Schmalz Australia Pty. Ltd. A.B.N. 47 005 126 876
Ph: (03) 9215 8800
25 Turbo Drive, Bayswater, Victoria, 3153, Australia
GENERAL TERMS AND CONDITIONS OF SALE
Last revised May 2020 and subject to change without notice
1. Quotations are subject to confirmation on receipt of your order
2. An order once accepted by us may not be cancelled or altered except upon terms and conditions satisfactory to us (which, in the case of cancellations, may include payment of a cancellation fee, which includes all expenses incurred by way of labour, materials, services, overhead expenses, fees, duties, taxes and loss of profit).
3. An order placed by the purchaser shall, when accepted by us, give a rise to a binding contract which shall include all the terms of conditions set out herein and no variation of the terms of the contract shall be binding upon us unless in writing and signed by an authorised officer of our Company.
4. These terms apply to every sales contract and sale of goods or services between Schmalz Australia Pty Ltd and the customer and includes all goods specified in our quote and / or purchase order acceptance and / or invoice issued by us. Any order deviating from or inconsistent with these terms are expressly rejected by Schmalz Australia Pty Ltd.
4. Delivery times are quoted in good faith and as accurately as we are able to estimate but are not guaranteed.
5. The period quoted for delivery and completion commences after the receipt by us of all particulars, specifications, drawings, technical data, approvals, information affecting the execution of an order and payment of all monies due.
6. Delivery times quoted are subject to adjustment due to prior sale of equipment before receipt of order.
7. With regard to items quoted which are not of our manufacture, the times quoted are based on the manufacturers promised delivery to us, or upon our estimate of delivery time.
8. We will not accept liability for penalties, or damages (either direct or indirect) for failure to deliver within the time, or by the dates quoted, unless expressly agreed in writing and signed by an authorised officer of our Company. Notwithstanding the fact that we do so agree, in no event will we be liable for any delay or failure in delivery if such delay or failure is caused by any act, matter or thing beyond our control.
9. If the purchaser requests us to postpone delivery of any item and such request is accepted by us, or if the purchaser delays in accepting or fails to accept any item, then:
(a) The purchaser shall pay to and indemnify us from and against all cost charges and expenses of dismantling sorting preserving transporting and insuring that item and of any cranage, and the risk of any loss of or damage to that item shall be borne by the purchaser, and
(b) If we have given any condition or warranty that delivery of that item will be made by a specified time, then that condition or warranty shall become void.
10. The Purchaser shall inspect the goods immediately upon delivery and/or installation by us and shall within seven days of delivery and/or installation by us give notice in writing of any matter or thing by reason whereof the purchaser may allege that the goods are not in accordance with the contract. In case of failure to give such notice, the goods delivered and/or installed by us shall be deemed to be in all respects in accordance with the contract.
11. The price quoted is subject to withdrawal by us at any time prior to our acceptance of order.
12. Prices quoted are subject to our rise and fall provisions. The base date being the date of the quotation.
13. All variations in duty and exchange rates or additional taxes or levies to those applicable shall be paid by the purchaser.
14. Unless we agree otherwise the price specified does not include the cost of transport, unloading, installation and commissioning.
15. G.S.T. if applicable is additional to the price.
16. Payment by Visa / MasterCard / Bankcard is accepted, however, charges will apply.
17. Prices for installation and commissioning are quoted on the assumptions that:
a) 415V, 3 phase, 50 Hz, A.C. power is available at the site where the item is to be used, free and within thirty metres of the work location or site of the item. (This is for installation purposes only for running of power tools, drills, etc)
b) The area where the erection and installation work is to be carried out will be free of obstruction and accessible in normal working hours (which does not include weekends, public holidays or night time) during the period of such erection and installation.
c) Should site conditions or circumstances as detailed cause us to incur additional expenses, then these will be to you the purchaser’s account.
18. All quotations are subject to site visits, should the visit determine circumstances different to those expected or ‘reasonably’ expected, a variation in price may be required.
TERMS OF PAYMENT
19. Unless otherwise stated or agreed our terms of payment are net cash against invoice. The purchaser shall be required to pay interest on any overdue amounts against the agreed payment terms as follows: - after an elapsed period of seven days on the amount unpaid at a rate equal to the rate specified by the Penalty Interest Rate Act 1983 (Vic) as at the date of the default to be calculated on daily balances.
PROPERTY AND RISK
20. Risk in any Goods supplied shall pass to the purchaser upon delivery but title to any Goods shall not pass until all payments due have been credited to our bank account without reservation.
