Terms & Conditions of Sale

 

1. DEFINITIONS

In these Conditions, unless the contrary intention appears:

“Agreement” means the agreement formed pursuant to Clause 3 below.  It shall include the Quotation, the Purchase Order, the

acceptance by Automation Industries Pty Ltd (AI) of the purchase order, these Terms and Conditions and any Special

Conditions; 

“Change in Law” means any change in regulation or legislation enacted by any government authority or delegated government

authority.

“Conditions” means these Terms and Conditions and any Special Conditions agreed in writing by Automation Industries;

“Goods” means all or any part of the Goods the subject of a Purchase Order and includes Goods supplied as part of an

Agreement for the supply of Services;

“Intellectual Property” means all trademarks, patents, registered designs, copyright, logos, designs, drawings and software;

“Price” means the price of the Goods or Services as agreed by the Purchaser and Automation Industries at the time the Agreement is formed

pursuant to Clause 3 below. The Price shall be set pursuant to Clause 6 below;

“Purchase Order” means an offer by the Purchaser for the purchase of Goods or Services in accordance with any Quotation

Issued by Automation Industries, and includes any specifications or drawings attached or referred to in any such Purchase Order;

“Purchaser” means the Purchaser on the Purchase Order;

“Quotation” means any quotation issued by Automation Industries to a Purchaser for the supply of the Goods and/or Services stipulated in

Australian dollars (or in the case of New Zealand, New Zealand dollars) including the specifications for the Goods and/or

Services;

“Services” means all or any part of the services to be provided by Automation Industries pursuant to the Agreement.

“Special Conditions” means the special conditions referred to in Clause 6 below.

 

2. APPLICATION OF THESE TERMS AND CONDITIONS

These Conditions apply to all Agreements entered into by Automation Industries and a Purchaser except as varied in writing by Automation Industries.

 

3. QUOTATION AND FORMATION OF AGREEMENT

(a) All Automation Industries Quotations are an invitation to treat only and, subject to price variation pursuant to Clause 6 below, are valid for 30 Days from the Quotation date or as varied in writing by Automation Industries prior to the formation of an Agreement.

(b) The Agreement shall be formed by the acceptance of Automation Industries of a Purchase Order submitted within the valid time frame of the

Automation Industries Quotation. Any Agreement shall be subject to these Terms and Conditions, the Automation Industries Quotation and any Special

Conditions.

 

4. COMPONENTS

(a) If Goods require components and a specific brand is not requested by the Purchaser in the Purchase Order then Automation Industries in its

Sole and absolute discretion shall use such components as it deems necessary.

(b) In the event the Purchase Order specifies a specific brand of components and Automation Industries has accepted the Agreement on this

Basis, any delay in obtaining the specified component shall result in corresponding extension of time for Automation Industries to provide the

Goods or Services.

(c) Automation Industries reserves the right to make reasonable modifications of any kind to the Goods without prior notice to the Purchaser.

 

5. INTELLECTUAL PROPERTY RIGHTS

(a) Provided no monies are owing by the Purchaser to Automation Industries, Automation Industries shall protect and indemnify the Purchaser from and

Against all claims, damages, judgments and losses arising from any of infringements or alleged infringements by Automation Industries of

Any Intellectual Property rights by any of the Goods delivered or provided under the Agreement, provided always that the

Purchaser provides written notification of any such claims to allow Automation Industries sufficient time to conduct any litigation, and

Cooperates with Automation Industries in the conduct of any litigation. Where the Purchaser fails to provide such notice or cooperation, the

Indemnity shall not apply.

(b) Property, right and title in all Intellectual Property relating to the Goods shall remain with Automation Industries and the Purchaser shall be

Entitled to a nonexclusive license for so much of the Intellectual Property that is required for the proper use and

Performance of the Goods.

(c) All Intellectual Property created during the course of the supply of the Goods or as a result of work done in connection with

The supply of the Goods shall be the property of Automation Industries. The Purchaser shall execute all documents evidencing ownership of

The Intellectual Property as Automation Industries may reasonably require.

