TERMS & CONDITIONS OF SALE & SERVICE – Queensland Calibrations Pty Ltd ABN 15 155 359 032
1 GENERAL
1.1 The Contract Documents apply to the provision of Services and the sale of Goods (as the case may be) by Queensland Calibrations to the Customer.
1.2 The Contract Documents cannot be varied, modified or substituted without the prior written consent of Queensland Calibrations.
1.3 The Contract Documents apply despite any other terms and conditions that are proffered by the Customer.
1.4 The Quotation will prevail over these Terms to the extent of any inconsistency.
1.5 The Customer agrees that Queensland Calibrations may, at its discretion, subcontract the whole or any part of the Services provided by it.
1.6 The Customer agrees to be bound by these Terms from the time it requests a Quotation from Queensland Calibrations for the Services or the purchase of the Goods or otherwise engages Queensland Calibrations after the receipt of the Terms.
2 QUOTATIONS
2.1 Prior to providing the Services or the sale of the Goods, Queensland Calibrations may provide the Customer with a Quotation.
2.2 The Quotation is:
2.2.1 valid for a period of thirty (30) days from its date or such other period (if any) stated in the Quotation;
2.2.2 an invitation only to the Customer to place an order for the Services or the Goods based on that Quotation;
2.2.3 subject to the Customer accepting the Contract Documents; and
2.2.4 subject to any variations provided for in clause 3.2.
2.3 Queensland Calibrations is not required to commence work on any Equipment or supply any Goods to the Customer, until the Customer has accepted the Quotation and Queensland Calibrations has received notice of the Customer’s acceptance within the period specified in clause 2.2.1.
2.4 To assist Queensland Calibrations in determining the required Services, the Customer agrees to clearly label the outside of packaging when sending Equipment to Queensland Calibrations.
3 PRICING & PAYMENT
3.1 Price
The price payable for the Services or the Goods is the price agreed by the parties in writing or the price stated in the Quotation and is subject to:
3.1.1 any variation in accordance with clause 3.2;
3.1.2 if there is a variation in accordance with clause 3.2 and the Customer does not agree to the revised Quotation, the Customer agrees that it is responsible for paying an amount up to the value of the then current Quotation on the basis of the time spent by Queensland Calibrations on performing the Services to date; and
3.1.3 if a Quotation for a Repair Service is rejected by the Customer, the Customer agrees that it is responsible for paying the Inspection Fee quoted.
3.2 Variation
Any estimate for the Services provided by Queensland Calibrations is not final and may be subject to change should the Goods be found to have additional issues or repairs that are unforeseen at the time of providing the estimate.
Any of the following events are deemed to be variations:
3.2.1 the Customer requests any changes, additions or variations to the Services or Goods as outlined in the Quotation or as agreed by the parties in writing;
3.2.2 there is a change, addition, variation of the Equipment or the Goods as outlined in the Quotation or as agreed by the parties in writing;
3.2.3 Queensland Calibrations determines during a Calibration Service that the Equipment requires a Repair Service;
3.2.4 Queensland Calibrations determines during a Repair Service that the Equipment requires an additional Repair Service or replacement that was not identified in the Quotation or agreed by the parties;
3.2.5 Queensland Calibrations determines during a Calibration Service that the Equipment requires an adjustment required to bring the Equipment into specification other than a Minor Adjustment; or
3.3 If there is a variation pursuant to clause 3.2, Queensland Calibrations may:
3.3.1 reject the request for the variation;
3.3.2 increase the price to account for the variation; or
3.3.3 provide a revised Quotation for the Services or the supply of the Goods.
3.4 Payment
3.4.1 If credit is extended by Queensland Calibrations to the Customer, then payment for the Services or the Goods must be made by the Customer to Queensland Calibrations in accordance with the terms of the Customer’s credit account, and otherwise within 30 days from end of the invoice month.
3.4.2 If the Customer does not have a credit account, payment for the Services and the Goods must be made by the Customer prior to delivery or collection of the Equipment or the Goods unless Queensland Calibrations shall have made some other arrangement with the Customer. This payment must include payment for any variations.
