Terms & Conditions
In this document the following words shall have the following meanings:
- “Customer”: means the organisation or person who buys Goods.
- “Goods”: means the articles to be supplied to the Customer by the Seller.
- “Company”: means Seadraulics Pty Ltd.
- “Intellectual Property Rights”: means all patents, registered and unregistered designs, copyright, trademarks, know-how and all other forms of intellectual property wherever in the world enforceable.
- These Terms & Conditions shall apply to sales of Goods and/or Services by the Company to the Customer to the exclusion of all other terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately from such terms, that it wishes such terms to apply and this has been acknowledged by the Company in writing.
- Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Company.
- Any notice required or permitted to be given by either party to the other under these Terms and Conditions shall be in writing addressed to that other party at its principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
Therefore, the Company agrees to sell its equipment in accordance with the contract agreed on and these terms and conditions.
3. Quotations, Acceptance and variation
- Any quotation given or provided by the Company shall remain valid for a period of 30 days.
- A quotation is not in any way binding on the Company.
- The Company is entitled to withdraw or amend a quotation.
- The Customer acknowledges that the Company is not obliged to inquire as to the authority of the person placing an order on behalf of the Customer and all orders placed by the Customer with the Company will be deemed to have been authorised by, and made on behalf of, the Customer
- An order will be deemed to be accepted by the Company upon written notification of acceptance by the Company to the Customer. Once the company has accepted the order the customer agrees to pay for the order in accordance with these terms and conditions of trade.
3. Sale of Goods
Retention of title of Goods
- Ownership of and title of the Goods shall not pass to the Customer until the Company has received full payment for the invoice sent with respect to the ordered goods.
- Until ownership has passed, the Customer will;
- i) hold the goods on a fiduciary basis as the Companies’ bailee and maintain the goods in a satisfactory condition.
- ii) Store the Goods in a way that they remain readily identifiable as the Company’s property.
- iii) It is the Customer’s duty to have an insurance in place on behalf of the company for the Goods full price against all risks.
- iv) Not destroy, deface or obscure any identifying mark or packaging on or relating to the equipment
- v) Maintain the Goods in satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonably satisfaction of the Company; on request the Customer shall procure the policy of insurance to the Company.
- vi) Hold the proceeds of the insurance referred to in clause 3.b.v on trust for the company and not mix them with any other money nor pay the proceeds into an overdrawn bank account.
- The Customer may re-sell the Goods before ownership has passed to it solely on the following conditions;
- i) Any sale shall be affected in the ordinary course of the Customer’s business at full market value
- ii) Any such sale shall be a sale of the Company’s property on the Customer’s own behalf and the Customer shall deal as principal in making such a sale.
- The Customer’s right to possession of the Equipment shall terminate immediately if:
- i) The Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or resolution is passed or a petition presented to any court for the winding up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer
- ii) The customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the contract or any other contract between the Company and the Customer, or is unable to pay its debts.
- iii) The Customer encumbers or in any way charges any of the equipment.
- The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
- The Customer grants the Company, its agents and employees an irrevocable licence to, at any time, enter any premises where the goods are or may be stored in order to inspect them, or where the Customer’s rights to possession has terminated, recover them.
4. Price and Payment
- The currency applicable will be stated on the quote. If no currency is specifically stated, then the prices are considered to be in Australian dollars.
- The Company is entitled from time to time to vary the price of any of its products, provided that once an order has been accepted, the Customer will be entitled to rely on the pricing of that order.
- The Company shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at a rate of 15 per cent per annum above the base rate of the National Australian Bank.
- For Customers accepted during the account application process and holding an account with the company, payment for all products are to be made within 30 days following the issue date of an invoice to the Customer.
- For New Customers or customers not accepted during the account application process, payment terms will depend on the complexity of the agreement.
- i) For products requiring upfront design and development, payment terms will be agreed prior to order acceptance.
- ii) For straight forward sales, payment will be required prior to shipping.
- If payment of the price or any part thereof is not made by the due date, unless otherwise agreed between both parties the due date is 30 days after the invoice date, the company shall be entitled to:
- i) Require payment in advance of delivery in relation to any Goods not previously delivered.
- ii) Refuse to make delivery of any undelivered Goods without incurring any liability whatsoever to the Customer for non-delivery or any delay in delivery
- The Customer acknowledges that it is not entitled to claim any offset or counterclaim against the Company in relation to any unpaid invoice unless agreed upon by the Company in writing.
- The Company is entitled to withhold further supply of products to the Customer should any invoice remain outstanding at any time. The Customer agrees that the Company shall not be liable for any loss or damage whatsoever resulting from the withholding of supply in these circumstances.
