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1.
Except as varied by agreement in writing signed by both parties these
conditions of sale shall apply in respect of all goods and services
supplied by Henleys Propellers & Marine Limited ("the company"). The term
"services" includes all labour, technical information, designs and advice
provided by the company. Note: The information that you supply on our
specification sheet is critical to the predicted propeller size and
estimated performance/engine load.
2.
Drawings, specifications and descriptive documents
Any technical information or advice given by the company shall remain the
exclusive property of the company and may not be copied or communicated to
a third party without the prior written consent of the company. Copyright
in all plans and other documents and in the works executed from them shall
remain the exclusive property of the company and may be used only for the
purposes for which they were supplied.
3.
Services and advice
All services provided by the company are provided in good faith on the
basis of the intended use of the goods on the assumption that such goods
will be used strictly in accordance with directions given by the company
or a suitably qualified marine engineer nominated by the company. All
Propellers are supplied based on the terms and guidelines indicated on the
Q/A sheets provided before customer confirmation.
4.
Prices
(a) All
prices for the supply of goods and materials shall be subject to
increase by the amount of any increase in costs to the company
including, foreign exchange fluctuations, taxes and duties, cost of
labour, materials and other manufacturing costs and any other
circumstances beyond the control of the company between the date of
quotation and the date of delivery.
(b) For
the supply of services, fees shall be charged either on a time basis or
on a fixed quote basis. The purchaser will pay the company for all job
related costs including disbursements, communication, copying, testing
and traveling expenses.
(c) All
prices are GST Exclusive unless otherwise stated. Prices are subject to
change without notice.
5.
Terms of payment
(a)
The terms of payment are net cash on the 20th day of the month following
that in which the goods or services are dispatched to the
purchaser. Interest may be charged on overdue accounts at the rate of 2%
per month. For non-account and Export customers, payment shall be made before
dispatch of goods and services.
(b) If a solicitor or debt collector is instructed by the company to
enforce or attempt to enforce any rights pursuant to these terms and
conditions of sale then the purchaser agrees to reimburse (with all monies
due) any liabilities, fees and disbursement as charged to the company as a
result.
(c) The company may at its discretion apply any payments it receives from
the purchaser in and towards the satisfaction of any indebtedness of the
purchaser to the company and it shall not be bound by any conditions of
qualifications that the purchaser may make in relation to such payments.
(d) For non-account customers, payment shall be made before dispatch of
goods and/or services.
6. Personal Property Securities Act 1999
(a) The
purchaser grants to the company a security interest in the goods and all
the purchaser’s present and after acquired property supplied by the
company and their proceeds and accessions to secure payment of the
purchase price of the goods and all outstanding debts and obligations of
the purchaser to the company.
(b) The
purchaser will provide such information, do such acts and execute such
further documents as in the company’s opinion may be necessary or
desirable to enable the company to perfect under the PPSA the security
interest created by these terms and conditions as a first priority
interest of with such other priority as the company may agree in
writing.
(c) The
purchaser will supply the company within 7 business days of written
request copies of all documents granting security interests registered
over the purchaser’s personal property. The purchaser authorises the
company as an agent to request copies of all documents granting security
interests registered over the purchaser’s personal property. The
purchaser authorizes the company as an agent to request any information
from any secured party relating to any security interest which is held
in any personal property which is or has been in the purchaser’s
possession or control.
(d) The
purchaser will immediately notify the company in writing of any change
in the Buyer’s name.
(e) The
purchaser agrees sections 114(a)(a), 116, 117(1)(c), 119, 120(2), 121,
125 to 127, 129, 131 to 133 of the PPSA shall not apply to these terms
and conditions or the security created pursuant to these terms and
conditions.
(f) The
purchaser waives the right to receive a copy of the verification
statement confirming registration of a financing statement or a
financing change statement relating to the security interest created by
these terms and conditions.
(g) The
purchaser must not create, or allow or permit the creation of, a
security interest (as defined in the PPSA) in any of the goods in favour
of any person other than the company without first obtaining the
company’s written consent, nor may the purchaser allow or permit the
creation of a lien over any of the goods.
7. Delivery
Delivery shall be deemed complete when the company gives possession of the
goods to a carrier for delivery to the purchaser, or as the purchaser has
directed. The company shall not be liable for any loss or damage whatever
due to failure by the company to deliver the goods (or any of them)
promptly or at all. The company reserves the right to deliver the goods
by installments and each installment shall be deemed to be a separate
contract subject to the same conditions as the main contract. Should the
company fail to deliver one or more installment, this shall not entitle
the purchase to repudiate the main contract.
8. Guarantees and warranties
No guarantees, warranties, representations or agreements made on behalf of
the company shall be binding on the company unless made in writing.
9. Twelve month warranty
Subject to the limitation of liability in clause 14, the company will
repair any defects in its workmanship arising within twelve months of the
completion of the work involved.