3.4.3 Although Queensland Calibrations endeavour to absorb some bank fees some transactions may incur a surcharge payable by the Customer. Queensland Calibrations agrees to notify the Customer at the time of payment and the Customer shall have the option to choose another preferred payment method. The surcharge percentage shall be determined by Queensland Calibrations and may vary according to the card/payment type. In accordance with the ‘Competition and Consumer Amendment (Payment Surcharges) Act 2016’ Queensland Calibrations acknowledges that the Customer cannot be surcharged in excess of the merchant’s cost of acceptance for that card/payment system.
3.4.4 If any amount is due and unpaid, Queensland Calibrations reserves the right at its discretion to claim reasonable interest for the period from the due date until the date of payment in full. The Customer agrees to pay interest on the overdue amount at the prevailing overdraft interest rate of Westpac Banking Corporation; or a rate of 2% calculated monthly (or part thereof) until payment in full is received for the Services or the Goods.
3.4.5 The Customer is liable for and agrees to pay all additional costs and expenses Queensland Calibrations may incur, including without limitation all legal, administrative and collection costs to recover unpaid amounts.
3.4.6 Queensland Calibrations may withdraw credit facilities to the Customer at any time without notice. Without limiting Queensland Calibrations’ rights to withdraw credit, Queensland Calibrations reserves the right to stop supply & place the account on hold until the account is returned to the agreed trading terms, and Queensland Calibrations agrees to recommence supply.
3.4.7 No payment shall be deemed to have been received until Queensland Calibrations has received cleared funds.
4 GST
4.1 All moneys payable by the Customer to Queensland Calibrations under any of the Contract Documents are exclusive of GST, unless otherwise expressly agreed in writing.
4.2 In addition to any consideration payable by the Customer, the Customer must pay Queensland Calibrations an amount equal to the GST imposed on each taxable supply under the Contract Documents, at the same time as the consideration is payable.
4.3 Queensland Calibrations agrees to provide a tax invoice to the Customer.
5 DELIVERY & INSURANCE
5.1 The Equipment and the Goods are available for collection at the location specified in the Contract Documents or as agreed by the parties.
5.2 At the Customer’s request, Queensland Calibrations will arrange packing and delivery of the Equipment or the Goods to the Customer utilising the carrier nominated by the Customer on the Quotation. If a Queensland Calibrations carrier is nominated, packaging and delivery charges will be invoiced to the Customer by Queensland Calibrations.
5.3 If the Customer fails to take delivery in accordance with this clause the Customer agrees to pay Queensland Calibrations for all storage and handling charges and other consequential loss or damage arising from that delay.
5.4 Queensland Calibrations is not responsible to the Customer for any damage to or loss of the Equipment or the Goods whilst being delivered to or from the Customer or a third party subcontractor. It is the Customer’s responsibility to arrange insurance for the Goods and Equipment.
5.5 If there is any defect in the Equipment or the Goods upon delivery Queensland Calibrations must be notified by the Customer within 48 hours of delivery otherwise the Equipment or the Goods shall be deemed to have been delivered in good order and condition and in full compliance of these Terms.
6 REFUNDS, RETURNS & RESTOCKING
6.1 Queensland Calibrations handles returns and processes refunds in accordance with the Australian Consumer Protection Legislation.
6.2 The Customer acknowledges that it is required to contact Queensland Calibrations and prior arrangements must be made for any purchased Goods to be returned for any reason.
6.3 Queensland Calibrations may not normally provide refunds of purchased Goods where the Customer has:
6.3.1 changed its mind;
6.3.2 made a wrong selection; or
6.3.3 found the Goods cheaper elsewhere. If Queensland Calibrations, at its sole discretion, does accept return of Goods in this instance, a restocking fee of 15-25% of the order value may apply.
6.4 Goods returned for credit or refund shall only be accepted by Queensland Calibrations if:
6.4.1 they are returned in the original packaging;
6.4.2 in a new, unused condition; and
6.4.3 include all parts and instructions as originally delivered with proof of purchase.
