TERMS & CONDITIONS OF SALE
 
1.    Parties.  In these Terms and Conditions of Sale (“Terms”) the word “Seller” means Precision Light and Air Pty. Ltd., ABN 32 079 006 947 of 17 Sir Laurence drive Seaford Vic 3198 Australia, and the word “Purchaser” means the party placing an order, accepting a quotation from Seller to purchase goods or services, or otherwise taking delivery of goods or services from Seller.

2.    Precedence of Terms.  The Terms are binding and apply to the sale of all items and goods (referred to individually as “Product” and collectively as “Products”) and supply of services by Seller to Purchaser. Purchaser specifically agrees to be bound by these Terms and acknowledge that these Terms constitute the only applicable agreement between the parties unless the parties have expressly stated in writing otherwise in clear and unambiguous language. Purchaser shall be deemed to have agreed to these Terms upon acceptance of any quotation in writing, Purchaser’s issuance of a purchase order and/or delivery of Products and or services.

THESE TERMS TAKE PRECEDENCE OVER ANY TERMS PROPOSED BY PURCHASER, INCLUDING ANY TERMS IN ANY PURCHASE ORDER ISSUED BY PURCHASER, WHETHER ISSUED BEFORE OR AFTER THE ISSUANCE OF SELLER’S QUOTATION, ORDER CONFIRMATION, OR DELIVERY. ANY SUCH TERMS PROPOSED BY PURCHASER ARE REJECTED IN FULL AND SHALL BE OF NO EFFECT.

3.    Quotations and Products.  All quotations are valid for 30 days from the date of quotation, unless otherwise agreed by Seller in writing. Prior to Seller’s receipt of acceptance of any quotation, Seller reserves the right to change or withdraw, in writing, any such quotation. The quotation includes only those goods and services as specified therein. Delivery times quoted are approximate only. Purchaser acknowledges that Purchaser has undertaken Purchaser’s own independent investigations and due diligence with respect to the Product and are solely responsible for ordering the correct Product for Purchaser’s intended use including, but not limited to, determining the suitability, fitness for purpose, and compliance of the Product with applicable laws, safety requirements, and operational conditions. 

4.    Specifications and Drawings. All descriptive specification, illustrations, drawings, data, dimensions and weights contained in Seller’s catalogues and literature are typical only and are subject to change without notice.  These details do not form part of a quotation unless specified by Seller in writing. All drawing and technical documents delivered by Seller to Purchaser remain Seller’s property, and Purchaser may not improperly use, reproduce or otherwise disclose such materials to third parties without Seller’s prior written consent. 

5.    Feedback.  Purchaser may from time to time provide feedback to Seller with regard to the Product including, without limitation, identifying potential errors and improvements (Feedback). Feedback provided by Purchaser may be used by Seller to improve or enhance the Product and Purchaser hereby grant Seller a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, modify, make, have made, distribute, sell, offer for sale, display, perform, create derivative works, permit distribution and otherwise exploit such Feedback without restriction.

6.    Prices. Prices charged are the prices relevant at the date of despatch unless written arrangement has been made for price variation.  Where prices have been quoted on a quantity purchase, Seller reserves the right to re-negotiate the quoted prices, if the total quantity is varied. The prices quoted do not include GST and Government imposts unless specifically stated in writing in Seller’s quotation. The payment of these charges is to the Purchaser’s account. Unless otherwise specified, any prices quoted do not include transportation costs. Seller reserves the right to review prices without any prior notice. Further, Seller reserves the right to increase the price to cover additional costs incurred at the Purchaser’s request. 

7.    Taxes and Licences. All prices are exclusive of all sales, use, and excise taxes, duties, customs, tariffs, and other similar taxes or charges of any kind imposed by any governmental authority or quasi-governmental authority on any amounts payable by Purchaser. Purchaser shall be responsible for all such taxes and charges provided, however, that Purchaser shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets. Purchaser shall be responsible for obtaining any permit, consent or approval required in respect of the import, installation or use of the goods from any government department, local authority or other person or body having jurisdiction in the matter.

8.    Payment Terms. Where a credit account has been established with Seller, all terms are strictly net and are payable, in cleared funds, within 30 days (45 days for international purchasers outside of Australia) following date of invoice, unless stated otherwise in Seller’s quotation or agreed to in writing. Seller reserves the right to refuse extension of credit. All payments are to be paid by electronic funds transfer to the nominated bank account stated in the invoice. Time is of the essence with respect to payment of Seller’s fees by the deadline.