No claim
will be available under this warranty unless the company receives written
notice of the claim as soon as reasonably possible after the defect is
discovered nor will any claim be available if the defective work has been
modified or incorrectly maintained, installed or operated and that is the
cause of the defect.
If under
this warranty the company is required to repair any defect, the repair
will be carried out at such place as the company specifies and the
purchaser shall be responsible for shipment of the defective goods or
conveying the vessel to such place. The purchaser shall also be
responsible for all hard stand fees.
This
warranty shall not apply to any defective goods or components not
manufactured by the company and no warranties are given by the company in
respect of such goods or components. Where the manufacturer or supplier
of any such goods or components provides any warranty, the company (to the
extent that it is reasonably able to do so) will make such warranty
available to the purchaser.
In any
event, the company's liability under its warranty is limited to the
provisions of clause 14.
10. Returns
Claims for wrong or short deliveries of goods will only be accepted if
made within seven days of receipt of goods. Invoice details must
accompany any such claims. A fee of $25.00 will be charged whenever a
credit note is raised unless the credit is due to an error on the part of
the company.
11.
Risk
Risk shall pass to the purchaser when the goods are delivered. If the
purchaser requests and the company agrees to a delay in delivery, risk
shall pass upon the date of the purchaser's request for such delay.
12. Title
(a)
Title to any goods supplied by the company does not pass until all money
owing by the purchaser to the company has been paid in full.
(b)
Until the company has been paid in full for the goods, the purchaser
shall hold the goods as bailee and as agent for the company and the
purchaser shall store the goods in such a way that it is clear that they
are the property of the company.
(c) The
goods shall be stored in such manner that they will not deteriorate.
(d) The
purchaser irrevocably gives the company (or its agents) authority
without the necessity of giving any notice to enter the premises
occupied by the purchaser to remove any goods supplied by the company
and not paid for by the purchaser.
(e)
Where the goods or any of them are completely or partly attached to any
other equipment, vessel or structure, the company may disconnect the
goods for removal.
13. Default
(a) In addition to any other provision hereof, the purchaser shall be in
default if any of the following events shall occur:
(i) If the
purchaser fails to pay any amount due by the due date.
(ii) If the
purchaser fails to meet any obligation to the company.
(iii) If
the purchaser becomes insolvent.
(iv) If a
receiver, liquidator or official manager is appointed in respect of the
purchaser.
(v) If a
compromise arrangement with the purchasers creditors is made or likely
to be made.
(vi) If the
purchaser ceases or threatens to cease carrying on business.
(vii) If
the ownership or effective control of the purchaser is transferred, or
the nature of the purchaser’s business is materially altered.
(viii) If
the purchaser does or permits any act or thing likely to prejudice or
put at risk the goods or the company’s rights or interest (including its
security interest) in the goods.
(b) For the purposes of clause 13(a), a reference to the purchaser shall
include the Guarantor(s).
(c) If an event of default shall occur (notwithstanding that the company
may have waived some previous default by the purchaser) then:
(i) All
sums owing by the purchaser to the company shall become immediately due
and payable.
(ii) The
company may, without prior notice, enter the premises of the purchaser
or any other premises that the purchaser is authorised to enter and
retake possession of the goods and sell them without being liable in any
way to the purchaser. Furthermore, the purchaser shall indemnify the
company for all costs (including legal costs), claims by third parties
or whatsoever in retaking possession and selling the goods.
(iii) The
company may by notice in writing suspend or terminate the credit
account.
(d) Notwithstanding the foregoing, the company shall be entitled at any
time in its sole discretion and without notice to the purchaser to suspend
or terminate any credit account with the purchaser and the purchaser shall
forthwith deliver the goods to the company at its place of business or at
such other place as shall be agreed upon.
14.
Liability
(a) The
company shall not be liable for:
(i) Any loss of profits; or
(ii)
Any consequential, indirect or special loss; or
(iii) Damage, injury, cost or loss of any kind (except that covered by the
company's warranty), arising directly or indirectly from any breach of
the company's obligations to the purchaser however occurring including
any negligence on the part of the company.
(b)
Where the company is liable to the purchaser, unless otherwise agreed in
writing between the company and the purchaser, the maximum cost of any
liability of the company to the purchaser howsoever arising shall not
exceed the lesser of:
(i)
The contract price; or
(ii)
The value of the goods or services which are the subject of the claim.
15.
The guarantees contained in the Consumer Guarantees Act 1993 are expressly
excluded where the purchaser acquires goods or services from the company
for the purposes of a business.
16. Privacy
Act
The purchaser consents to the company making inquiries of third parties
with regard to the purchaser’s credit worthiness and receiving and
disclosing information in respect of the purchaser to such third parties
as deemed appropriate by the company. |