6.5 The risk of any Returned Goods remains with the Customer until Queensland Calibrations receives the Returned Goods. Once Queensland Calibrations are able to confirm that the Returned Goods are:
6.5.1 faulty;
6.5.2 incorrect or defective;
6.5.3 and the fault did not arise through misuse, abnormal or negligent use or storage, Queensland Calibrations may:
6.6 credit or refund the cost of standard shipping and exchange the Returned Goods; or
6.7 offer a full credit or refund to the Customer including the cost of standard shipping.
6.8 If the Customer returns Goods where no fault is found; or
6.8.1 the Returned Goods have been damaged or similar circumstances, the Returned Goods shall be sent back to the Customer and the Customer shall be liable for all fees in connection with inspection, testing and assessment of the Returned Goods as well as any shipping and associated costs.
7 WARRANTIES
7.1 All products and Goods supplied by Queensland Calibrations come with manufacturer warranties to the original owner against defects and in accordance with Australian Consumer Law when the Goods are used for:
7.1.1 the purpose intended;
7.1.2 under normal conditions; and
7.1.3 do not apply to damages caused by typical wear and tear over time;
7.1.4 use, accident, unreasonable use, improper care, modifications, alterations; or
7.1.5 negligence.
7.2 Some parts that are subject to normal wear and tear may require infrequent or regular replacement, depending on frequency of use and are not covered under any warranty terms.
7.3 The Customer may contact Queensland Calibrations if uncertain at any time regarding what may be covered under its warranty.
8 LIABILITY
8.1 To the maximum extent permitted by law, Queensland Calibrations makes no warranties or representation and the Customer releases Queensland Calibrations from all liability for any loss, claim, damage or injury suffered in connection with the supply of the Goods and provision of the Services.
8.2 Queensland Calibrations’ liability to the Customer in respect of any non-excludable warranty or condition shall be limited to the maximum extent possible to either of the following (as Queensland Calibrations may decide):
8.2.1 In relation to the Supply of Goods:
a. the replacement of the Goods or the supply of equivalent Goods;
b. the repair of the Goods;
c. the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
d. the payment of the cost of having the Goods repaired.
8.2.2 In relation to the provision of the Services:
a. supplying the Services again; or
b. payment of the cost of having the Services supplied again.
8.3 Unless otherwise stated in the Contract Documents, all express and implied warranties, guarantees and conditions under statute, general law or trade usage, as to merchantability, description, quality, suitability or fitness of the Equipment or the Goods for any purpose, or as to design, assembly, installation, materials, workmanship or otherwise are expressly excluded.
8.4 The Customer acknowledges that it has assessed the suitability of the Goods and/or the Equipment (after the Services have been completed) and is satisfied that they are suitable for its purposes and will use them at their own risk.
8.5 Subject to any non-excludable warranty or condition and to the maximum extent permitted by law, Queensland Calibrations’ maximum aggregate liability for all claims relating to the Contract Documents or their subject matter, whether in contract, tort (including negligence), in equity, under statute, under an indemnity, based on fundamental breach or breach of a fundamental term or on any other basis, is limited to an amount equal to the purchase price paid by the Customer under the Contract Documents.
8.6 Queensland Calibrations is not liable to the Customer in any circumstance for indirect, economic or consequential loss suffered by the Customer.
8.7 The Customer acknowledges and agrees that it has not relied upon any statement or representation by Queensland Calibrations in respect of the purpose for which the Customer desires to use the Equipment or the Goods and that Queensland Calibrations is not responsible or liable for any failure or unsuitability of the Equipment or the Goods to perform the purposes required by the Customer.
8.8 The Customer is entirely responsible for ensuring that its Equipment is calibrated and serviced at appropriate frequency regardless of any estimates provided by Queensland Calibrations.