(d) All plans, drawings, dimensions and quantities submitted by Automation Industries with any Quotation are approximate, for Quotation

Purposes only and must not be used for construction purposes. The Purchaser must check all plans, drawings, dimensions,

Quantities and other specifications submitted by Automation Industries prior to installation of any Goods. Automation Industries shall not be responsible for

Any loss, damage or delay caused by or as a consequence of the Purchaser’s failure to check all plans, drawings,

Dimensions, quantities and other specifications provided by Automation Industries.

 

6. PRICE

(a) Subject to clause 6(b), the Price for which Automation Industries provides the Goods (“The Price”) pursuant to the Agreement shall be fixed

From the date of formation of the Agreement.

(b) If there is a Change in Law since the formation of this Agreement which causes Automation Industries to incur additional cost for the supply

Of the Goods and Services, Automation Industries shall adjust the Price to reflect the change in cost, using reasonable endeavours to

Minimise any increase.

(c) Up until formation of this Agreement (i.e acceptance by Automation Industries of a valid Purchase Order and subject to these terms and

Conditions) the Automation Industries Quotation is subject to exchange rate variations. Once the Agreement is formed, the Price is not

Subject to exchange rate variations.

 

7. GOODS AND SERVICES TAX

In this Clause:

(a) “GST” refers to goods and services tax under A New Tax System (Goods and Services) Act 1999 (“GST Act”) and the terms

Used have the meanings as defined in the GST Act.

(b) The Price and all other amounts agreed to be paid by the Purchaser to Automation Industries shall be exclusive of GST.

(c) In respect of any liability of Automation Industries for GST under this Agreement, and any variation for any taxable supplies, the Purchaser shall pay to Automation Industries , at the same time as any payment is made involving Automation Industries  in GST liability, the additional amount of GST,

Together with the payment to which it relates.

(d) The Purchaser’s liability under this Clause is to reimburse the full amount of GST, disregarding and excluding Automation Industries’

Entitlement to input tax credits or other credit or reimbursements for GST.

(e) In respect of each payment by the Purchaser under this Agreement Automation Industries agrees to deliver to the Purchaser tax invoices in

A form which complies with the GST Act and the applicable regulations.

 

8. SUPPLY OF INFORMATION

(a) The Purchaser warrants the accuracy of all information provided by it, and Automation Industries shall not be responsible for any loss or damage in the event that the Purchaser’s information is incorrect in any respect.

(b) Any additional costs incurred by Automation Industries as a result of incorrect information or delay in supply of information by the Purchaser,

Including storage and transport costs, shall be payable by the Purchaser to Automation Industries in addition to the Price. Any such delays

Shall result in a corresponding extension of time for Automation Industries to supply the Goods.

 

9. DELIVERY OF THE GOODS 

(a) Delivery dates are estimates only unless the Agreement clearly specifies an agreed delivery date and that time is of the

Essence.

(b) The Purchaser may only reschedule the delivery date if Automation Industries is notified in writing. Any additional costs or losses of Automation Industries as a result of any change in delivery date (including storage) shall be at the Purchasers cost and paid in addition to the

Price.

(c) The Price agreed by Automation Industries  under any Agreement is for Goods delivered free on truck from Automation Industries  premises (excludes deliveries more than 50km outside the metropolitan area) unless otherwise agreed by Automation Industries  in writing at the time of entering in to the Agreement. The Goods shall be deemed delivered once loaded onto the Purchasers nominated carrier at Automation Industries premises or at the nominated address of the Purchaser, at which time risk in the Goods passes to the Purchaser. 

(d) All deliveries shall occur in normal working hours. Any additional costs for delivery outside normal working hours shall be at

The cost of the Purchaser.

(e) The Purchaser shall inspect the Goods on delivery, and report in writing any damage to the Goods or shortage in delivery to

Automation Industries within three (3) working days of delivery. Unless Automation Industries receives such written notification within this time, the Goods

Shall be deemed delivered and accepted in all respects in accordance with the Agreement, free from damage and shortage.

Failure to comply with this Clause shall be a bar to any claim against Automation Industries.

