In these Terms and Conditions Nupac Industries Pty Ltd shall be called “Nupac” and the company or person ordering the goods shall be called “the Customer”. These Terms and Conditions together with any terms and conditions in Nupac’s list prices, quotations, correspondence or any other applicable literature shall govern the sale and purchase of the goods.
- THE QUOTATION
Nupac’s quotation is an invitation to treat and is valid for 30 days or such other period as specified therein. The Customer’s order in response to the quotation is subject to acceptance in writing by Nupac. Until such acceptance has been posted or delivered Nupac shall be under no obligation to supply the equipment and/or services referred to in its quotation.
- PRICE AND PAYMENT TERMS
3.1 Prices quoted apply only to the quantities and deliveries specified in Nupac’s quotation.
3.2 Nupac shall render an invoice to the Customer and the Customer shall (subject to the provisions of Clause 3.3 or the terms of any other agreement in writing between Nupac and the Customer) pay all amounts due pursuant to the invoice rendered nett cash prior to delivery ex Nupac’s works.
3.3 Where in its sole and absolute discretion Nupac has agreed in writing to allow this then the Customer shall pay all amounts due pursuant to the invoice rendered to it within thirty (30) days of the date of the invoice and at the offices of Nupac specified on the invoice or at such other address as Nupac may request in writing.
3.4 Where the contract sets out a method of payment by progress payments, Nupac shall provide an invoice to cover each payment due, and the Customer shall make payment within seven (7) days of the date of the invoice. The final payment will be required to be made prior to despatch of goods.
3.5 If the goods are to be exported out of Australia the terms are forty percent (40%) deposit with order, balance against an irrevocable and confirmed letter of credit.
3.6 Prices are quoted uncrated ex the factory at the point of origin unless otherwise stated. Delivery costs, if any, incurred by Nupac shall, unless otherwise agreed, be in addition to the purchase price, and shall be charged and payable in the same time and manner as the purchase price hereunder.
3.7 Nupac reserves the right at any time to make adjustments to prices to reflect increases in costs for all or any of labour, materials, transport, taxes, and in relation to any changes in currency exchange rates or duty which have the effect of increasing Nupac’s costs in any manner in relation to the goods the subject of the order.
3.8 All prices quoted are exclusive of any tax, duty or any other levies unless stated in quotation. Goods and Services Tax will be charged, where applicable, in accordance with the provisions of the Commonwealth Goods & Services Tax Act at the prevailing rate.
3.9 In the event of any payment not being made when due, Nupac reserves the right without prejudice to its other rights to suspend further work or delivery until such time as payment, plus interest if charged, shall be made.
3.10 The purchase price for the goods shall be increased by an amount equal to 1.5% thereof in respect of each period of thirty (30) days or part thereof after the date upon which the purchase price is payable until payment in full of the purchase price is made to Nupac.
3.11 Where a Customer is indebted to Nupac in respect of more than one (1) invoice any payments made shall be allocated to the oldest account due for payment.
3.12 Where an order relates to custom-designed goods then Nupac reserves the right to increase the purchase price in respect of changes to the agreed specifications or the agreed programme of manufacture and delivery howsoever caused.
4.1 The quoted delivery period shall commence to run from the date of Nupac’s written acceptance of the order or from the date of receipt of the payment (if any) due with the order (whichever is the later date).
4.2 Where the contract calls for Nupac to deliver the goods, the choice of carrier and method of transportation remains with Nupac. Should the Customer require different arrangements, the Customer shall accept responsibility for all arrangements including responsibility for payment of such transportation.
4.3 Nupac reserves the right to make deliveries of orders in instalments and the Customer shall pay for each instalment in accordance with the provisions of Clause 3.
4.4 Where Nupac has indicated a delivery time to the Customer, Nupac will use all reasonable endeavours to effect the delivery within the indicated period. However late delivery or non-delivery by the due date due to circumstances beyond Nupac’s control shall not be regarded as a breach of contract by Nupac, nor shall Nupac be liable for any loss or damage howsoever arising through late delivery or non-delivery.
