Braemac General Terms & Conditions
General Terms & Conditions of Sale - Australia
1. INTERPRETATIONS AND DEFINITIONS
1.1. In these conditions “Seller” means Braemac Pty Ltd ABN 71 332 650 026 and any other Company that is associated with Braemac Pty Ltd in accordance with the Corporations Act 2001 (Cth) and whether acting as trustee of a trust or in its own capacity and being the entity named as the Seller or Supplier in the Quote and the Order. “Buyer” means the person, body, firm or company with whom the Seller enters into a contract for the sale of Goods and/or the supply of Services.
1.2. These terms and conditions of trade apply to all contracts of sale entered into by the Seller and supersede and prevail over all terms and conditions which may be contained in any customer purchase order or in sales confirmation or otherwise.
1.3. Typographical and clerical errors are subject to correction and revision.
1.4.These conditions bind the Seller, the Buyer and their respective executors, administrators, successors and permitted assigns.
1.5. Words importing persons shall include corporations and words importing the singular number or plural number shall be deemed to include the plural number or singular number respectively and words importing the masculine gender shall include all genders as the case may require.
1.6. A reference to writing includes email and other communication established through the Seller’s website (if any).
1.7. “Goods” means any goods supplied by the Seller including those supplied in the course of providing Services.
1.8. “Green requirements” means any requirements that goods or services comply with specified standards to minimize harmful environmental effects.
1.9. “GST” means the goods and services tax payable pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
1.10. “Order” means a purchase order for goods or services placed by a Buyer in response to a Quote and as varied in writing from time to time by the parties.
1.11. “Quote” means a description of the Goods or Services to be provided by the Seller, whether in writing or oral, an estimate of the Seller’s charges for the supply of the Goods or performance of the required Services and an estimate of the time frame for the delivery of the Goods or performance of the Services.
1.12. “RoHS” means the directive on the restriction of the use of certain hazardous substances in electrical and electronic equipment adopted in February 2003 by the European Union.
1.13. “Services” means the services to be provided by the Seller to the Buyer in accordance with these terms and conditions of trade
2. QUOTE AND PURCHASE ORDER
2.1. Any Quote given by the Seller is a mere invitation to treat and does not constitute a contractual offer and the Seller reserves the right to vary or withdraw a Quote at any time.
2.2. Once the Seller has sent to the Buyer an acknowledgment of the acceptance of the Order the Buyer may not alter or modify the Order without the written consent of an authorised employee of the Seller.
2.3. As a general rule the Seller seeks to support an eight (8) week cancellation window. This period is classified as eight (8) weeks prior to Seller’s confirmed delivery date. However in all instances cancellation is subject to acceptance by the Seller for any particular cancellation request.
Any non-standard, indent, custom, or customer specific items are subject to non-cancellation non-returnable (NCNR) terms.
3. PAYMENT OF PRICE
3.1. Unless specifically stated otherwise all quoted prices are net of any applicable freight and insurance charges, GST, customs duty and any other government charges of any kind which are all to be added to the amount payable by the Buyer.
3.2. All prices of imported Goods quoted are based on the FOB price of the Seller’s supplier and the rates of exchange, freight, insurance, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials, customs duties and other charges affecting the cost of production ruling at the date of Quote. The quoted prices may be varied by the same amount by which the Seller’s actual costs have been varied as a result of any change in the said rates.
3.3. Subject to clause 3.4 all accounts are on a COD basis and all Goods and Services shall be paid for before they are supplied.
3.4. If the Buyer has an approved credit account with the Seller the Goods and Services supplied must be paid for within thirty (30) days of the date of invoice or thirty (30) days from the date of shipment whichever occurs first. Where the Buyer is overdue with any payment or the Seller is in receipt of credit reference, which it regards as unsatisfactory, then the Seller reserves the right to change the Buyer to a COD account.
3.5. Each consignment shall be considered a separate and independent transaction and payment therefore shall be made accordingly.