(f) The Purchaser shall indemnify and keep indemnified Automation Industries against any loss or damage which occurs during removal of the Goods from the truck and installation, unless Automation Industries  installs the Goods in which case such indemnity shall apply once the

Installation is complete.

 

 

10. FORCE MAJEURE

(a) Should Automation Industries be prevented from delivering any of the Goods to the Purchaser or performing any Services in accordance with the Agreement by reason of any event beyond Automation Industries ’s control, including but not limited to industrial disputes, an

intervention during shipping, acts of parliament, embargo, litigation, Court Orders, civil strife, fires, floods, Acts of God and

Automation Industries’ inability to procure materials or components from its usual sources of supply, Automation Industries shall be entitled at its own

Option:

(I) to delay delivery of the Goods and/or Services; or

(ii) To terminate the Agreement

The Purchaser will not be entitled to recover any damage or loss as a result of such delay or termination.

 

11. ACCESS AND EQUIPMENT FOR DELIVERY OF GOODS 

(a) For delivery of the Goods, the Purchaser shall provide Automation Industries with adequate and safe entry and access to the premises when required, and with all necessary equipment and services required, for the removal of the Goods from the truck, at the

Purchaser’s cost.

(b) Automation Industries shall not be liable for any loss or damage arising from or related to any failure or delay in providing entry, access,

Equipment or services as required. Any additional costs incurred by Automation Industries arising from or related to any issue with access or

Equipment shall be borne by the Purchaser.

(c) Any delays arising under this clause shall result in a corresponding extension of time for Automation Industries to deliver the Goods/and or

Services.

 

12. PASSING OF PROPERTY AND RISK 

(a) Except where Automation Industries is storing the Goods on behalf of the Purchaser, Automation Industries shall bear all risks for the Goods until delivery

To the Purchaser’s address or collection by the Purchaser from Automation Industries’ premises. The Purchaser shall be on risk for the

Goods where Automation Industries stores the Goods on behalf of the Purchaser.

(b) Ownership and property in the Goods shall pass upon receipt of full payment by the Purchaser.

(c) Automation Industries shall, at the Purchaser’s written request and where practicable, arrange transit insurance, and all costs in relation

Thereto shall be borne by the Purchaser.

 

13. TESTS

(a) The cost of any tests required by the Purchaser to determine the performance of the Goods shall be borne by the Purchaser.

(b) If witness testing is required by the Agreement, the Purchaser shall attend to such testing within 2 working days from the

Date of notification of commissioning of the Goods, failing which an invoice shall be issued for the Goods and payment will

Be required in accordance with these Conditions.

 

14. LIMITATION OF LIABILITY

(a) Automation Industries’ liability (whether arising under this Agreement, breach of statute, tort or howsoever arising) up to delivery or

Commissioning is limited to any one or more of the following as determined by Automation Industries in its absolute discretion:

(I) in the case of supply of Goods;

(1) The replacement or repair of the Goods; or

(2) The supply of equivalent Goods; or,

(3) 100% of the Price

(ii) In the case of supply of Services;

(1) The supplying of the Services again; or

(2) The payment of the cost of having the Services supplied again; or

(3) 100% of the Price

(b) Automation Industries’ liability (whether arising under this Agreement, breach of statute, tort or howsoever arising) after delivery or

Commissioning of the Goods (i.e during the warranty period) is limited to any one or more of the following as determined by

Automation Industries in its absolute discretion:

(I) in the case of supply of Goods;

(1) The replacement or repair of the Goods; or

(2) The supply of equivalent Goods; or,

(3) 10% of the Price 

(ii) In the case of supply of Services;

(4) Supplying of the Services again; or

(5) The payment of the cost of having the Services supplied again; or

(6) 10% of the Price 

(c) In no circumstance is Automation Industries liable for loss of profit, loss of revenue or business, loss of opportunity or any consequential or

Special damages. 

(a) Automation Industries shall be under no liability to the Purchaser for any loss or damage suffered or incurred by the Purchaser arising from

Its acts or omission (or its servants, agents, employees, tenants and guests).