- The Customer acknowledges that risk in the Goods shall pass to the Customer upon dispatch by the Company and the Company shall not be liable for any accidental loss or damage to the products in transit and the Customer unconditionally releases the Company from all and any claims in that regard.
- Where the Customer chooses to collect the Goods itself, risk will pass when the Goods are entrusted to it or set aside for its collection, whichever happens first. The Customer acknowledges that it is responsible for ensuring the products in transit and agrees that it will not make any claim or demand on the Company in that regard.
Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Customer hereby affirms that it does not in any way rely on any description when entering into the contract.
- Unless otherwise agreed in writing, delivery of the Goods shall take place at the address specified by the Customer on, or as close as possible to the date required by the Customer. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, not exceeding 14 days of the Company giving it notice that the Goods are ready for collection.
- i) If the Company is unable to deliver the Goods because of actions or circumstances under the control of the Customer, then the Company shall be entitled to place the Goods in storage until such times as delivery may be effected and the customer shall be liable for any expense associated with such storage.
- ii) The Company agrees to notify the Customer if it anticipates a delay in delivery for any reason whatsoever and the Customer shall be obliged to accept delayed delivery of products.
- iii) The Customer acknowledges that the Company will not be responsible for any loss or damage whatsoever caused by delay of Goods as a result of circumstances that are beyond the Company’s reasonable control.
- Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
- Any shortages, over deliveries and duplicated orders should be reported to the Company within 14 days of signed receipt to enable replacement or refund. Failing such notification, it shall be conclusively presumed as between the Company and the Customer that the equipment has been received in good condition and in every way satisfactory for the Customer’s purposes. The Company warrants to the Customer that the products shall be in good and merchantable condition at the point of dispatch to the Customer.
- The Customer agrees to immediately notify the Company in writing of any apparent defect in any of the products.
- i) The Customer agrees to set those Goods aside until inspected by the Company and not to otherwise deal with, use or attempt to use those Goods in any way.
- ii) The Customer accepts that the Company may only recognise claims in respect of defective design, materials or manufacture.
- iii) The Customer acknowledges that the Company is not bound to accept any claim for defective products made otherwise than strictly in accordance with 7.d.i for those claims at 7.d. ii.
- iv) If the Company accepts that any product is defective it will replace that product with the same product (or if the product is no longer available, with a similar product) at no cost to the Customer.
- v) If the Company is unable or unwilling to replace any product under 7.d.iv then it agrees to refund the price of that product to the Customer.
- vi) Any Goods replaced by the Company in accordance with 7.d.iv thereby becomes its property.
- vii) The Customer specifically acknowledges that the Company does not give any warranty as to the fitness, adequacy or suitability of any Goods to perform a specific task or function which may be required by the Customer (except those warranties as may not be excluded by law) and that in placing the order for the Goods the Customer has relied upon its own skill, experience and judgement in all respects.
- viii) The Customer agrees to reasonably assist the Company in relation to any claim which the Company sees fit to make on any third party.
- ix) The Customer agrees to reasonably assist the Company in relation to any claim which any party may make against the the Company.
- Delivery cost whether local or international, including local taxes or import / export charges are not included in the quote.
- i) Where the Company has agreed to arrange transport and/or shipping whether local or international then all costs associated with those arrangements will be charged to the customer on a “cost Plus 15%” basis.
- ii) The Customer is entitled to arrange all transport and shipping whether local and / or international without hindrance from the Company. The Company will provide adequate and appropriate equipment and manual labour at their workshop premises to facilitate the loading and unloading of the Goods on to the Customer arranged transport at no extra cost.
- If for any reason the Customer will not accept delivery of the equipment when ready for delivery, or the Company is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licenses or authorisations;
- i) Risk in the Goods will pass to the Customer (including for loss or damage caused by the Company’s negligence)
- ii) The Goods will be deemed to have been delivered
- iii) The Company may store the Goods until delivery whereupon the Customer will be liable for all related costs and expenses (including but without limitation to storage and insurance)
Where a sample of the Goods is shown to and inspected by the Customer, the parties hereto accept that such a sample is representative in nature and the bulk of the order may differ slightly as a result of the manufacturing process.
Any Samples provided to the Customer at the Customers location remain the property of the Company and shall be returned to Company on request or a set date agreed upon by both parties.
9. Return of unused Goods/Order Cancellation
- All Goods are sold on a firm sale basis, i.e. the Company will not take back any goods not required by or sold to the Customer, unless otherwise agreed, in which case the following terms apply;
- Any returns must be authorised by a representative of the Company before any credit will be given.
- Where the Company agrees to accept the return of goods that are not damaged, the Customer will be responsible for the cost of carriage and will ensure that they are carefully packaged to avoid any damage in transit. The company will not be obliged to accept any goods that are damaged in any way. The Company will only accept returns that appear in the Companies current Publication List.