4.5 If the Customer has not fulfilled the obligations incumbent upon the Customer, or the Customer has in any way delayed delivery, (for example only, by additions or alterations to the specifications) Nupac is entitled to extend the time of delivery by a period dictated by the circumstances or to cancel the sales contract.
4.6 Where in Nupac’s view there is a delay in Nupac’s ability to deliver the goods such delay being due to strikes, lock-outs, work breakdowns, delays in transit, shortage of raw materials, government regulations or requirements or any other cause whatsoever (whether or not similar to these abovementioned beyond Nupac’s control) Nupac reserves the right to completely or in part cancel the sales contract after written notice to the Customer to that effect.
4.7 Where Nupac does agree to deliver the goods Nupac will deliver the goods to the Customer’s address specified on the order or subject to Nupac’s agreement to such other address as may be notified in writing by the Customer to Nupac.
- DRAWINGS, DEMONSTRATIONS AND PRODUCT TRIALS
5.1 General layout drawings, explanatory and illustrated literature, shipping specification and/or any other printed matter submitted for descriptive or explanatory purposes with Nupac’s quotation are approximate only and shall not be construed as being exact in dimensions, detailed specification or otherwise until Nupac’s formal acceptance of order.
5.2 Quotations, drawings and specifications supplied by Nupac remain its property and are to be treated as confidential and are returnable to Nupac on demand. Copyright in all such drawings and specifications is reserved to Nupac. Under no circumstances shall these be communicated to competitors or be utilised in any way against Nupac’s interests.
5.3 Where Nupac carries out a demonstration or test of the goods the cost of materials, freight, labour and all other associated costs shall be to the Customer’s account.
- PASSING OF PROPERTY AND RISK
6.1 The goods shall remain the sole and exclusive property of Nupac until all purchase moneys have been paid in full, whereupon the property in the goods shall pass to the Customer. Payment shall be deemed not to have been completed until every cheque or negotiable instrument given on account has been cleared by the Customer’s bank.
6.2 If the Customer on-sells any of the goods as a single unit or as part of a system or sub-system the Customer shall hold the proceeds of any such sale on trust for Nupac to the extent of any purchase price outstanding to Nupac.
6.3 If the Customer shall fail to pay for the goods in full by the due date for payment Nupac is irrevocably authorised at any time thereafter to enter upon any premises where the goods or part of the goods are situated or where Nupac believes the goods to be situated without notice and to take possession of the goods or any part thereof and to remove same if so desired and to use the Customer’s name in exercising such right. The goods and each part thereof shall be and be deemed to be a chattel notwithstanding being fixed to any premises.
6.4 Notwithstanding possession of the goods remaining with Nupac until payment in full, risk of loss, damage or deterioration shall pass to the Customer upon despatch of the goods from Nupac’s premises.
- WARRANTY AND LIABILITY
7.1 Subject to the terms and conditions set out herein Nupac warrants that the goods sold shall be free from defect in material and workmanship for a period of six (6) months (working single eight (8) hour shifts) from the date of delivery of the goods to the Customer and provided that:
7.1.1 The goods have been installed and/or commissioned by Nupac, used under normal operating conditions, and serviced and maintained with due care and according to generally accepted practices, or according to instructions given by Nupac;
7.1.2 The goods have not been repaired, altered or neglected, or in Nupac’s opinion used in any way for any purpose for which they were not intended;
7.1.3 The goods have not been damaged in transit, or damaged by fire, storm, tempest, water or any other accidental damage.
7.2 The Customer shall notify Nupac in writing of any defect, suspected defect or alleged defect in the goods within forty eight (48) hours of becoming aware of a defect and shall take such action as Nupac directs to limit the damage and/or place the goods in a position for Nupac to be able to undertake the necessary work. Should Nupac require the return of the goods to its or any other address, this shall be undertaken by the Customer who will be responsible for all insurance, freight and transport costs.
7.3 Nupac will not be responsible for goods damaged in transit.
7.4 The warranty excludes:
(a) the cost of labour for removing and replacing the faulty goods;
(b) proprietary items supplied by other manufacturers, those being covered by such warranty as those manufacturers extend.