(b) Automation Industries shall not be liable for liquidated damages or any damages for delay unless agreed in writing by Automation Industries.

 

15. INDEMNITY

The Purchaser shall indemnify and keep indemnified Automation Industries and its successors and assigns from and against all actions, suits,

Claim, loss, damage, expense and demands and costs, arising out of or in relation to the actions or omissions of the Purchaser or

Its servants, agents, employees, tenants and guests.

 

16. WARRANTY

(a) Unless expressly provided by Automation Industries in writing, Automation Industries does not warrant any Goods are suitable or fit for purpose. 

(b) Unless expressly provided by Automation Industries in writing, in respect of any Goods supplied pursuant to the Agreement and subject to

The following:

(I) Automation Industries actually undertakes the service and maintenance of the Goods during the Warranty period; and

(ii) The Goods are not supplied and installed more than 50km outside of the metropolitan area of each capital city

Automation Industries warrants that, for a period of 18 months from the date of shipment from factory or 12 months after the Goods are

Commissioned (whichever occurs first), the Goods shall be free from defective materials and workmanship under normal use

And service. If commissioning is delayed (not through the fault of Automation Industries) then the Purchaser may purchase from Automation Industries

Delayed commencement warranty.

(c) Unless expressly stated in writing by Automation Industries , where the Goods are supplied and installed more than 50km outside the

Metropolitan area, the warranty excludes the cost of accommodation and travel expenses.

(d) Where the Agreement does not provide for the installation of the Goods by Automation Industries, this warranty shall not apply in respect of

Goods installed improperly, in a dangerous or unsafe manner, not in accordance with any applicable building codes,

Standards or any other applicable industry codes or standards, or contrary to Automation Industries’ instructions regarding installation of

The Goods whether verbal or written.

(e) This warranty shall not apply to Goods subjected from the date of delivery to: abuse, neglect, or damage by fire, flood,

Abrasion, erosion, corrosion, or deterioration or the like due to changes in temperature; exposure to foreign matter,

Chemicals, energy, water, steam or other similar cause or failure to comply with any instruction or manual for the Goods

(“Abuse”). To the fullest extent permitted by law, Automation Industries shall not be liable in any way to the Purchaser for any damage to the

Goods arising from or related to Abuse, and shall not be responsible for replacing or repairing the Goods so damaged. To

The extent permitted by law, Automation Industries shall not be liable for, and this warranty shall not apply to, damage to the Goods arising

From work conducted or materials supplied to the Goods other than by a person authorized in writing by Automation Industries, or arising

From the Purchaser’s failure to notify Automation Industries of any defects within a reasonable time after those defects are first noticed by

The Purchaser.                                                                                      

(f) Resetting of equipment faults without first notifying, receiving advice or an inspection from Automation Industries may void the equipment

Warranty.

(g) Any replacement part supplied by Automation Industries pursuant to this warranty shall be covered by that warranty for the unexpired

Portion of the warranty period in respect of the Goods or for a period of 90 days, whichever period expires last. The cost of

Labour for fitting of replacement parts will be at the expense of the Purchaser.

(h) This warranty does not extend to the replacement of refrigerant loss caused by defects in the Goods or performance of the

Works except in packaged liquid chillers and complete refrigerant systems (such as self-contained packaged air conditioning

Units) or where specifically agreed in writing by Automation Industries.

(I) Where Automation Industries attends to rectification of defects pursuant to the warranty provisions of this contract and Automation Industries later

Determines that the defects are not covered under the warranty or resulted from the acts, omissions or materials of a party

Other than Automation Industries, then the Purchaser shall pay to Automation Industries within 30 days of demand the cost of such services and materials.

This cost shall be determined by Automation Industries at its sole discretion.

(j) Nothing in this Clause will exclude, restrict or modify any condition, warranty, right or liability implied by law where to do so

Would render this Clause void.

 

17. NOISE AND VIBRATION

Any information provided by Automation Industries concerning noise and vibration is given for the assistance of the Purchaser but the Purchaser

Shall not rely upon such information nor upon the skill or judgment of Automation Industries in respect of such information. Automation Industries shall not be

Responsible for noise and/or vibration except where such responsibility has been specifically requested by the Purchaser and

Agreed in writing by Automation Industries.

