Cahill
& Nemeth Pty Ltd.
ABN 83 095 264 681.
P.O Box 683, NARELLAN VALE, NSW,
2567
AUSTRALIA
Ph / Fax: +61(0)2 4648 0678.
Mobile: 0417 229 974
Web: http://www.ozestops.com
"Cahill
& Nemeth" means Cahill & Nemeth Pty Ltd
ABN 83 095 264 681 or any of it’s subsidiaries.
"Contract" means a contract for sale by Cahill &
Nemeth to the Customer of the Products and/or Services incorporating these Terms and Conditions.
"Customer"
means the person (legal or natural) who accepts a written quotation of Cahill & Nemeth’s for the sale of the Products
or Services or whose order for the Products or Services is accepted by Cahill & Nemeth.
"Product(s)" means
any product(s) sold to Customer pursuant to the Contract as specified on the Customer invoice.
"Price" means
the charges for the Products or Services.
"Services" means the Service Offerings selected by Customer.
"Standard
Service Hours" means the hours between 8.30 a.m. and 5.00 p.m. (in New South Wales) each
day excluding Saturdays, Sundays and public holidays (in New South Wales). The Standard Service Hours may be changed by Cahill & Nemeth without prior notification.
"Third Party
Products" means Products not manufactured or assembled or authorised by Cahill & Nemeth Pty Ltd or any of its subsidiary
companies and supplied to Cahill & Nemeth by third parties for resale by Cahill & Nemeth.
"Territory"
means Australia.
2.1 Cahill & Nemeth shall sell and the Customer shall purchase
the Products and/or Services, as principals only, to the intent and with the effect that no other party shall have any rights
or obligations or be entitled to sue or be sued, under the Contract.
2.2 The Products sold and/or Services
rendered are subject to these Terms and Conditions to the exclusion of any other terms and conditions stipulated or referred
to by Customer. The Customer acknowledges that it is aware of the contents of and agrees to be bound by these Terms and Conditions.
2.3 A Contract shall only come into existence when Cahill & Nemeth's written quotation is signed by Customer
or when Cahill & Nemeth receives Customer's order and such signed quotation/order is confirmed and accepted by Cahill
& Nemeth in writing or by delivery of the order, whichever is the earlier.
2.4 No variation or amendment
of these Terms and Conditions shall be binding on Cahill & Nemeth unless confirmed by it in writing.
2.5
All sales will be subject to satisfactory credit approval, either in respect of commercial credit account terms, credit card
application or payment. In placing an order with Cahill & Nemeth, Customer grants approval to Cahill & Nemeth to seek
trade references from customer supplied referee’s and from credit reporting agencies a credit report to permit the granting
of credit under the Privacy Act or similar legislation.
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3. ORDERS,
PRICE AND PAYMENT |
3.1 Unless credit terms have been expressly agreed by Cahill &
Nemeth, payment for the Products or Services shall be made in full before physical delivery of Products or Services.
3.2
All invoices are payable without discount of any kind in the denomination stated in the quotation. In no circumstances shall
the Customer be entitled to make any deduction, set off or to withhold payment for any reason whatsoever.
3.3
The price of the Products and/or Services shall be Cahill & Nemeth's quoted price or where no price has been quoted (or
a quoted price is no longer valid), the price listed in Cahill & Nemeth's published price list current in the Territory
at the date of the formation of the Contract.
3.4 All prices quoted in writing are valid for the period specified
on the quotation or until earlier acceptance by the Customer. Where an amendment to a quotation is required, Cahill &
Nemeth shall supply any amendments to quotations in writing.
3.5 Prices are exclusive of all country, provincial,
government, state and local sales, use, goods and services, value added, excise, privilege and similar levies/duties/taxes.
Taxes imposed on Cahill & Nemeth in connection with the sale, delivery or use of the Products or Services purchased pursuant
to these Terms and Conditions including without limitation in connection with interest on overdue payment shall be paid by
the Customer and will appear as separate items on Customer's invoice.
