The following expressions have these meanings in these Conditions unless the contrary intention appears.
“Business Day” means a day (not being a Saturday or Sunday) on which banks are open for general banking business in the State of Victoria.
“Credit Terms” means the Credit Terms published by Aegis. Aegis reserves the right to amend the Credit Terms at any time. Any such amendments shall be binding from the date Aegis has issued written notice of the applicable amendments.
“GST” means any tax including any additional tax imposed on the supply of or payment for Products or services which is imposed or assessed under A New Tax System (Products and Services Tax) Act 1999, and all related and auxiliary legislation.
“Aegis” means Aegis Pty Ltd ABN 39 004 513 606 of 200 Rooks Road, Vermont Victoria 3133.
“Aegis Warranty” means the 12 month warranty offered by Aegis to Purchasers (if any) that the Products used in normal service and in accordance with the manufacturers’ maintenance recommendations and safety warnings, and subject to condition 6.5 – Additional disclaimer below, are covered by a warranty against defects in workmanship and materials.
“Products” means products or services sold by Aegis to the Purchaser.
“Purchaser” means a person who purchases Products.
“Taxes” means taxes, levies, imposts, deductions, charges, withholdings and duties imposed by any authority (including, without limitation, stamp and transaction duties) (together with any related interest, penalties, fines and expenses in connection with them), except if imposed on the overall net income of Aegis.
2. CONDITIONS OF SALE
These Conditions are the conditions upon which Aegis will deal with and sell Products to a Purchaser insofar as these conditions have not been modified or varied by any other Agreement signed between the Purchaser and Aegis. Aegis may vary these Conditions from time to time. Any such amendments shall be binding on the Purchaser only from the date Aegis has issued written notice to the Purchaser of the applicable amendments. The placement of an order by the Purchaser will be deemed acceptance of these Conditions.
3. ORDERS AND DELIVERY
3.1 Placement of orders
The Purchaser must place orders for Products in accordance with any Aegis’ procedures notified to the Purchaser from time to time. Orders are binding on the Purchaser and may not be cancelled without Aegis’ written consent. The Purchaser agrees that each order it places is a representation by it that it is
solvent and able to pay its debts as and when they fall due.
3.2 Acceptance of orders
Orders for Products are subject to acceptance by Aegis. Aegis may accept or reject orders in whole or in part. Aegis may suspend or cancel delivery of Products or refuse to accept orders if the Purchaser is overdue in making a payment, has reached its credit limit, if any contract between Aegis has been
breached, expired or terminated or the Purchaser is or may, in Aegis’ opinion, become insolvent.
(1) All deliveries to pre-agreed locations will be in accordance with the rates set out in the delivery schedule of Aegis. Aegis reserves the right to change the rates at any time and the Purchaser shall be informed of any such changes.
(2) Aegis may deliver Products by instalments but if it fails to deliver a particular instalment by a date specified for delivery, the Purchaser is not entitled to cancel the order for the Products.
(3) Notwithstanding any other provision in these Conditions, Aegis will not be liable to the Purchaser for any failure or delay in supplying Products.
3.4 Claims for damage and short delivery
The Purchaser agrees to inspect the Products immediately on receipt. The Purchaser shall notify Aegis of any shortage or damage by annotating and signing the consignment note retained by the carrier, failing which the Purchaser shall not have any claim against Aegis.
The Purchaser may only return Products in accordance with any Aegis return policy notified to the Purchaser and otherwise with the prior written consent of Aegis, which consent it may withhold in its absolute discretion. Aegis will only credit returns if it receives Products in their original condition.
The Purchaser must pay the current prices for the Products, as notified by Aegis to the Purchaser, for the Products. Orders for Products which have not been delivered to the Purchaser before the effective date of a price change, (including freight and other charges included in Aegis’ invoice) will be filled at the new price.
4.2 Credit Terms
If Aegis provides credit to the Purchaser, the sale and payment for Products is subject to the Credit Terms attached to these Conditions.