 

18. RETURNS

Goods may not be returned except with the written consent of Automation Industries, and when Goods are so returned all monies payable to

Automation Industries will remain due and payable, subject only to such discount, rebate, reimbursement or other condition as is stated in the

Written consent.

 

19. TERMS OF PAYMENT

(a) Subject to the Purchaser obtaining credit approval prior to the ordering and delivery of the Goods, payment shall be made by

The Purchaser within 30 days of invoice by Automation Industries 

(b) Where any monies due and payable by the Purchaser to Automation Industries remain outstanding:

(I) such amount will be subject to an interest rate of 3.0% per month calculated on a daily basis from the due date of payment on the total of any or all monies which remain overdue for payment from time to time and such interest shall accrue before as well as after any court Judgment which is entered against the Buyer.

(ii) The charging or payment of interest shall be without prejudice to all other rights and remedies Automation Industries may have to

Recover any amount due pursuant to the Agreement.

(iii) Charge the Buyer a monthly account keeping fee being the greater of $50.00 or 5.0% of the total of any and all monies which remain overdue for payment on the first day of each month.

 (iv) charge the Buyer an administration fee of $50.00 per month or on any part of a calendar month in which monies remain overdue for payment or in the event that a cheque presented for payment is subsequently dishonoured.

(c) Should the Purchaser fail to take delivery of the Goods within 7 days of notification by Automation Industries that the Goods are ready for

Dispatch (or delivery) from Automation Industries’ premises, Automation Industries reserves the right to arrange storage of the Goods and to obtain

Payment for the Goods as though the Goods had been delivered in accordance with the Agreement, and further to recover

The storage and handling costs together with any other additional costs and loss incurred by Automation Industries.

(d) Where any monies due and payable by the Purchaser to Automation Industries remain outstanding, or if the Purchaser is in breach of the Agreement, Automation Industries may suspend performance of this Agreement, until those moneys are paid to Automation Industries or the breach is rectified. In the event the breach is not rectified within 30 days, Automation Industries may terminate the Agreement, in which case Clause

21 shall apply. Automation Industries shall in no way be liable for any loss or damage of any kind arising from any such suspension or

Termination, and the Purchaser shall be responsible for any costs or loss incurred by Automation Industries arising from such suspension or

Termination.

(e) If Automation Industries terminates the Agreement or takes possession of the Goods pursuant to the Agreement, Automation Industries may resell the

Goods concerned or the undelivered balance thereof.

(f) In the event the Purchaser contracts a third party to undertake any services during any warranty period provided by the

Agreement, then all warranties provided by Automation Industries under the Agreement shall be null and void and Automation Industries shall be at liberty

To terminate the Agreement in which case Clause 21 shall apply,

(g) To the fullest extent permitted by law, the obligations of Automation Industries to warrant the Goods pursuant to Clause 16 shall be

Suspended insofar as any monies which are due and payable by the Purchaser to Automation Industries remain outstanding. The warranty

Period provided by Clause 16 shall remain unchanged notwithstanding that pursuant to this Clause 19(g) the warranty has

Not applied for part of that period. 

(h) The Purchaser shall not be entitled to deduct or withhold from any invoice any moneys by way of retention, set-off, counter

Claim, or otherwise.

 

20. RETENTION OF TITLE

(a) Risk passes to the Purchaser upon delivery but property and title in the Goods remains with Automation Industries  until full payment for the

Goods is received.