9.    Packing and Delivery.  Delivery dates provided by Seller are non-binding and time of delivery is not of the essence. Any quoted time for delivery shall be deemed to be an estimate only and no claim shall lie against Seller for failure to deliver within such time. Seller shall not be liable for any delays, loss or damage in transit. All Products will be delivered in packing to Seller’s normal standard practice. If requested by Purchaser and agreed by Seller, variation to this packing will be charged to Purchaser. Seller may, at Seller’s discretion, make partial shipments of Products. 

10.    Inspection. Where Seller’s standard delivery service is utilised, Seller will repair or replace the items within 2 days of notification of non-arrival or damage of Products. Purchaser must inspect the Products no later than 2 days after receipt (“Inspection Period”). Purchaser shall be deemed to have accepted the received Products unless Purchaser notify Seller in writing of any damaged Products during the Inspection Period, furnishing evidence or other documentation as required. Where Seller’s standard delivery service is utilised and the actual loss or damage has been confirmed, Seller will undertake to repair or re-build the system within the shortest practical time frame.

11.    Cancellation and Variation.   No order shall be cancelled without the consent of Seller and, in such cases, the Purchaser shall be liable to pay to Seller all costs and expenses incurred by Seller or Seller’s suppliers in fulfilling the order up to such date of cancellation. If an order is varied, then the variation must be accepted by Seller in writing and Seller shall be indemnified against any loss or damage incurred by Purchaser as consequence of such accepted variation.

12.    Returns. Purchaser shall not return any Product without Seller’s written prior consent. No goods will be authorised for acceptance of return and therefore for credit unless:

(a)    the request is made within 14 calendar days of receipt of the goods; and
(b)    Seller have given approval for the return of the goods; and
(c)    the goods are in “as new” condition;  and
(d)    the documentation accompanying the goods shows the original invoice number and date.

Seller reserves the right to charge a restocking fee of up to 50% of the original invoice price of the goods returned. Goods specifically manufactured for Purchaser’s requirements will not be accepted for credit, unless agreed to in writing.

13.    Access.  In respect of any work done on Purchaser’s premises or elsewhere other than at premises occupied by Seller, it shall, subject to any written agreement to the contrary, be the duty of the Purchaser to ensure that the conditions under which work has to be prepared, the layout, means of access, accessibility of the different parts of the subject matter being worked upon or handled and other material circumstances shall be suitable to Seller, failing which Seller shall be entitled to charge a reasonable increase in the price, having regard to the prevailing circumstances.

14.    Re-Export. Purchaser agrees that Purchaser will export or re-export the Product and all related technical information, documentation and materials, including technical data, to any country, person, entity or end user in violation of export control or data privacy laws, regulations or restrictions of any of the locations in which Purchaser has a business connection.

15.    Warranty:  Seller will repair or replace free of charge any goods or parts manufactured by it and shown to be defective by reason of faulty material or faulty workmanship by Seller, provided that:

(a)    such defect becomes apparent within 12 months from the date of delivery of the goods,

(b)    the goods have been used in accordance with Seller’s operating procedures and directions and, where the sale is the subject of a quotation, in the manner specified in the original quotation.

16.    The foregoing warranty is limited to the replacement or repair of the defective goods or parts thereof, and is in lieu of any other warranty or conditions either expressed or implied by law unless agreed otherwise in writing and signed by Seller.  No claim will lie against Seller under this clause unless written notification of an alleged defect is given to Seller within 14 days of such defect becoming apparent.  

The warranty set out above does not apply and to the fullest extent permitted by law Seller disclaims any liability where:

(a)    a defect arises as a result of a breach of obligations by Purchaser in these Terms; 

(b)    there has been any unauthorised installation, repairs, modifications, upgrades, maintenance or other servicing of Product occurs; 

(c)    a defect arises as a result of normal wear and tear, lack of proper maintenance, misuse, theft, neglect by Purchaser, Purchaser’s contractors or agents or accidents; 

(d)    the Product is not properly set up and configured in a manner set out in the documentation;

(e)    it relates to any item Seller did not manufacture, however, in the case where Seller is able to make a successful claim for a part Seller did not manufacture under a warranty given by the manufacturer, the benefit of that claim will be passed on to the Purchaser.

