T: 1300 133 226
Terms & Conditions
PRATT SAFETY PTY LTD (ACN 135 713 825)
In these Terms and Conditions:
“The Company” means Pratt Safety Pty Ltd (ACN 135 713 825) whose registered office is at
91 Northgate Drive, Thomastown, Vic, 3074.
“Goods” means all or part of the items supplied by a Company to the Purchaser.
“Intellectual Property Rights” means all trademarks, business names, Domain names, and website addresses, as well as patents and applications therefore copyrights, registered designs and applications therefore, drawings research developments, inventions, Confidential information, manufacturing, technical and engineering information and know how whenever subsisting or registered, and other industrial or intellectual property owned by the Company and acquired or used exclusively for or in connection with the supply of Goods and/services.
“Price” means the purchase price of the Goods.
“the Purchaser” means the purchaser named in the attached Purchase Order or Quotation.
“Services” means any services provided by the Company to or for the benefit of the Purchaser, whether with or without the supply of Goods.
(a) All Goods and Services sold by the Company are sold on these Terms and Conditions.
(b) These Terms and Conditions shall prevail over all conditions of the Purchaser’s order to the extent of any inconsistencies.
(c) All representations, statements, terms and conditions not embodied in these Terms and Conditions are expressly excluded to the fullest extent permitted by law.
(d) These conditions of sale constitute a separate contract in relation to each item sold by the Company to the Purchaser.
Written quotations provided to the Purchaser by the Company are open for acceptance within the period specified in the quotation or, if no period is specified, for thirty (30) days after the date of the quotation. The written acceptance of a quotation sent or faxed to the Company is a deemed Purchase Order. The written acceptance must be legible, dated and by an authorised representative of the Purchaser, and the Company is entitled to rely on a written acceptance from any Purchaser employee, unless the Purchaser has advised of its authorised representatives in advance.
(a) Unless otherwise stated, all prices quoted by the Company are net, exclusive of:
(i) any tax, duty, levy, charge or charge in the nature of a Goods and services tax or like impost assessed or imposed in respect of any product or service supplied by the Company or fees paid to or received by the company; and
(ii) transportation, freight, postage, installation, packaging, handling, insurance and any other expenses or charges.
(b) The amounts shown in any document provided by the Company shall be conclusive evidence of the debts due from the Purchaser to the Company unless the Purchaser proves otherwise.
(a) The Company may in its quotation, require that the total price shall be payable in cash on the placement of the order, or on delivery of the Goods, or require a part-payment by way of a deposit with the placement of the order.
(b) Where the Purchaser has a credit account with the Company, the price shall be paid in cash or by cheque, credit card or EFT no later than thirty (30) days after end of the month in which invoice is dated.
(c) If the Purchaser fails to pay for any Goods and Services as required by this clause then, without prejudice to any other right or remedy, the Company shall be entitled to charge interest on the outstanding amount from the date of the invoice until paid at the rate of fifteen per cent (15%) per annum.
6. RETENTION OF TITLE
(i) Notwithstanding any other clause contained herein the full legal and equitable title in the Goods shall be retained by the Company its lawful successors in title and assigns and will only be transferred when the Purchaser’s indebtedness to the Company or its lawful agents for the purpose under this Agreement, together with any GST or interest payable is fully discharged.
(ii) Until the moment of receipt of full payment of all the Purchaser’s indebtedness as referred to in paragraph (a)(i) herein the Purchaser shall keep the Goods for and on behalf of the Company.
(b) Notwithstanding any other clause contained herein the risk in all Goods shall pass to the Purchaser immediately upon delivery and all Goods must be paid for notwithstanding the destruction thereof or any damage thereto however caused.
(c) Wherever possible, the Purchaser shall ensure that the Goods are stored in such a way that they are clearly identifiable as the property of the Company and are not intermingled with the property of the Purchaser or any other person. The Purchaser shall not in any way alter or treat the Goods so as to change their quality or nature in any way until as aforesaid and further shall ensure that the Goods remain clearly marked as the Company’s property.
(d) Payment of the amounts owed by the Purchaser to the Company under this Agreement shall be deemed to have been made when cash has been received or cheques for the price and all other moneys owing under this Agreement have been met and honoured in full.
(e) (i) The Company authorises the Purchaser to sell the Goods as the Company’s fiduciary agent for the account of the Company only. The proceeds of sale are the property of the Company and the Purchaser shall hold such proceeds on trust for and on behalf of the Company in a fiduciary capacity. The Purchaser shall keep separate records as to the Goods sold and as to the amount(s) received. Any amount(s) received shall be held by the Purchaser in a separate bank account on behalf of the Company.