9 DEFAULT
9.1 If the Customer:
9.1.1 defaults in making any payment;
9.1.2 fails to comply with the Contract Documents;
9.1.3 repudiates any of the Contract Documents or any contract it has with Queensland Calibrations;
9.1.4 dies;
9.1.5 stops payment;
9.1.6 calls a meeting of creditors, becomes insolvent or subject to the bankruptcy laws; or
9.1.7 being a company, enters into any scheme of arrangement with creditors, or receivers and managers or administrators are appointed or has any winding up petition presented against it, Queensland Calibrations may at its sole discretion and option at any time prior to payment in full for the Services or the Goods:
9.1.8 suspend or cancel the Contract Documents;
9.1.9 require payment in cash before delivery of the Equipment or the Goods (irrespective of any terms of payment previously specified);
9.1.10 maintain, take over or repossess the Goods and dispose of the Goods without prejudice to any claim Queensland Calibrations may have for damages for any loss resulting from any re sale or disposal of the Goods;
9.1.11 exercise all rights to the Goods as if it were the owner.
This clause shall apply notwithstanding any waiver by Queensland Calibrations of any default or failure by the Customer to comply with these Terms and without prejudice to its other rights under any of the Contract Documents.
9.2 If the Customer is in default of the Contract Documents, the Customer consents to Queensland Calibrations’ servants and agents entering the Customer’s premises, or any other premises where the Goods are located, using such force as is necessary in order to repossess the Goods. The Customer must provide Queensland Calibrations with all reasonable assistance in order to locate and collect the Goods. If the Goods are not available for collection at the nominated time and or place the Customer will be liable for any additional costs Queensland Calibrations incur. Queensland Calibrations will not be liable for any damage to property caused by any person in collecting the Goods.
10 RETENTION OF TITLE
At all times the title in the Goods remains with Queensland Calibrations (irrespective of delivery of the Goods to the Customer) until the Customer has paid the full invoiced price and any other payments due to Queensland Calibrations in respect of the Goods arising out of the Contract Documents.
11 SECURITY INTEREST
11.1 Expressions used in this clause 11 and in the Personal Property Securities Act 2009 (Cth) (“PPSA”) have the same meanings as when used in the PPSA.
11.2 If Queensland Calibrations already has a prior registered security interest in the Goods supplied, that security interest continues in the Goods. The Customer acknowledges that the Contract Documents create a security interest in favour of Queensland Calibrations for the purposes of the PPSA, and:
11.2.1 Queensland Calibrations may register this security interest with the Registrar of Personal Property Securities pursuant to the PPSA in order to perfect its security interest;
11.2.2 the Customer agrees the security interest granted to Queensland Calibrations pursuant to the Contract Documents may be a purchase money
security interest for the purpose of the PPSA;
11.2.3 if requested, the Customer must pay or reimburse the costs of registering the security interest, and provide Queensland Calibrations with all assistance reasonably required in order for Queensland Calibrations to register the security interest; and
11.2.4 for the purpose of section 115 of the PPSA, the following sections of the Act do not apply: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4) and 135.
11.3 The Customer authorises Queensland Calibrations to search the Personal Property Securities Register at any time for any information about the Customer.
11.4 The Customer waives its right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to any security interest granted under the Contract Documents in relation to commercial property.
12 CUSTOMER COVENANTS
In relation to the sale of Goods, the Customer agrees with Queensland Calibrations that until it has paid the full invoice price and any other payments due to Queensland Calibrations in respect of the Goods:
12.1 it has no right, title, estate or interest in the Goods;
12.2 it will not remove any sticker or other identification from the Goods giving notice of Queensland Calibrations ownership of the Goods;
12.3 purport to grant any encumbrance over or in connection with the Goods or otherwise purport to offer or use the Goods as security. For the purpose of these Terms, encumbrance means any mortgage, lien, charge, bill of sale, option, title retention, pledge, claim, restriction, condition, overriding interest, security interest pursuant to the PPSA or other encumbrance;
12.4 it must not ‘on-hire’ or part with possession of the Goods unless it receives the prior written consent of Queensland Calibrations. Queensland Calibrations’ consent may be withheld in its absolute discretion; and
12.5 it must collect as agent for Queensland Calibrations the price payable for the Goods from any person who the Goods are sold or delivered.
13 GENERAL
13.1 These Terms are governed by and construed in accordance with the laws of Queensland
13.2 The parties agree that a construction of the Contract Documents that results in all provisions being enforceable is to be preferred to any other construction. If, despite the application of this clause, a provision of the Contract Documents are illegal or unenforceable:
13.2.1 if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words are omitted; and
13.2.2 in any other case, the whole provision is omitted,
13.2.3 and the remainder of the Contract Documents continue in force.