3.6 Time for payment is of the essence.
Cahill & Nemeth reserves the right to charge interest on sums overdue, on a day to day basis, as well after as before
any judgment, from the due date for payment thereof to the date of actual payment (both days inclusive) at the rate of 2%
above the base commercial floating rate of Westpac Banking Corporation. Such interest shall be paid on demand.
4.1 Cahill & Nemeth may revise and/or discontinue Products at any
time without notice as part of Cahill & Nemeth's policy of on-going Product up-date and revision. Revised or updated Products
will have the functionality and performance of the Products ordered. The Customer accepts that Cahill & Nemeth's policy
may result in differences between the specification of Products delivered to the Customer and the specification of Products
ordered.
5.1 Title to and risk in the Products shall pass to the Customer upon
delivery of the Products to Customer or the passing of the Products to the Customers agent or sub-contracted freight agent.
6.1 Cahill & Nemeth shall deliver the Products to the place of
delivery designated by Customer and agreed to by Cahill & Nemeth as evidenced in Customer's invoice ("Delivery Address").
6.2 Cahill & Nemeth may, at its discretion, deliver the Products by installments in any sequence. Where
the Products are so delivered by installments, each installment shall be deemed to be the subject of a separate contract and
no default or failure by Cahill & Nemeth in respect of any one or more installments shall breach the Contract in respect
of Products previously delivered or undelivered Products.
6.3 Any dates quoted by Cahill & Nemeth for the
delivery of the Products are approximate only and shall not form part of the Contract. Cahill & Nemeth shall not be liable
for any delay in delivery of the Products and/or Services, howsoever caused.
6.4 If the Customer fails to take
delivery of the Products or any part of them when they are made available to it or fails to provide any instructions, documents,
licenses, consents or authorisations required to enable the Products to be delivered on the due date, Cahill & Nemeth
shall be entitled, upon giving written notice to the Customer, to store or arrange for storage of the Products whereupon risk
in the Products shall pass to the Customer, delivery shall be deemed to have taken place, and the Customer shall pay to Cahill
& Nemeth all costs and expenses (including extra delivery, storage and insurance charges) arising from its failure.
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7. ACCEPTANCE
OF PRODUCTS |
7.1 Unless the Customer notifies Cahill & Nemeth to the contrary
on the day of delivery and such notification is confirmed in writing within two days, the Products shall be deemed to have
been accepted by the Customer as being in good condition and in accordance with the Contract. The Customer shall not be entitled
to withhold payment of all or any of the Price of the Products whilst any claim is being investigated by Cahill & Nemeth.
7.2 Return Policy
All returns must be authorised by Cahill & Nemeth Pty Ltd within 30 days of the invoice
date where the customer shall be given a Goods Return Number. All returns must be accompanied with a copy of the original
invoice and a Goods Return within 30 days from the invoice date. Within thirty (30) days of purchase, we will replace or repair,
at our sole discretion, any product that is deemed defective. After 30 days, the manufacturer's warranty process must be followed.
All non-defective returns authorised by Cahill & Nemeth Pty Ltd MAY BE subject to a 15% restocking fee, and must be returned
within 30 days from date of invoice. Any refund or credit will not include any shipping and handling charges forming part
of the purchase price unless goods delivered were incorrect due to a Cahill & Nemeth error. Cahill & Nemeth must receive
all returned Products in as-new or as-shipped-by- Cahill & Nemeth condition, including conformance to invoiced specification,
manuals, and other items included.
7.3 Cancellation Of Contract Orders (Before or After Delivery)
All cancellations
must be requested in writing. Cahill & Nemeth reserves the right to refuse cancellation on special product Contract orders
that may be purchased in for or manufactured for the fulfillment of a contract. Cahill & Nemeth may choose to offer a
cancellation fee to recover costs incurred in the preparation or delivery of the contract that will be invoiced to the Customer
and must be paid to cancel the Contract order.
