in Goods
The Customer agrees that the title to the Goods sold by the Company to the Customer does not pass to the Customer until the price for such Goods supplied by the Company to the Customer is paid in full in cash or cleared funds and, until such time as the Customer has paid in full, the Company holds the Goods as the fiduciary agent and bailee of the Customer.
12. Damaged or Incorrect Goods
(a) The Customer must inspect all Goods delivered immediately upon delivery and it must notify the Company in writing within three (3) working days (time being of the essence) of receipt of the Goods,
or in cases of non-delivery, of date invoice is received, of any shortages, incorrect Goods, or damages in transit.
(b) If the Customer fails to give such notice within that timeframe, then to the extent permitted by law the related Goods are deemed to have been accepted by the Customer to the Customer’s satisfaction and the Customer must pay for the Goods in accordance with clauses 8 or 9 of these Terms.
(c) All statutory or implied conditions and warranties which may otherwise be binding on the Company are excluded to the extent permitted by law, unless otherwise agreed.
(d) To the extent permitted by law, any condition or warranty which cannot be legally excluded under clause 12(c) is limited to, at the option of the Company:
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the payment of the cost of replacing the Goods or of acquiring equivalent Goods;
(iii) the repair of the Goods at such location as is deemed suitable by and to the Company;
(iv) the payment for having the Goods repaired, excluding demurrage; or
(v) refund the relevant price paid by the Customer.
(e) No Goods will be accepted, or replacements issued without prior approval of the Company.
(f) Filing a claim is the sole responsibility of the Customer.
13. Permission to Return Goods
(a) The Company will only consider accepting the return of Goods within thirty (30) days of the original invoice date.
(b) No returned Goods will be accepted the Company unless agreed to previously in writing through the issue of a Return Authorisation Number.
(c) All Goods returned to the Company must be returned in original, unopened, and undamaged packaging.
(d) All freight costs associated with the return of Goods (excluding damaged or incorrectly supplied Goods) shall be prepaid by the Customer.
(e) The Company reserves the right to charge a restocking administration fee of up to AU$100 per restocking and an agreed percentage of the items value for all Goods returned in original, saleable condition.
(f) If the Company gives its written approval for the return of Goods which are not deemed to have been accepted by the Customer under clause 11, the Company must refund to the Customer the freight and cartage costs for the return of the Goods if the Customer’s claim that the Goods are defective or not in accordance with these Terms is found to be valid.
14. Fit for Purpose
(a) The Customer is solely responsible for ensuring the fitness of purpose of the Goods purchased.
(b) The Customer will not use the Goods for any purposes other than stated and use the Goods strictly in accordance with instructions and/or supporting documentation supplied with the Goods, or as directed by the Company.
15. Warranties and Limitation of Liability
(a) All Goods are sold with a 12-month warranty from the date of purchase.
(b) All warranty claims by the Customer must be made in writing to the Company.
(c) The Customer must not carry out any remedial work to alleged defective Goods without first obtaining the written consent of the Company to do so.
(d) The Goods to which the warranty claim relates must be returned within the warranty period for a full quality assessment by the Company. Where these requirements are not met, the Company shall be discharged from any liability in this matter.
(e) The Company reserves the right, and at its option, to replace, repair or refund the purchase price of any Goods returned to the Company; and shown to our satisfaction to be faulty, subject to a claim being made within the stated warranty period.
(f) Warranties do not include, and no liability is accepted in relation to consequential damage, injury, or loss of revenue arising from defective items whether such a claim arises or otherwise.
16. Force Majeure
(a) The Company will not be liable for any loss incurred as a result of delay or failure to meet an accepted order or to observe any of these terms and conditions (other than an obligation to pay money) due to an event of force majeure, being any cause or circumstance beyond the Company’s control, including but not limited to any failure or delay in performance caused by any strikes, lock-outs, labour disputes, fires, acts of God or public enemy, malicious or accidental damage, delays in transport, breakdowns in machinery or restrictions or prohibitions by any Government or any semi-Government authorities or embargos.
(b) During the continuance of an event of force majeure affecting the Company, its obligations hereunder will be suspended during the time, but only to the extent that, compliance is prevented or delayed.
17. Governing Law
These Terms shall be governed by and construed in accordance with the laws of the State of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the courts of that State.
18. Dispute Resolution
If any dispute arises in relation to matters which are the subject of these Terms, a party must not commence any court or arbitration proceedings in relation to such a dispute unless the parties have complied with the following provisions of this clause 18 except where a party seeks interlocutory relief:
(a) A party claiming that a dispute has arisen out of or in relation to these Terms must give notice to the other party specifying the nature of the dispute;
(b) if, within fourteen (14) days of receipt of the notice, or such further period as may be agreed in writing by the parties, the parties are unable to resolve the dispute or reach agreement as to;
(i) the dispute resolution technique and procedures to be adopted;
(ii) the timetable for all steps in those procedures; and
(iii) the selection and compensation of the independent person required for such technique. the parties must mediate the dispute in accordance with the Mediation Rules of the Law Society of New South Wales, and the President of the Law Society of New South Wales or the President’s nominee will select the mediator unless the parties agree on the mediator to be engaged.
The Customer shall not be entitled to assign or transfer its rights, obligations and interests under these Terms without the prior written consent of the Company.
(a) These Terms contain the entire agreement and understanding between the Company and the Customer on everything connected with the subject matter of these Terms, and supersede any prior agreement, representations or understanding on anything connected with that subject matter.
(b) The Company and the Customer have entered into these Terms without relying on any representation by the other or any servant or agent of the other.
(c) The parties agree that any provisions of these Terms which are to apply after completion of, and payment for, the supply of Goods will not merge on such completion and will continue to be binding on the parties.
(d) These Terms may only be amended or supplemented by agreement in writing of the parties.
(e) All provisions of these Terms shall be construed as not to be invalid, illegal or unenforceable in any respect but if any such provision on its true interpretation is illegal, invalid or unenforceable, then that provision shall be read down to such extent as may be necessary to ensure that it is not illegal, invalid or unenforceable and so as to give it a valid operation of a partial character provided that, if any such provision or part thereof cannot be so read down, such provision shall be deemed to be void and severable and the remaining provisions hereof shall not in any way be affected or impaired.
(f) A power or right may only be waived in writing by the party to be bound by the waiver.
(g) No rule of construction shall apply to the disadvantage of a party on the basis that that party prepared these Terms or seeks to rely on and enforce them.