3.6. Without prejudice to any other remedy the Seller reserves the right to charge interest on any overdue payment at the rate of one and a half per cent (1½%) per calendar month calculated from the due date for payment until the date payment is received. Unpaid interest will be capitalized at the end of each month.
3.7. Failure to pay any invoice by the due date may result in the account being referred to a debt collection agency for recovery. All costs incurred in recovering the amount outstanding, including but not limited to collection costs, legal action, mercantile agent fees and solicitor’s costs will be payable by the Buyer.
3.8. The Seller does not change its Bank Account Details which includes the BSB, Swift Code and Account Number.
3.9. The Buyer should contact the Seller’s Finance Department by telephone, immediately on receipt of any communication relating to any change of Bank Account details by any means to verify the validity of such communication.
3.10. The Buyer will bear responsibility for ensuring that payments are made to the Seller’s correct Bank Account as payment into the wrong Bank Account will not constitute a valid payment.
4. GOODS AND SERVICES TAX (GST)
4.1. The Seller quotes prices exclusive of GST. Unless the Buyer provides the Seller with an authorised tax exempt certificate, GST will be added to invoices.
5. PASSING OF RISK AND PROPERTY
5.1. Risk in the Goods passes to the Buyer when the Goods are loaded at the Seller’s premises for delivery to the Buyer. Risk of loss in transit is the responsibility of the Buyer.
The Seller shall retain title to the Goods until it has received payment in full for them. Goods belonging to the Seller which have not been paid in full shall be stored by the Buyer so that they are identifiable as such. The fact that the Seller retains title to the Goods until they have been paid for shall not affect its right as an unpaid Seller or the passing of the risk of the Goods to the Buyer pursuant to clause 5.1. Furthermore if payment is overdue, or the Buyer enters into bankruptcy, liquidation, administration, a composition with its creditor, has a receiver or manager appointed over all or any of its assets or becomes insolvent the Seller shall be entitled without prejudice to any other remedy, to retake possession of the Goods belonging to it and to enter any premises of the Buyer(or the premises of any associated company or agent where the goods are located) without notice for this purpose without liability for trespass or any resulting damage.
6. PERSONAL PROPERTY SECURITIES ACT
6.1. If the Seller determines that a supply made to the Buyer (or a transaction in connection with the supply) is or contains a security interest for the purposes of the Personal Property Securities Act 2009 (Cth) (“PPSA”), the Buyer agrees to do anything (such as obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which the Seller asks and considers necessary for the purposes of:
(a) ensuring that the security interest is promptly registered, enforceable, perfected (including, where possible, by control in addition to registration) and otherwise effective; or
(b) enabling the Seller to apply for any registration, or give any notification, in connection with the security interest so that the security interest has the priority required by the Seller; or
(c) enabling the Seller to exercise rights in connection with the security interest.
6.2. The Seller is not required to give any notice under the PPSA (including a notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
7.1. The Buyer shall make its own transport arrangements. Where the Buyer fails to make transport arrangements the Seller can:
(a) For deliveries within the metropolitan area of mainland state capital cities, use a freight service of its own choosing and add a standard freight charge to the invoice;
(b) For deliveries outside these areas, the Goods will be dispatched freight on, or charged to the Buyer on the Seller’s invoice.
7.2. The Seller is not responsible to the Buyer or any person claiming through the Buyer, for any loss or damage to Goods in transit caused by any event of any kind or by any person (whether or not the Seller is legally responsible for the actions of that person).
8. DELIVERY TIME
8.1. Delivery dates are estimated in good faith by the Seller and are not of the essence of the contract.
8.2. Under no circumstances will the Seller be liable for damages of any kind (including consequential, special or incidental damages including loss of profits) for failure to deliver or for delay in delivery howsoever occasioned.
8.3. The Buyer is not relieved from accepting delivery at the agreed price when the causes delaying delivery are removed.
8.4. If delivery is in instalments, delay in delivery of any instalment shall not relieve the Buyer of its obligation to accept the remaining instalments.