8.1 Unless specified otherwise, Cahill & Nemeth warrants to the
Customer that Cahill & Nemeth branded Products (excluding Third Party Products, will be free from defects in materials
and workmanship affecting normal use for a period of one year from invoice date ("Standard Warranty").
8.2
This Standard Warranty does not cover damage, fault, failure or malfunction due to external causes, including accident, abuse,
misuse, , servicing not authorised by Cahill & Nemeth, usage and/or storage and/or installation not in accordance with
Product instructions, failure to perform required preventative maintenance, normal wear and tear, act of God, fire, flood,
war, act of violence or any similar occurrence; any attempt by any person other than Cahill & Nemeth personnel or any
person authorised by Cahill & Nemeth, to adjust, repair or support the Products and problems caused by use of parts and
components not supplied by Cahill & Nemeth. The Standard Warranty does not cover any items that are in one or more of
the following categories: external devices; accessories or parts added to the Product after the Product is shipped from Cahill
& Nemeth; or accessories or parts that are not installed by Cahill & Nemeth.
8.3During the one-year
period beginning on the invoice date, Cahill & Nemeth will repair or replace Products returned to Cahill & Nemeth's
facility. Customer must prepay shipping and transportation charges, and insure the shipment or accept the risk of loss or
damage during such shipment and transportation. Cahill & Nemeth will ship the repaired or replacement products to Customer
with freight charged to customer.
8.4 The warranty term for a spare part used in repairing Products ("Replacement
Part") is 90 days from its installation in the Product or the remainder of the warranty term for the Product into which it
is installed, whichever is longer. Cahill & Nemeth owns all parts removed from repaired Products. Cahill & Nemeth
uses new and/or reconditioned parts made by various manufacturers in performing warranty repairs and building replacement
Products. For the avoidance of doubt, the warranty term of a Product is not extended after its repair or replacement. Customer
will pay Cahill & Nemeth for a Replacement Part when the part replaced is not returned by Customer to Cahill & Nemeth
within 10 days after the date the Replacement Part was delivered to Customer by Cahill & Nemeth. Prices of the part replaced
will be at Cahill & Nemeth's then current standard price.
8.5 Cahill & Nemeth does not give any warranty
that the Products are fit for any particular purpose and this Standard Warranty is given in place of all warranties, conditions,
terms, undertakings and obligations implied by statute, common law, trade usage, course of dealing or otherwise including
warranties or conditions of merchantability, fitness for purpose, satisfactory quality and/or compliance with description,
all of which are hereby excluded to the fullest extent permitted by law.
8.6 The Customer agrees that, in relation
to Third Party Products purchased through Cahill & Nemeth, where such of the Products are covered by a relevant manufacturer's
warranty, then the Standard Warranty shall not extend to such Products and such manufacturer's warranty shall be the sole
warranty in respect of such Products.
9.1 Cahill & Nemeth's total liability under any Contract in respect
of each event or series of connected events shall not exceed the Price paid for the subject Product.
9.2 The
Customer shall indemnify Cahill & Nemeth and keep Cahill & Nemeth fully and effectively indemnified against any loss
of or damage to any property or injury to or death of any persons caused by any negligent act or omission or willful misconduct
of the Customer, its employees, agents or sub-contractors or by any breach of its contractual obligations arising out of these
Terms and Conditions.
9.3 Cahill & Nemeth and Customer agree that Cahill & Nemeth will not be liable
for Products not being available for use. Cahill & Nemeth shall not be liable to the Customer for any incidental, indirect,
special or consequential damages arising out of or in connection with the purchase, use or performance of Products or Services,
even if Cahill & Nemeth has been advised of their possibility.
9.4 Any typographical, clerical or other
error or omission in sales literature, quotation, price list, acceptance of offer, invoice or other documents or information
issued by Cahill & Nemeth shall be subject to correction without any liability on the part of Cahill & Nemeth.