To the extent that any supply made under these Conditions is a taxable supply, the GST-exclusive consideration otherwise payable for that supply is increased by an amount equal to that consideration multiplied by the rate at which GST is imposed in respect of the supply, and is payable at the same time by the Purchaser upon receipt of a valid tax invoice.
5. RESALE & SAFE PRACTICES
5.1 Recommended prices
Aegis may from time to time specify the recommended retail price for Products. The Purchaser is under no obligation to sell Products to its customers at the recommended retail price.
5.2 Inspection of Products prior to sale
The Purchaser must inspect and check the condition of Products prior to delivery to a customer and ensure they are in a safe and appropriate condition.
5.3 Information to customers
Prior to or at the time of delivery of any Products to a customer, the Purchaser must inform the customer of the correct operating and safety procedures for the Products, advise the customer to read relevant safety information and of the applicable Aegis Warranty (if any). The Purchaser must comply with any technical and instruction manuals supplied with the Products.
5.4 Safety warnings if the Purchaser is end user
The Purchaser shall ensure that it has inspected and checked that the Products have not been damaged during transportation or storage and that the Purchaser has read and understands the correct operating and safety procedures for the Products. The Purchaser must comply with any technical and instruction manuals supplied with the Products.
5.5 Product recall
Each of Aegis and the Purchaser must immediately notify the other in writing, on becoming aware of any circumstances which may require Products to be recalled (“Product Recall”). The Purchaser shall comply with Aegis’ recall strategy.
6. WARRANTIES AND PRODUCT LIABILITY
6.1 General limitation
(1) To the extent permitted by law, the warranties contained in the Aegis Warranty are in lieu of all other warranties, obligations or liabilities on the part of Aegis, either express or implied (including any implied warranty of merchantable quality or fitness for purpose) and all such warranties, obligations and liabilities on the part of Aegis are excluded.
(2) To the extent permitted by law, the liability of Aegis for a breach of a warranty or condition, either express or implied, is limited, at the option of Aegis, to the repair or replacement of the relevant Products, the supply of products equivalent to the Products, or the cost of repairing or replacing the Products or acquiring products equivalent to the Products.
6.2 Notification of Product Complaints
The Purchaser must immediately notify Aegis of any claim made by any person for any product liability, property damage or personal injury arising out of or in relation to the use of any Products (“Product Complaints”), provide any additional information that Aegis requires and fully cooperate in the defence of any such Product Complaints.
6.3 Conceding of Product Complaints
The Purchaser must not concede or admit any Product Complaints without the consent of Aegis.
6.4 Aegis indemnity
(1) Subject to these Conditions, Aegis indemnifies the Purchaser for all loss and damage arising out of any Product Complaints proved to be due to defects in design, workmanship or materials in Products, except to the extent that the loss and damage arises out of latent defects that ought to have been discovered by the Purchaser upon reasonable inspection of the Products following delivery to the Purchaser or its agents.
(2) The Purchaser is not entitled to an indemnity under this condition unless it has complied with all of its obligations under these Conditions.
6.4 Purchaser’s indemnity
The Purchaser indemnifies Aegis from all loss arising out of any Product Complaints to the extent that it relates to the Purchaser’s installation and servicing of Products, or the installation or servicing of Products by any distributor or customer of the Purchaser, or any warranty granted by the Purchaser or any distributor or customer which exceeds or alters the Aegis Warranty, or any act or omission (whether negligent or otherwise) of the Purchaser or any distributor or customer of the Purchaser.
6.5 Additional disclaimer
Without limiting conditions 6.1 to 6.4, Aegis expressly disclaims responsibility for any Products that are:
(1) damaged by accident;
(2) installed or used in breach of Aegis’ conditions of use or technical specifications as published from time to time.