8.5. In the event of any happening beyond the Seller’s reasonable control in consequence of which the Seller cannot effect delivery by the time or times quoted or specified in the Order, the Seller shall be entitled to deliver part only of an Order, suspend delivery or extend time for delivery for the period during which such cause of delay operated or may cancel the Order and in the event of such suspension, extension or cancellation the Seller shall not be liable for damages of any kind including damages of the kind referred to in Clause 8.2.
9. MINIMUM ORDER
9.1. The minimum order value and the minimum order quantity per line item that the Seller will accept are indicated in the Seller’s Quote, where less than minimum quantities are ordered the Seller will automatically increase the quantity to meet minimum levels.
9.2. Where quantities are ordered which constitute broken pack sizes, those quantities will be increased to the next highest unbroken pack size.
10.1. The Buyer must inspect all Goods supplied upon delivery. The Seller will not be liable for shortages and other errors in delivery unless the Buyer submits a claim in writing to the Seller within seven (7) days of the date of delivery to which the claim relates.
10.2. Goods cannot in any circumstances be returned to the Seller:
(a) without the prior written consent of an authorised employee of the Seller; and
(b) unless accompanied by a delivery document showing the Seller’s Return Materials Advice number.
10.3. Whilst the Seller will take all reasonable steps to ensure that all Goods supplied to the Buyer comply, where possible, with RoHS, Lead-free or Green requirements, the Seller makes no warranty or promise in this regard and will not be liable to the Buyer on any account whatsoever in the event that the Goods do not so comply.
11.1. All Goods are supplied by the Seller to the Buyer on an “as is” basis without any warranty of any kind. However the Seller shall assign to the Buyer in so far as it is able to do so the benefit of any condition, warranty or guarantee express or implied in the Seller’s contract with its own supplier.
11.2. Subject to clause 11.3, clause 11.1 sets forth the full extent of the Seller’s obligation and liability to the Buyer with respect to the Goods and Services supplied and all terms, conditions warranties and representations that might otherwise be implied by statute or otherwise are hereby excluded.
11.3. Certain legislation including the Competition and Consumer Act 2010 (Cth) imply warranties or conditions or impose obligations upon the Seller which cannot be excluded, restricted or modified except to a limited extent. In addition there are certain obligations and liabilities that according to law the Seller cannot avoid. These terms and conditions must be read and construed subject to such statutory provisions and other obligations and liabilities. Where such statutory provisions or other obligations or liabilities apply to the extent to which the Seller is entitled to limit its liability, then its liability shall be limited at its option to:-
(a) In the case of a supply of Goods:
(i) The replacement of the Goods or supply of equivalent Goods;
(ii) The payment of the cost of replacing Goods or acquiring equivalent Goods;
(iii) The payment of the cost of having the Goods repaired; or
(iv) The repair of the Goods; and
(b) In the case of the supply of Services:
(i) The supply of the Services again; or
(ii) The payment of the cost of having the Services supplied again.
12. LIMITATION TO LIABILITY
12.1. To the extent permitted by law and subject only to any exceptions contained in these terms and conditions the Seller will under no circumstances be liable in any way whatsoever to the Buyer for any loss, damage or expense sustained or incurred by the Buyer or any other party, or for which the Buyer may be liable, in consequence of or resulting directly or indirectly out of the supply of the Goods or Services by the Seller, the use or performance thereof, any breach by the Seller of any provision of any contract incorporating these terms and conditions or the negligence of the Seller.
12.2. Without in any way affecting the foregoing provisions and only for the avoidance of doubt, in no circumstances will the Seller be liable to the Buyer or any third party claiming through the Buyer for indirect or consequential damage or loss of any kind in connection with any supply by the Seller. For avoidance of doubt loss of profits are expressly agreed to be indirect damages and the Seller will in any case be liable for these.
12.3. Despite anything to the contrary hereinbefore contained or implied or any rule of law or equity or any other representation, promise or agreement of any kind, in no circumstances will the Seller’s liability for claims exceed the amount paid for the claim by the Seller’s insurance provider for Product Liability and/or Public Liability.