9.5
Customer acknowledges that the limitation of liability contained in this clause is reasonable and that the limitation provisions
have been taken into account by Cahill & Nemeth in pricing the Products.
10.1 Under the Trade Practices Act 1974 ("Act"), where implied conditions
and warranties cannot be excluded, Cahill & Nemeth's liability for breach of such conditions and warranties (other than
a condition or warranty implied by section 69 of the Act) shall be limited, at Cahill & Nemeth's option, to (a) in the
case of goods, the replacement of the goods or the supply of equivalent goods; the repair of such goods; the payment of the
cost of replacing the goods or of acquiring equivalent goods; or the payment of the cost of having the goods repaired OR (b)
in the case of services, the supplying of services again; or the refund of the cost charged for the servicing.
11.1 Neither party shall be liable for any delay in performing any of
its obligations under these Terms and Conditions if such delay is caused by circumstances beyond the reasonable control of
the party so delaying, and such party shall be entitled to a reasonable extension of time for the performance of such obligations.
Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the party's reasonable
control: difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure, telecommunications failures
and disruptions, general unavailability of transport or breakdown in machinery/equipment.
12.1 Each party shall treat as confidential all information obtained
from the other pursuant to a Contract which is marked "confidential" or the equivalent or has the necessary quality of confidence
about it and shall not divulge such information to any persons (except to such party's own employees and then only to those
employees who need to know the same) without the other party's prior written consent provided that this clause shall not extend
to information which was rightfully in the possession of such party prior to the commencement of the negotiations leading
to the Contract, which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach
of this clause) or which is trivial or obvious. Each party shall ensure that its employees are aware of and comply with the
provisions of this clause. If Cahill & Nemeth shall appoint any sub-contractor then Cahill & Nemeth may disclose confidential
information to such sub-contractor subject to such sub-contractor giving an undertaking in similar terms to the provisions
of this clause. The foregoing obligations as to confidentiality shall survive any termination of the Contract.
13.1 In Territories where this is relevant, nothing in these Terms and
Conditions shall affect the statutory rights of a Customer dealing with Cahill & Nemeth as a consumer where such rights
cannot lawfully be excluded or superseded by contract. In the event of the conflict between these Terms and Conditions and
the statutory rights of the Customer, the statutory rights of the Customer shall prevail.
13.2 While Cahill
& Nemeth can at any time assign Sub-Contracts to any affiliate or related corporation in relation to a contract, neither
party shall assign or otherwise transfer any Contracts or any of its rights and obligations hereunder whether in whole or
in part without the prior written consent of the other.
13.3 If any particular provision of these Terms and
Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other
provisions of these Terms and Conditions and the remainder of the provisions in question shall not be affected thereby.
13.4
No forbearance, delay or indulgence by either party in enforcing the provisions of these Terms and Conditions shall prejudice
or restrict the rights of that party, nor shall any waiver of its rights operate as a waiver of any subsequent breach, and
no right, power or remedy herein conferred upon or reserved for either party, is exclusive of any other right, power or remedy
available to that party and each such right, power or remedy shall be cumulative.
13.5 All notices shall be
in writing and shall be sent to the address of the recipient set out in the Contract or applicable invoice, or such other
address as the recipient may designate by notice given in accordance with the provisions of this Clause. Any such notice may
be delivered personally or by first class prepaid letter or facsimile transmission and shall be deemed to have been served
if by hand when delivered, if by first class post 48 hours after posting and if by facsimile transmission when dispatched.
13.6 The headings to the clauses of these Terms and Conditions are for ease of reference only and shall not
affect the interpretation or construction of these Terms and Conditions.
13.7 These Terms and Conditions shall
be governed by and construed in accordance with the laws of New South Wales and shall be subject to the non-exclusive jurisdiction
of the courts of New South Wales.
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- End
Of Term & Conditions Of Sale - |