7. LIMITATION OF LIABILITY
Aegis is not liable for any loss or damage:
(1) arising in any manner including by reason of the negligence of Aegis or any of their employees, agents or contractors;
(2) arising from any delay, failure or inability to supply or deliver Products; or
(3) including any consequential, indirect, exemplary, incidental, special or punitive damages based on any claims in connection with the Products, notwithstanding any terms in these Conditions, except to the extent that such liability cannot be excluded by law, in which case Aegis’ liability will be limited
in accordance with these Conditions.
8. PAYMENTS AND TAXES
8.1 Time and place of payment
The Purchaser must make payments to Aegis on the due date on the invoice in immediately available funds to the account of Aegis at the bank which Aegis designates by notice to the Purchaser. If payment is due on a day which is not a Business Day, then the due date for payment is the previous Business Day.
(1) Aegis may apply any payments made by or to the Purchaser or credits issued to the Purchaser as Aegis determines in its absolute discretion.
(2) To the extent permitted by law, the Purchaser must make payments under these Conditions without set-off or counterclaim and free and clear of any withholding or deduction for taxes.
(3) Where payment is made by cheque, payment will be taken to have been made only when the cheque is honoured.
9.1 Interest or overdue amounts
If the Purchaser does not pay the full amount of any invoice by the due date on the invoice or any other amount owing to Aegis by the date for payment, the Purchaser must pay interest on those amounts from the due date to the date of payment in full at the rate specified in the relevant contract between the
Purchaser and Aegis under which Aegis is supplying the Products, or, if there is no such specification, at the rate of 1.5 per cent per month. Interest will compound weekly and is payable at the end of each month.
9.2 No merger
If an amount is outstanding under these Conditions and becomes merged in a judgment or order the Purchaser must pay interest to Aegis on the amount as an independent obligation. This interest accrues from the date the outstanding amount becomes due for payment both before and after the judgment or order until it is paid in full, at a rate that is the higher of the rate payable under the judgment or order and the rate referred to in condition 9.1.
10. RETENTION OF TITLE
10.1 Title in Products
(1) Title to Products sold by Aegis to the Purchaser will pass to the Purchaser only when the full price in respect of all Products and all other sums payable by the Purchaser to Aegis are paid. By accepting the terms of these Conditions, the Purchaser expressly authorises and permits Aegis to enter upon the premises of the Purchaser to recover all Products for which payment is in arrears, at any time.
(2) If the Purchaser sells or disposes of Products to a Customer in the ordinary course of business before title to the Products has passed to the Purchaser, the Purchaser does so as agent and in a fiduciary capacity for Aegis, holds to proceeds as trustee for and must account to Aegis for the proceeds (including any proceeds from insurance claims).
(3) Where payment by the Purchaser is made by cheque, payment will be taken to have been made only when the cheque is honoured.
(4) Until title in the Products passes to the Purchaser in accordance with these Conditions, the Purchaser shall have no ownership or property rights in the Products and holds the Products as mere bailee for Aegis, must store them separately in a way that they can be identified as property of Aegis, and must not mortgage, encumber or dispose of them.
Unless otherwise stated, the risk with respect to Products passes to the Purchaser upon delivery of the Products to the Purchaser or its agent.
At its sole discretion Aegis may apply any credit balance in any currency in any account of the Purchaser with Aegis towards satisfaction of any amount then payable by the Purchaser under these Conditions. The Purchaser authorises Aegis in the name of the Purchaser or Aegis to do anything (including, without limitation, to execute any document) that is required for this purpose.
11.2 Force Majeure
Aegis will not be responsible or liable to the Purchaser for any failure to perform any of its obligations under these Conditions if the failure results from circumstances beyond its reasonable control (“Force Majeure Event”). Aegis will notify the Purchaser as soon as is practicable after the occurrence of a
Force Majeure Event, and the Purchaser will not be entitled to rescind or cancel any order outstanding at the date of the notice.
11.3 Proper Law
These Conditions are to be construed solely in accordance with and governed by the laws of the State of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts in and of the State of Victoria and the Commonwealth of Australia.