7.5 Nupac shall not be under any liability to the Customer in respect of any loss or damage (including consequential loss or damage) howsoever caused whether by negligence, breach of contract or howsoever otherwise which is suffered or incurred or which may arise directly or indirectly in respect of the goods or the failure or omission on the part of Nupac to comply with its obligations under these terms and conditions.
7.6 Any representations made by Nupac which have not been stated expressly in these terms and conditions or upon any descriptions or illustrations or specifications contained in any document including any catalogues or publicity material published by Nupac are specifically excluded and the Customer warrants that it has not relied upon any such representations.
7.7 Except as expressly provided to the contrary in these terms and conditions all terms, conditions, warranties, undertakings, inducements or representations whether express, implied or otherwise relating in any way to the goods supplied or to these terms and conditions are excluded to the extent permitted by the Trade Practices Act 1974 and the Fair Trading Act 1985 and any other like or equivalent legislation.
7.8 Where any Act of Parliament implies in these terms and conditions any term, condition or warranty and that Act avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such term, condition or warranty such term, condition or warranty shall be deemed to be included in these terms and conditions. However, the liability of Nupac for any breach of such term, condition or warranty or any liability of Nupac under the terms of this warranty howsoever occasioned shall be limited at the option of Nupac to any one (1) or more of the following:
(a) The replacement of the goods or supply of equivalent goods;
(b) The repair of the goods;
(c) The payment of the costs of replacing the goods or of acquiring equivalent goods; or
(d) The payment of the costs of having the goods repaired.
- PATENTS AND INDUSTRIAL PROPERTY
8.1 Where the Customer or any person on the Customer’s behalf requires Nupac to produce any goods to the Customer’s design or specification Nupac accepts no responsibility with respect to infringement of letters of patent, registered design, copyright or any other industrial or intellectual property rights. The Customer shall indemnify Nupac in respect of all or any liability which Nupac might incur as a result of or in any manner connected with the manufacture or supply of such goods.
8.2 All design, manufacturing, patent and trade mark rights relating to the goods offered or supplied shall remain Nupac’s absolute intellectual property and Nupac designs, drawings and concepts may not be reproduced without Nupac’s written consent. The Customer may not without Nupac’s previous written consent copy or enable others to copy the goods or any part thereof supplied by Nupac.
- DELIVERY, INSTALLATION AND COMMISSIONING
Unless otherwise agreed upon in writing it is the Customer’s responsibility to have the goods installed. It is the Customer’s responsibility to provide adequate access for delivery of the goods. Where Nupac agrees to install and/or commission goods then the Customer shall supply suitable site access and possession and reasonable storage and accommodation. Should any delays occur in the installation and/or commissioning for reasons not being the fault of Nupac then the Customer shall pay or reimburse to Nupac all costs occasioned by such delays including all additional fees and accommodation. The Customer shall be deemed to warrant to Nupac the correctness and suitability of the site for the goods including the formulations and structure of the same. The Customer accepts all liability for and shall insure in the joint names of the Customer and Nupac against all loss or damage to any person or property arising out of the installation and/or commissioning of the goods and shall indemnify Nupac against the same.
- SAFETY REQUIREMENTS
10.1 The Customer shall be responsible for the cost of the installation of any safety and/or guarding equipment to be installed on the goods other than that shown to the Customer as part of the specifications of the goods in any quotation given by Nupac.
10.2 To the extent that any guarding safety railing or other safety modification to the goods is required by law or agreed upon by Nupac to be installed other than that as displayed to the Customer by Nupac the cost of the same shall be borne by the Customer.
11.1 Unless otherwise agreed to in writing by Nupac these terms and conditions of sale shall override any terms and conditions stipulated, incorporated or referred to by the Customer in its order or negotiations.
11.2 Cancellation of an order by the Customer will not be accepted except with the prior written consent of Nupac which consent Nupac may withhold at its complete and absolute discretion. An order once placed by the Customer shall be irrevocable on the part of the Customer.
11.3 The above terms shall be construed, enforced and performed in accordance with the laws of the State of Victoria, Australia, and the Courts of the State of Victoria shall have the sole jurisdiction in relation to any dispute arising out of or connected therewith in any manner whatsoever.