General Terms and Conditions of Sale
1) General
These Terms and Conditions of Sale apply to the sale of products or goods manufactured or supplied by ACS. Any order received by ACS is deemed to be an order incorporating these terms and conditions and no variation or cancellation of any of these Terms and Conditions shall be binding on ACS unless agreed to by ACS in writing.
2) Products
The expression “the products” wherever the context permits shall be construed both as reference to each product sold by ACS to the Buyer and also as a reference to all of the products sold by ACS to the Buyer.
3) Acceptance
Any quotation by ACS is not to be construed as an offer or obligation to sell and ACS reserves the right, at its option to accept or reject any orders received.
4) Prices
All prices charged/ quoted shall be ACS’ prices ruling at the date of dispatch. Verbal quotations are subject to written confirmation which will be given when requested. All products are sold and all prices are quoted FOB ex-works ACS unless otherwise specified. ACS reserves the right at any time to make reasonable adjustments to prices in relation to fluctuations in ACS’ cost of labour, material, goods or transport and also in relation to any changes in currency exchange rates or duty which affect ACS’ cost of goods.
5) Delivery
ACS shall use its best endeavours to deliver the products to the Buyer on or before the estimated delivery date but ACS is under no liability whatsoever for any failure or delay in the delivery of the products.
6) Terms of Payment
To a registered business, fifty (50) percent payment with order. All other Buyers, full payment with order. Balance thirty days from date of invoice unless otherwise expressly agreed to in writing. ACS reserves the right to deliver and invoice any products comprising the whole or part of any order. Failure of ACS to deliver any part of an order shall not entitle the Buyer to repudiate the contract.
7) Returns Policy
Product returns will not be accepted unless authorized by ACS. Products returned may attract a 10% restocking fee.
8) Limitation of Liability
ACS has no liability to the Buyer or to any third party for any loss or damages of any kind whatsoever including without limitation loss of profit or consequential loss caused by any act, negligent or otherwise or omission by ACS its servants or agents or any other persons in any way related to or arising out of the supply or non-supply or performance or non-performance of anything or any service provided for or contemplated by or in pursuance of this Agreement.
9) Guarantee
For products not manufactured by ACS, the Buyer acknowledges that ACS passes on to the Buyer only the Guarantee (if any) delivered with the products.
For products manufactured by ACS, ACS gives the guarantee in terms of the written guarantee document (if any) delivered with the products.
10) Patents
To the best of ACS’ knowledge products sold to the Buyer will not infringe any patent, trade mark, registered design or copyright of any third party but ACS shall in no circumstances be liable to the Buyer in respect of any such infringement constituted by the sale or use of the products.
11) Performance and Representation
Any figures or estimates given for performance of products are based upon ACS’ experience and are such as ACS would expect to obtain on test. But ACS will only accept liability for failure to obtain the figures or estimates given when such figures or estimates are guaranteed in writing within specified margins.
The Buyer acknowledges that neither ACS nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in the contract whether as to the fitness of the products for any particular purpose or any other matter.
12) Title and Property in Products
Title to and ownership of and property in the products shall pass to the Buyer only upon ACS receipt of the full purchase price and while the products remain the property of ACS the Buyer holds the products on trust for ACS in terms of these general terms and conditions and the Buyer shall store or keep the products in a manner which clearly identifies the products as the property of ACS
13) Risk and Indemnity
Notwithstanding any other of the terms of these General Conditions the risk in the products shall pass to the Buyer on delivery to the Buyer or the Buyer’s agent and should the products be lost or damaged after delivery and prior to payment the Buyer shall indemnify ACS for such loss or damage.
14) Statutory Rights
Certain Federal, State and Territory legislation including but not limited to the Trade Practices Act 1974 as amended (“the Act”) has the effect of giving certain rights which cannot be excluded, restricted or modified by agreement. The provisions of this Agreement are to be read subject to such legislation to the extent that it may be applicable and nothing in this Agreement shall have the effect of excluding, restricting or modifying such rights. Should ACS be liable for breach of a condition or warranty implied by the Act, ACS’ liability is limited to:
The replacement of products or the supply of equivalent products; or
The repair of the products; or
The payment of the cost of replacing the products or acquiring the equivalent products.
15) Force Majeure
Without prejudice to any other provision hereof ACS is not liable for any failure to fulfill any terms of this Agreement if such fulfillment is delayed, hindered or prevented by any circumstances not within ACS’ direct control including without limiting the generality of the foregoing strikes or lock-outs or material shortages. ACS suppliers’ failure to supply, labour disputes, war, acts of terror, hostilities or the threat of apprehension thereof or compliance with any order or request of any competent Government or Authority or department.
16) Whole Agreement
These conditions constitute the whole of the agreement between the parties about the subject matter hereof and representations and agreements not expressly contained or incorporated by reference shall not be binding upon ACS as conditions, warranties or otherwise. All additions and modifications of these conditions shall be in writing signed by both the Buyer and ACS
17) Exclusions
All conditions, warranties and representations on the part of ACS with the exception of these conditions and any applicable statutory warranties and representations of any guarantee expressly referred to herein are expressly excluded.
18) Assignment
The Buyer shall not be entitled to assign the benefit of any agreement with ACS for the supply of products without ACS’ written consent which consent ACS may give or withhold at its absolute discretion.
19) Default
If the Buyer:
Fails to pay the purchase price on the due date;
Fails to perform any of its obligations under these conditions or any other agreement with ACS;
Being an individual commits any act of bankruptcy or being a corporation passes a resolution for winding up (except for the purposes of re-structure); or
Has a receiver and manager appointed over any of its property or assets; or
Makes an arrangement for the benefit of its creditors or enters into any scheme of arrangement pursuant to any of the provisions of the Companies Code; or
Has a petition presented for its winding up which is not dismissed within 21 days from the date of presentation thereof then ACS may, at its option do any or all of the following:
Demand immediate payment of the balance of the purchase price;
Require payment in advance for all deliveries;
Enter the Buyer’s premises and repossess the products and any other products or goods sold by ACS to the Buyer for which payment is overdue; or
Immediately suspend or terminate the supply or further supply of products pursuant to any agreement between ACS and the Buyer for the supply of products.
The Buyer indemnifies ACS against all losses, damages and expenses incurred or sustained by ACS as a result of the cancellation or partial cancellation of any agreement pursuant to this clause 19.
20) Applicable Law
These conditions shall be governed by the laws of the State of New South Wales.