(ii) While the Company retains full legal and equitable title in the Goods the Purchaser shall not bail, pledge, mortgage, charge, grant a lien over, lease or assign the Goods by any other way of security. Only sales pursuant to paragraph e(i) hereof are permitted.
(iii) Notwithstanding any period of credit allowed in the Company’s terms and conditions of sale, the Purchaser shall account to the Company for the purchase price of the Goods, (or such part thereof as represents the Goods on-sold) as soon as the Goods (or any of them) are on-sold by the Purchaser and the proceeds of such sale are received by the Purchaser.
(f) The Purchaser shall notify the Company in writing of any intended sale of the Purchaser’s business, which includes or purports to include the Goods as part of the Purchaser’s stock.
(g) In the event of the Purchaser failing to pay for the Goods pursuant to this Agreement or the determination or repudiation of the contract (howsoever occurring) the Company is hereby irrevocably authorised to enter onto the premises of the Purchaser and re-possess the Goods and any other Goods in the Purchaser’s possession the property which is vested in the Company. The Company reserves the right in relation to the Goods until all accounts owed by the Purchaser to the Company are fully paid to immediately, and without notice, enter the Purchaser’s premises (or the premises of any associated company or agent where the Goods are located) and re-take possession of the Goods without liability for trespass or any resulting damage and the right to keep or re-sell any Goods re-possessed pursuant this clause.
(h) Notwithstanding anything contained in these Terms and Conditions, the Company will be entitled to maintain an action against the Purchaser for the purchase price.
7. DELIVERY AND RECEIPT OF GOODS
(a) All Goods and Services delivered by the Company to the Purchaser shall, to the fullest extent permitted by law, be deemed to have been received by the Purchaser in good order and condition and in accordance with any applicable specifications as soon as the delivery docket has been signed by the Purchaser, his carrier or agent.
(b) The Company shall not be responsible for any loss or damage to Goods in transit, unless the Goods were damaged in transit by the Company’s own carrier.
(c) The Company shall not be responsible for any loss or damage to the Purchaser for any late delivery or non-delivery of Goods.
(d) The Purchaser acknowledges that any delivery time provided by the Company is an estimate and shall not be considered a contractual obligation.
(e) Delivery of Goods shall be to the destination nominated in the purchase order or quotation unless the Purchaser advises the Company otherwise in writing.
(f) The risk in the Goods shall pass to the Purchaser upon delivery of the Goods to the Purchaser or collection of the Goods by the Purchaser’s agent or courier as the case may be.
(g) Without limiting the generality of this clause, delivery shall be deemed to have occurred when a delivery docket is signed on behalf of the Purchaser.
8. FORCE MAJEURE
(a) If a force majeure arises, so as to wholly or partly prevent or delay the Company carrying out its obligation under these terms and conditions, the Company shall:
(i) use reasonable endeavours to remove the force majeure as quickly as practicable, but shall not be liable to settle any strike, lock-out, or any other labour difficulty on terms not reasonably acceptable to the Company; and
(ii) notify the Purchaser of the force majeure, its likely duration and the period (in that party’s opinion) of any consequent delay or any other relevant events, and the said dates will be so extended unless the Purchaser disputes the delay period within seven (7) days of receipt of the notice being provided by the Company.
“force majeure”” means any event or condition not existing at the time of this Agreement, and not reasonably foreseeable as at such date, and not reasonably within the control of the Company, which prevents in whole or any material part the performance of one of the parties of its obligations hereunder, or which renders the performance of such obligations so difficult or costly as to make such performance commercially unreasonable, including (but not limited to):
(iii) war, or war-like conditions, riot or civil commotion, terrorism, mobilisation, or insurrections;
(iv) import or export bans, blockades or embargoes; or
(v) statutory or union contract reductions in working hours, strike or lock-out or other labour complex; or
(vi) natural catastrophe, earthquakes, storms, floods, fires, or epidemics.
(vii) For the avoidance of doubt, lack of funds on the part of the Purchaser on the due to date to make any payment required under this contract shall not constitute an event of force majeure.
(a) Packaging will be entirely at the discretion of the Company unless otherwise agreed to in writing between the Company and the Purchaser.
(b) Any special packaging requested by the Purchaser and agreed to by the Company in accordance with this clause will be dealt with in quotation and if excluded, will be deemed as additional costs.