12.4. The Buyer also acknowledges that the Seller does not hold Recall Insurance and that the Seller will not in any circumstances be liable for recall costs of any kind.
13. DISCLAIMER WHERE SPECIFICATIONS AVAILABLE
13.1. Despite any law or rule or any other provision of these terms and conditions to the contrary, if the specifications for any Goods or Services supplied by the Seller to the Buyer can be obtained from the Seller, the manufacturer or the supplier to the Seller of the Goods or Services (including where such specifications are available from the manufacturer’s or supplier’s website), then the Buyer will have no claim or action of any kind against the Seller on account of the fact that the Goods or Services are, or are alleged to be, unsuitable for the purpose for which they are intended as a consequence of the specifications for the Goods or Services being inadequate for such purpose, irrespective of whether the Seller was aware or ought to have been aware of such purpose, and the Buyer shall in all cases be taken to have satisfied itself, prior to ordering the Goods or Services, of their adequacy, suitability or fitness for such purpose.
14. PURCHASE FROM NOMINATED SUPPLIER OR MANUFACTURER
14.1. If the Seller has, at the request of the Buyer, agreed to acquire any Goods (including components for incorporation into other Goods) from a third party supplier nominated by the Buyer, or if the Buyer has nominated specific Goods or components by description, then the Buyer acknowledges and agrees that the Seller has only agreed to do so strictly on the following additional terms and conditions:
(a) The Buyer agrees to purchase the Goods without any warranty or representation of any kind in relation to the quality or merchantability of the Goods nor as to the fitness of the Goods for the purpose for which they are intended.
(b) The Buyer agrees to accept the Goods in the condition in which they are supplied and releases the Seller absolutely and holds the Seller harmless from any claims, actions and suits of any kind including for legal expenses arising directly or indirectly from the supply of the Goods by the Seller to the Buyer and the Buyer indemnifies and agrees to keep indemnified the Seller from any such claims, actions and suits including for legal expenses that may be made against the Seller by a third party claimant.
(c) The Buyer acknowledges and agrees that this release may be pleaded by the Seller in defence of any such action, claim or suit brought by the Buyer against the Seller and shall act as an absolute bar to any such proceedings.
(d) The Buyer agrees to take out and keep current at all times a Product Liability Insurance Policy in respect of the Goods with a reputable insurer for not less than $20 million and that the interest of the Seller shall be noted on such policy.
14.2. In the event of inconsistency between this clause and any other of these terms and conditions, this clause shall, to the extent of any such inconsistency, prevail.
15. GOVERNING LAWS
15.1. The construction validity and performance of any contract incorporating these terms and conditions shall be governed by the laws of the State of New South Wales Australia and the Buyer shall submit to the jurisdiction of the Courts of that State.
16.1. If any provision of these terms and conditions at any time is, or becomes void, voidable or unenforceable the remaining provisions will continue to have full force and effect.
16.2. Headings are included for ease of reference and do not form part of or affect interpretation of these terms and conditions.
16.3. These terms and conditions and any Quotes or Orders and written variations agreed to in writing by the Seller represent the whole agreement between the parties relating to the subject matter of these terms and conditions.
16.4. A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote and delivered personally, sent by pre-paid post to the address of the addressee specified in the relevant Quote; sent by facsimile transmission to the facsimile number of the addressee specified in the relevant Quote, with acknowledgement of receipt from the facsimile machine of the addressee or sent by email to the email address of the addressee specified in the relevant Quote with acknowledgement of delivery.
16.5. A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by facsimile or email before 4.00 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.
17. SALES RESTRICTIONS
17.1. The Seller does not sell electronic components to countries, organisations and individuals that have been banned or embargoed by the governments of Australia and USA. This applies specifically to those known to be engaged in the manufacture of weapons of mass destruction and other warfare applications. Accordingly, the Seller’s sales force endeavours to establish the potential customers’ intended applications and take steps to decline sales and black list customers and/ or countries recognised engaging in such applications.