(b) Until the Goods have been paid in full and ownership remains with Automation Industries, the Purchaser must:

GST 69 350 690

(i) Hold the Goods as a bailee, and store them separately from all other goods clearly showing they are the property of

Automation Industries (including by not removing any serial numbers or identification of Automation Industries’);

(ii) Take out and maintain with a reputable insurance company comprehensive insurance of the Goods against any loss

Or damage to the Goods, howsoever caused

(iii) Only sell the Goods in its ordinary course of business by a bona fide sale at full market value, in its own name, and

Not as the agent of Automation Industries;

(iv) Maintain a separate account holding the payment in trust and account to Automation Industries for the proceeds of any sale in a

Separate bank account, allowing Automation Industries to inspect these records upon request; and,

(v) Provide Automation Industries access to any premises to inspect the Goods upon demand;

(c) If:

(i) The Purchaser fails to pay any monies due and payable pursuant to the Agreement; or

(ii) The Purchaser breaches, repudiates or terminates the Agreement; or

(iii) Winding up proceedings are commenced against the Purchaser; or

(iv) A Liquidator, Administrator, Receiver, Manager or Controller (as defined by the Corporations Act 2001) are appointed

to the Purchaser or any part of its assets; or

(v) the Purchaser commits an act of bankruptcy (as defined by the Bankruptcy Act 1966); or

(vi) Automation Industries  has a reasonable belief that a party may attempt to levy any form of execution against the Goods; or

(vii) the Purchaser suspends, or threatens to suspend, the conduct of its business; or

(viii) the Purchaser becomes unable to pay its debts as and when they fall due;

Then Automation Industries may terminate the agreement, in which case Clause 21 shall apply, and without notice to the Purchaser Automation Industries

May elect (at its discretion) not to continue performance of the Agreement or may enter upon any premises at which the

Goods are or may be stored and repossess them.

(d) Where any of the events referred to in paragraph (c) occurs, and where Goods delivered by Automation Industries to the Purchaser are

Used either in the manufacture or construction of new goods or are otherwise mixed with other objects to create new goods

("New Goods"), then Automation Industries shall be entitled to enter any premises at which the New Goods are stored and recover from

Those premises the Goods or the New Goods.

(e) The Purchaser indemnifies Automation Industries from any costs of removal, claims, suits and causes of action of any kind from any person

Or entity in respect of such entry and the removal of the Goods or New Goods.

(f) The affixing of Goods or New Goods to any part of any building in any manner whatsoever shall not have the effect of

Making the Goods a fixture of the building.

(g) The Purchaser must not assign any book debt represented the amount due and payable by any third party to the Purchaser

For the Goods until the Purchaser’s liability to Automation Industries under the Agreement has been discharged.

 

21. TERMINATION AND CANCELLATION

In the event that the Purchaser purports to terminate and/or repudiate or cancel the Agreement, or if Automation Industries terminates the

Agreement pursuant to the Agreement, then, without prejudice to its other rights and remedies, Automation Industries may recover from the

Purchaser all costs and expenses incurred by Automation Industries in its performance of the Agreement, and all loss and damages arising from

or related to the termination or repudiation.

 

22. CHOICE OF LAW

The Agreement shall be governed and construed according to the laws of the State of New South Wales or in the case of New

Zealand the laws of New Zealand.

 

23. ARBITRATION

Any dispute (that cannot be resolved between the parties) shall be referred to an arbitrator appointed by mutual agreement or,

Failing agreement, by the Institute of Arbitrators & Mediators Australia.  Automation Industries shall have the right to commence proceedings in a

court of competent jurisdiction the event the value of the dispute is $100,000 or greater or where the matter is not resolved by

arbitration.

 

24. NOTICES

Notices shall be delivered or posted to Automation Industries at its head office in New South Wales and to the Purchaser at its last known

address.

 

25. GENERAL PROVISIONS

(a) No consent or waiver, express or implied, of any breach by the Purchaser of the Agreement will be construed as a consent

to or waiver of any other breach of the Agreement.

(b) If any clause or provision of the Agreement is invalid, void or unenforceable, all other provisions which are capable of

separate enforcement are and will continue to be of full force and effect in accordance with their terms.

(c) Automation Industries’ Quotation, a Purchase Order and these terms constitutes the entire Agreement between the Parties and all prior

Agreements, representations or warranties, save those expressly incorporated by the Conditions, and all local, general or

trade customs, are hereby excluded.

(d) Unless otherwise agreed in writing by a director of Automation Industries these Conditions prevail over any other terms and conditions of

sale sought to be imposed by the Purchaser, to the fullest extent permitted by law.

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