13.3 A failure, delay, relaxation or indulgence on the part of any party in exercising any power or right conferred upon that party under the Contract Documents does not operate as a waiver of the power or right. A single or partial exercise of any power or right does not preclude any other or future exercise of that, or any other, power or right under the Contract Documents.
13.4 The Contract Documents constitute the whole agreement between the parties. No warranties, representations, guarantees or other terms or conditions of any nature not contained and recorded in the Contract Documents have any force or effect.
13.5 The Customer must not assign any of its rights under the Contract Documents. Queensland Calibrations may assign the Contract Documents on 14 days notice to the Customer.
13.6 Queensland Calibrations may vary these Terms at any time. If the Customer continues to engage Queensland Calibrations or order Goods from Queensland Calibrations, after that time, the Customer is deemed to have accepted the revised terms.
13.7 In the Contract Documents, unless the contrary intention appears:
13.7.1 the singular includes the plural and vice versa;
13.7.2 a reference to an individual or person includes a partnership, body corporate, government authority or agency and vice versa;
13.7.3 a reference to a party includes that party’s executors, administrators, successors, substitutes and permitted assigns;
13.7.4 words importing one gender include other genders;
13.7.5 other grammatical forms of defined words or expressions have corresponding meanings;
13.7.6 a reference to a document, equipment or instrument, including the Contract Documents, includes a reference to that document, equipment or instrument as novated, altered or replaced from time to time;
13.7.7 a covenant, undertaking, representation, warranty, indemnity or agreement made or given by:
a. two or more parties; or
b. a party comprised of 2 or more persons,
is made or given and binds those parties or persons jointly and severally;
13.7.8 if an act must be done on a specified day that is not a business day, the act must be done instead on the next business day;
13.7.9 if an act required to be done under the Contract Documents on a specified day is done after 5.00pm on that day in the time zone in which the act is performed, it is taken to be done on the following day;
13.7.10 all monetary amounts are in Australian dollars; and
13.7.11 headings and the provision of a table of contents are for convenience
only and do not affect the interpretation of the Contract Documents.
14 DEFINITIONS
14.1 “Calibration Services” means the process of verification of instrument accuracy to the agreed specification by comparison with a reference standard and/or manufacturer’s recommendation and, if necessary, any Minor Adjustment required to bring the instrument into specification;
14.2 “Contract Documents” means these Terms, the Quotation, the Credit Application and any other contract or agreement entered into between Queensland Calibrations and the Customer which the parties agree is subject to these Terms;
14.3 “Credit Application” means the credit application entered into between Queensland Calibrations and the Customer;
14.4 “Customer” means the entity acquiring the Services or Goods from Queensland Calibrations;
14.5 “Equipment” means the equipment, instruments on which the Services will be provided;
14.6 “Goods” means all goods, machinery, test and measurement instruments, electronic parts or components supplied by Queensland Calibrations;
14.7 “GST” has the same meaning as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended or replaced from time to time;
14.8 “Minor Adjustment” means any adjustment (and re-verification of affected parameters) performed during a Calibration Service where the cost of the adjustment and re-verification is less than 10% of the price stated in the Quotation for the Calibration Service;
14.9 “PPSA” means Personal Property Securities Act 2009 (Cth);
14.10 “Quotation” means any written or electronic quotation provided by Queensland Calibrations to the Customer covering the proposed provision of the Services or the Goods;
14.11 “Repair Services” means the repair services to be provided by Queensland Calibrations on the Customer’s Equipment;
14.12 “Inspection Fee” means the fee payable by the Customer to Queensland Calibrations for determining the current physical or operational condition of the Goods which is stated in the Quotation;
14.13 “Services” means the instrument sales, parts, maintenance, calibration services, and/or the repair services;
14.16 “Terms” means these Terms and Conditions for the provision of the Services and the Goods; and
14.17 “Queensland Calibrations” means Queensland Calibrations Pty Ltd (ACN 155 359 032).