21. Notwitstanding that title does not pass to the purchaser until payment is received for the goods, the purchaser may sell the goods to a third party if such action is within its ordinary course of business. However, any such sale of the goods by the purchaser shall be effected as bailee for Schmalz Australia Pty Ltd and the proceeds of that sale will be held on trust for Schmalz Australia Pty Ltd.
PERSONAL PROPERTY SECURITIES ACT
22. The purchaser acknowledges:
a) that the Transactions (including each and every future transaction) contemplated herein gives rise to a Security Interest in the Goods as Collateral under and for the purposes of the PPS Act;
b) that the Supplier’s Security Interest in the Goods is effective and Attaches to the Goods immediately upon the Purchaser taking delivery of the Goods;
c) that the Supplier may register the Supplier’s Security Interest on the PPS Register and the Purchaser consents to such registration;
d) that for the purposes of the PPS Act, the Goods are not Consumer Property but are Commercial Property (class for the purposes of the PPS Act – Other Goods) and/or if appropriate Inventory.
23. The Purchaser hereby consents to the Supplier taking all steps the Supplier considers necessary or advisable to:
a) perfect, maintain continuous perfection, protect, record or register, amend, improve, remove or end the registration of the Supplier’s Security Interest in the Goods; and
b) better secure the Supplier’s Security Interest in respect of the Goods under the PPS Act.
24. The Purchaser must:
a) do everything including signing all documents and giving all consents to cause the Supplier’s Security Interest to Attach to the Goods as Collateral immediately upon the signing of these Terms and Conditions or otherwise within the timeframes as specified in the PPS Act (if any) and the Purchaser hereby appoints the Supplier as the Purchaser’s attorney for this purpose;
b) do everything including signing all documents and giving all consents to enable the Supplier to register the Supplier’s Security Interest within the time for so doing specified in the PPS Act and the Purchaser hereby appoints the Supplier as the Purchaser’s attorney for this purpose;
c) do everything including signing all documents and giving all consents to enable the Supplier to cure any defect in registration of the Supplier’s Security Interest and the Purchaser hereby appoints the Supplier as the Purchaser’s attorney of this purpose;
d) not raise any objection to or seek to set aside or have set aside the registration of the Supplier’s Security Interest unless and until the Purchaser has fully discharged its obligations under or in respect of the Supplier’s Security Interest and, generally, the Transactions contemplated herein;
e) not grant or cause or permit to be granted any further Security Interest in relation to the Goods as Collateral without the Supplier’s prior written consent;
f) not affix any or all of the Goods to any land unless its use so requires or the Supplier so consents on such terms and conditions as the Supplier may impose – it is expressly agreed that merely:
i) bolting the Goods to a premises; or
ii) hard-wiring power to the Goods;
shall not constitute affixing the Goods to land and the purchaser hereby agrees to be barred from any claim that the retention of title / security arrangements are ineffective on this basis;
g) do everything including signing all documents and giving all consents to enable the Supplier to enforce the Supplier’s Security Interest; and
h) the Purchaser hereby appoints the Supplier as the Purchaser’s attorney for the purposes of giving effect to the enforcement by the Supplier’s obligations herein of the Supplier’s Security Interest.
25. The Purchaser must immediately notify the Supplier upon the happening of any Insolvency Event.
26. The Purchaser acknowledges that:
a) the Supplier’s Security Interest in the Goods is a Purchase Money Security Interest within the meaning of the PPS Act;
b) if the Purchaser sells any Goods or Services the Supplier’s Security Interest in the Goods attaches to the Proceeds;
c) by accepting a quotation, providing the Supplier with a purchase order, making an order for supply of Goods or accepting a delivery of Goods from the Supplier, the Purchaser is adopting the Supplier’s Terms and Conditions for the purposes of the PPS Act; and
d) to the extent that Goods are installed in or affixed to other goods by the Purchaser, the Supplier’s Security Interest continues in the Accession.
For the purposes of this clause:
“Attaches” has the meaning given in section 19 of the PPS Act, and “Attached” and “Attachment” have the corresponding meanings.
“Collateral” has the meaning given in section 10 of the PPS Act and refers to the Goods, and includes, without limitation, any Accession thereto or Proceeds thereof.
“Supplier’s Security Interest” means the Security Interest in the Goods contemplated by these Terms and Conditions.
“Consumer Property” and “Commercial Property” have the meaning given in section 10 of the PPS Act.
“Insolvency Event” means any of the following events – a Statutory Demand issued under section 459E of the Corporations Act in respect of the Purchaser, an application to wind up the Purchaser whether on a voluntary or involuntary basis, a proposed resolution to wind up the Purchaser, a proposal to appoint an administrator to or to execute a Deed of Company Arrangement in respect of the Purchaser, an application for a Sequestration Order under Division 2 of the Bankruptcy Act against the Purchaser, or a presentation of a Debtors Petition under Division 3 of the Bankruptcy Act by the Purchaser.