10. CANCELLATION OR VARIATION OF ORDERS
No order may be cancelled or varied except with the written consent of the Company and on terms which will indemnify the Company against all losses.
Where the Goods are installed by the Purchaser and/or a third party, the Company shall not accept any responsibility for loss or damage arising from the installation process.
Pratt Safety Systems warrants Goods and Services against defects in materials, treatment or workmanship and further warrants that Goods and Services will conform to specifications for up to 12 months from the date of invoice. If the Company receives written notice of any defects or non-conformance with the product specifications, the company reserves the right to verify the claim. Upon acceptance of the claim, it will either replace the affected Goods and Services or supply equivalent Goods and Services or repair the affected Goods and Services, the choice of which is at its discretion.
The above warranties do not apply to defects or damage to the Goods and Services arising from any improper use, storage, modification or other misuse not in accordance with the Specifications or directions for use, whether by the Purchaser or any third party. Except to the extent that the exclusion, restriction or modification of certain conditions, warranties and rights is prohibited in the context of these Terms and Conditions by the Trade Practices Act 1974 (Cth) or any equivalent State or Territory legislation as may apply to the supply of Goods and Services hereunder, the
above warranties are in lieu of, and the Purchaser hereby waives and the Company disclaims, all other warranties, whether written or oral, express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose.
13. LIMITATION OF LIABILITY AND REMEDIES
The Company’s liability is limited to the extent described in clause 12 above. Notwithstanding clause 12 above, in no event will the Company be liable for any of the following: actual loss or direct damage that is not listed in clause 12 above; damage for loss relating to the Purchaser’s procurement of substitute Goods and/or Services; and incidental, special, economic and consequential damage.
14. INFORMATION AND DRAWINGS
All descriptive specifications, drawings, dimensions and weights given by the Company or contained in the Company’s catalogue and website are approximations only and shall not form part of any contract unless certified by the Company in writing.
15. INTELLECTUAL PROPERTY
(a) The Purchaser acknowledges and agrees that nothing in this Agreement gives or transfers to the Purchaser any interest in any intellectual property or goodwill of the Company. Ownership of all intellectual property in goodwill created in the course of providing the Goods and Services vests solely in the company immediately as such property is created.
(b) The Purchaser agrees to take all necessary steps to protect the intellectual property of the Company.
(c) This clause survives the termination of this Agreement.
16. PATENTS, PERMITS & LICENCES
(a) Where the Purchaser orders Goods and Services to be custom made, the Company shall not accept responsibility for any patent infringement or claims for the payment of royalties for Goods and Services produced to the design or specifications of the Purchaser.
(b) Goods and Services are produced for the Purchaser with the understanding that the Purchaser has obtained all necessary permits and/or licences.
17. RETURNS AND CREDITS
(a) The Purchaser shall notify the Company in writing of any non-delivery of any consignment within fourteen (14) days of the date provided on the Company’s invoice.
(b) The Purchaser shall notify the Company in writing of any damage or short delivery within three (3) days of receiving the consignment.
(c) Pursuant to clause 12, the Purchaser shall not return Goods and Services to the Company without the prior written approval of the Company.
(d) Subject to the items mentioned above sub-clause (c), returns must be approved by the Company and these returns must be freight pre-paid to be arranged by the Purchaser and subject to a twenty per cent (20%) re-stocking fee.
(e) Goods to be custom-made according to the Purchaser’s specification are not returnable unless the issue relates to the items referred to in sub-clause (c) above.
(f) The Company shall not accept any returns other than those in a saleable condition, unless the Purchaser has received written approval from the Company.
18. LAW APPLICABLE
These Terms and Conditions are to be interpreted in accordance with the laws of the State of Victoria, Australia, and the Purchaser hereby submits to the jurisdiction of the Courts of that State.
19. GENERAL MATTERS
(a) These Terms and Conditions shall not be amended except in writing signed by the Company.
(b) If any provision of these Terms and Conditions is deemed to be unlawful or unenforceable, such provision shall be severed from these Terms and Conditions and all other provisions of these Terms and Conditions shall remain in force.
(c) The failure of the Company to enforce or exercise any right under these Terms and Conditions will not constitute a waiver of any right.
(d) The provision of credit and/or the terms of the continued provision of credit by the Company to the Purchaser shall be in the absolute discretion of the Company. The Company may at any time in its absolute discretion vary or cancel the credit facility available to the Purchaser.