- If the Customer refuses to accept delivery of an order or part thereof the Company is not obliged to accept return of the Goods and is still entitled to invoice the Customer for payment of that order.
- Credit of amounts due or paid in will only be given for goods that are in saleable condition.
- Where the Customer sees the need to cancel its order for any goods requested, it shall be the Customer’s duty to notify the Company in writing within reasonable time and it shall be at the Company’s discretion to accept the cancellation.
- Where the Company agrees to accept the return of those goods that have already left its premises and that are not damaged and/or used, the Customer will be responsible for the cost of carriage and will ensure that they are carefully packaged to avoid any damage in transit. The company will not be obliged to accept any goods that are damaged in any way.
- Once a quotation / purchase order has been accepted for custom build equipment, the Customer will agree to pay for any and all loss, damage and expense incurred by the Company as a result of Cancellation.
10. Packing and Carriage
In addition to sales prices, the Company may make a separate charge for outward delivery of its equipment. Those charges will be indicated / stated on either the Company’s quote and/or invoice unless otherwise agreed by both parties. The Company’s packing will be included in the sales price unless the customer requires custom made packing. In which case the packing price will be charged extra on the invoice unless otherwise agreed by both parties.
11. Limitation of Liability
- The Company shall not be liable for any/all loss or damage suffered by the Customer in excess of the contract price.
- Nothing contained in these Terms and Conditions shall be construed to limit or exclude the liability of the Company for death or personal injury as a result of the Companies’ negligence or that of its employees or agents.
- Any technical advice, recommendation or offer to supply goods is intended for use by persons having the skill and knowledge to decide the suitability of the goods for their application. The Customer acknowledges that selecting goods requires the Customer to use its own skill and judgment as to which of the Company’s goods meets the Customers requirements. The Company’s recommendations cannot be guaranteed because the conditions of use are beyond its control.
12. Intellectual Property Rights
- All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Company, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Company by the execution of appropriate instruments or the making of agreements with third parties.
- All designs, drawings, specifications, brochures, catalogues, websites, price lists, advertising material and computer software originating from the Company are the copyright and shall remain the property of the Company. They shall not to be copied, reproduced or divulged either directly or indirectly to any other person without the Company’s prior permission.
- The Customer acknowledges that it shall be liable for any loss or damage caused to or suffered by the Company for any breach of 12a or 12b.
- The Customer further acknowledges that the product information is accurate at the time it is printed.
13. Design, Build and Modifications
- Companies Design, Build and Modifications
- i) Where any piece of equipment is designed by the Company, the Company reserves the right to modify the design, method of build and/or the process for modification of any or all equipment sold by it without notice, and without incurring any obligation or liability to provide any equipment with such changed design or build or modification to equipment previously sold.
- Customer’s Design, Build and Modifications
- i) Where the Company builds and/or modifies equipment in accordance with the Customer’s drawings, plans specifications or other information, the Customer will defend, indemnify, release and hold harmless the Company from and against any and all claims by the Customer or any other natural or corporate person, such claims including but not limited to, claims for direct or indirect, special and/or consequential damages, loss of or damage to property at surface or sub-surface, destruction or economic loss of any kind including property rights, infringement of any patent, design copyright or trade name or mark, or other intellectual property right, death, injury or incapacitation arising, directly or indirectly, or in any manner connected with such equipment.
14. Force Majeure
The Company shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to Act of God, strikes, lockouts, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Company shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Company considers unreasonable, it may, without liability on its part, terminate the contract.
15. Relationship of Parties
Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.
16. Assignment and Sub-Contracting
The contract between the Customer and the Company for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Customer, without the prior written consent of the Company, such consent not to be unreasonably withheld.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
18. Foreign Trade Controls
- The Customer agrees to comply with all applicable laws and regulations regarding the purchase of the Companies equipment. This includes but is not limited to Export Controls, Import/Custom requirements, Economic Sanctions or use contrary to applicable laws.
- In the case of controlled goods being exported outside Australia, it is prohibited for the Customer to use and/or forward any Permit / Ausgel held by the Company where the Customer purchases the Company’s equipment.
If any term or provision of these Terms and Conditions is held invalid, illegal, or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.
20. Governing law and jurisdiction
- This Agreement shall be governed by and construed in accordance with the laws of Australia and the parties hereby submit to the exclusive jurisdiction of the Western Australian courts.
- Each party promises to the other that it will not commence proceedings in respect of any claim arising under, or in connection with these terms or the products until they have endeavoured to mutually resolve that dispute as between themselves or by reference to arbitration.