“Inventory” has the meaning given in the PPS Act.
“PPS Act” means the Personal Property Securities Act 2009 (Cth).
“PPS Register” means the Personal Property Security Register established under the PPS Act.
“Proceeds” has the meaning given in the PPS Act.
“Register” means to register a Security Interest on the PPS Register and “Registration” has a corresponding meaning.
“Security Interest” has the meaning given in section 12 of the PPS Act.
“Transactions” includes all future supplies of Goods by the Company to the Purchaser.
ENFORCEMENT OF SECURITY INTEREST
If Chapter 4 of the PPS Act would otherwise apply to the enforcement of the Security Interest created under this Contract, the Purchaser agrees that the following provisions of the PPS Act will not apply:
27. section 95 (notice of removal of accession), to the extent that it requires the Supplier to give a notice to the Purchaser;
28. section 121(4) (enforcement of liquid assets – notice to Grantor);
29. section 130 (notice of disposal), to the extent that it requires the Supplier to give a notice to the Purchaser';
30. subsection 132(3)(d) (contents of statement of account after disposal);
31. subsection 132(4) (statement of account if no disposal);
32. section 135 (notice of retention);
33. section 142 (redemption of collateral); and
34. section 143 (reinstatement of security agreement).
NOTICES UNDER THE PPS ACT
The Supplier does not need to give the Purchaser any notice under the PPS Act (including a notice of a verification statement) unless the notice is required by the PPS Act and that requirement cannot be excluded.
SUPPLIER WARRANTY AND LIABILITY
35. We warrant that in the event of any defect in any item occurring or being discovered within 12 months from the date of delivery to the original purchaser as a result of faulty design, materials or workmanship attributable to us, then we shall repair or supply replacement part at our option, free of charge, provided however that this warranty only applies if:
a) neither the item nor the equipment of which that item forms part has been used on other than single shift operation, has been misused or overloaded or used for other then its intended purpose or used by an unauthorised or unqualified person or repaired by an unauthorised or unqualified person,
b) the purchaser has not been and is not in breach of these terms,
c) the item has been properly maintained,
d) unless otherwise agreed by us defective parts capable of delivery are returned to our works carriage paid,
e) the defect is not in design or specification specially stipulated or required by purchaser, and
f) the purchaser gives us notice of the defect as soon as he become aware of it,
g) should we agree to any rectification work on site this will only be performed free of charge during normal working hours.
h) items not manufactured by our or any related company shall only have the benefit of such warranty as Schmalz Australia Pty Ltd or any related company of Schmalz Australia Pty Ltd has from manufacturer of that item and then only to the extent that that warranty is honoured by that manufacture.
i) repaired or replaced parts will still be warranted for the balance of the original warranty period: no repair or replaced parts will cause the period to be extended. Such repair, replacement, or refund will satisfy all obligations under this warranty.
36. Photographs, illustrations, weights, dimensions and any other particulars given represent generally the relevant goods but are not binding and are subject to alteration without notice by the maker.
37. We will not accept liability for consequential losses, damage or any expenses whatsoever arising out of or in consequence of any fault or defects.
38. The purchaser agrees to release, hold harmless and indemnify Schmalz Australia Pty Ltd to the extent permitted by law from and against any liability whatsoever and howsoever arising (including, without limitations, from negligence or willful misconduct on the part of the company or any of its officers, employees or agents) in connection with the sale of the Goods by Schmalz Australia Pty Ltd or the use of the Goods by the purchaser.
39. The suitability of the purchaser’s runways, gantries, buildings, foundations, roof trusses and any other structures is the responsibility of the purchaser. Should it be found during or after installation that any damage has occurred due to the lack of suitability as stated above, it shall be the responsibility of the purchaser to bear all associated costs for rectification work, engineering or any other requirement for resolution.
40. It is the purchasers responsibility to ensure all relevant detectors (smoke, particle, ion, etc.) have been isolated during any Schmalz works on their site if required.
CONSUMER WARRANTY (IF APPLICABLE)
41. If the Purchaser is a Consumer as defined in Schedule 2 Chapter 1 Section 3 of the Competition and Consumer Act 2010 (Cth) (the “Act”) (a “Consumer”), these clauses 40 to 44 shall apply. The benefits under the warranty set out at 35 to 39 (the supplier warranty) above are provided in addition to any warranty or guarantee imposed by law and in particular the guarantees implied by the Act. In no way does this clause seek to exclude or limit any right or remedy a Consumer has in law. However, to the extent that it is permitted by law any warranties or guaranties are excluded if the Purchaser is not a Consumer.
42. Should the Purchaser or Consumer wish to make a warranty claim under the supplier warranty the Purchaser or Consumer is required to first notify the Supplier, within the warranty period defined above. Unless the supplier is otherwise required by law to do so, the Purchaser must arrange for and bear the cost of the return of the Goods to the Supplier.
43. If the Purchaser is a Consumer, the warranty contained in this clause is provided in addition to other rights and remedies the Purchaser may have as a Consumer. In these circumstances the Goods come with guarantees that cannot be excluded under the Australian Consumer Law. In these circumstances the Purchaser is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Purchaser who is a Consumer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure. All conditions and warranties implied by law or statute are hereby otherwise expressly excluded so far as legally possible. The Supplier is not otherwise liable for any direct, indirect or consequential loss, costs or damage howsoever arising or occurring, whether founded in tort, contract, and statute or otherwise to the extent permitted by law.
44. The purchaser shall at its cost obtain all governmental consents, approvals and licences required to be obtained by the purchaser for the formation of this agreement or its performance and the purchaser warrants to us that such approvals consents and licences shall be in existence and current at the required times
PLANS AND DESIGN
45. The purchaser shall not use any plans designs instructions specifications charts or other information provided by us other than for the specific purpose for which they were given by us.
46. Drawings, specifications and other documents, prepared by Schmalz Australia Pty Ltd are Instruments of Service for use solely with respect to the relevant project. This includes documents in electronic form. Schmalz Australia Pty Ltd shall be deemed the authors and owners of the Instruments of Service and shall retain all common law, statutory and other reserved rights, including copyrights. The Instruments of Service shall not be used by the owner for future additions or alterations to the relevant project or for other projects, without the prior written agreement of Schmalz Australia Pty Ltd. Any unauthorized use of the Instruments of Service shall be at the purchaser’s sole risk and without liability to Schmalz Australia Pty Ltd. (Instruments of service produced by Schmalz Australia Pty Ltd, include plans, specifications, drawings, opinions, reports, and calculations.)
CHANGES FROM THIS DOCUMENT
47. No variation from this document will be of any force or effect unless it is in writing and signed by Schmalz Australia Pty Ltd
HAZARDOUS LOCATIONS ASSESSMENT (Explosion – Hazardous Areas)
48. It is the sole responsibility of the purchaser to establish equipment required for hazardous or explosive locations. For details concerning location assessment, please contact Schmalz Australia Pty Ltd directly on the above number to discuss.
49. In the interpretation of these terms, the headings are inserted only as a matter of convenience and do not define limit or affect the interpretation hereof.
50. All personnel attending site are not construction union members. Schmalz Australia Pty Ltd advise that we shall not be negotiating with unions to any matters relating to the site or involving any Workplace Agreement. We advise that any lost time due to union activity shall result in further charges.
51. The Quotations do not make provisions for the supply of as-built drawings, or specially prepared manuals.
52. Unless stated above as included, Load Testing, if required, would be additional to the above price.
53. Confirmation on suitability of existing support structure to be provided by others. (Refer point 39.)
54. No Site Allowances, Inductions, or Special Payments have been allowed for, unless noted otherwise.
55. Steelwork to be supplied in our Standard Paint Finish (Zinc Primer with Enamel Finish) Unless advised and agreed in writing, any variation from our Standard Paint Finish will require additional charges to the above price.
56. Services to equipment, either air or electrical, to be supplied by yourselves via required isolators. (All onsite electrical wiring and connections is the responsibility of the customer)
57. During installation, a forklift and access equipment will need to be provided by yourselves, to be used by our qualified personnel.
58. Power Outlets (both 3 Phase and Single Phase) to be within 30 metres of the proposed work area. (This is for installation purposes only for running of power tools, drills, etc)
59. Warranty is valid for a period of 12 months for Single Shift Operations.
60. Crane prices are based on the following: Installing the crane with Chem-Anchors, Concrete min strength C20/25, Concrete with suitable thickness for crane system loads. If insufficient a footing and base bolt support may be required, which would be an additional cost.
61. These terms will be governed by, take effect and be construed in accordance with the laws in force in the State of Victoria, and the parties submit to the exclusive jurisdiction of the Courts of that State.
62. In these terms:
a) the words ‘you’ and ‘purchaser’ are used interchangeably;
b) the words ‘we’, ‘us’, ‘Company’ and ‘Supplier’ are used interchangeably and mean ‘Schmalz Australia Pty Ltd’;
c) ‘terms’ means these general terms and conditions of sale, which are intended to apply to all supplies of goods to the purchaser by us from time to time (now and in the future);
d) ‘goods’ means all goods supplied by us to the purchaser from time to time now and in the future; and
e) the words ‘goods and items’ are used interchangeably.