17.    No oral or written information or advice given by Seller will increase the scope of the express warranties or create any new representations, warranties or conditions. Subject to any statutory warranties that cannot be excluded, except as expressly set forth above, Seller makes no warranties or representations, express or implied, relating to the Product or any services.

18.    Title.  Seller specifically retains and reserves legal and beneficial ownership in all Products supplied until such time as all outstanding accounts in respect of those Products have been paid in full, cleared funds and without any deduction or set off. The Purchaser may sell the goods to a third party in the ordinary course of the Purchaser’s business and deliver them to the party prior to payment in full of the purchase price to Seller provided that where the Purchaser is paid for the goods by that third party the Purchaser shall hold a proportion of the third party’s payment equal to the amount owing by the Purchaser to Seller in respect of the goods on trust for Seller and shall pay any such amount held on trust into a separate bank account so as to differentiate the money held on trust for Seller from other money owned or held by the Purchaser.

19.    PPSA. Prior to title passing, Seller may register a security interest under the Personal Property Securities Act 2009 (Cth) (PPSA) in relation to the Products and any proceeds arising in respect of any dealing in the Products. To the extent permitted by law, Purchaser waive its rights or entitlements to any verification statements or other notices or communications that may be necessary, required or desirable under the PPSA.

20.    Repossession. If for any reason whatsoever the Purchaser fails to make full payment to Seller of any moneys due then Seller or its agent may without notice resume possession of the goods wherever they are located, including entering any premises occupied or controlled by the Purchaser where the goods are located, to remove such goods, and resell them without prejudice to any other rights of Seller. Any costs incurred by Seller in the removal and/or subsequent sale of such goods will be borne by the Purchaser.

21.    Recovery of Expenses. The Purchaser will pay to Seller, in addition to all other sums required to be paid by the Purchaser, all legal and other expenses incurred by Seller in demanding, collecting any moneys due from the Purchaser and all legal and other expenses incurred by Seller in removing and/or reselling by legal process or otherwise, the goods for which payment has not been made by the Purchaser and to the extent part payment has been made offsetting said expenses against the part payments.

22.    Limitation of Liability and Indemnity. Purchaser assumes all risk and liability for loss, damage and/or injury to persons or to property arising out of the transportation, storage or use of the Products. Further, Purchaser holds harmless and indemnifies Seller from all claims made against it by a person or persons for loss, damage and/or injury in connection with Purchaser’s transportation, storage, and/or use of the Products. To the maximum extent permitted by law, the Products, services and/or anything else provided to Purchaser by Seller and anything generated by the Products are delivered “as is” and, except for the warranty above, are not warranted to (i) be error-free; (ii) operate without interruption (iii) be compatible with any products not supplied by Seller; or (iv) meet Purchaser’s requirements; and Purchaser accepts the entire risk as to the quality, performance, reliability, accuracy and results of the Products without any warranty of any kind, express or implied, by statute or otherwise. 

(a)    To the maximum extent permitted by applicable laws, under no circumstances will Seller be liable for any consequential, indirect, special, punitive, exemplary or incidental damages, whatsoever, whether foreseeable or unforeseeable, whether notice has been provided by Purchaser as to the proposed use of the Products or services. Foregoing exclusion of liability applies irrespective of whether such loss is based on a claim by Purchaser or a third party for breach of warranty, negligence, breach of contract or breach of statutory duty or otherwise, including but not limited to, claims for goodwill, profits, use of money, anticipated savings, stoppage of other work or impairment of other assets arising out, except only in the case of personal injury where and to the extent that applicable law requires such liability. Each foregoing exclusion or limitation is intended to be a separate and severable exclusion. 

(b)    Purchaser agrees that Seller’s aggregate liability to Purchaser in connection with any claim, action or proceeding against Seller or any of its directors or officers is strictly limited to the total amount paid by Purchaser for the specific Product the subject of the claim.

(c)    To the extent that limitations and exclusion in this clause conflict with a law in an applicable state or jurisdiction, the limitations and exclusions shall be read down to the minimum extent necessary required to comply with the relevant law.

23.    Miscellaneous. These Terms constitute the complete agreement between the parties with respect to the Product and supersede all other agreements, proposals, communication or advertising, oral or written, signed or unsigned unless the parties have mutually agreed in another document signed by an officer or director of the party that states in clear and unambiguous language that a term or the terms of that other document prevails, supersedes and/or replaces these Terms (or parts hereof). Purchaser agrees that Purchaser’s order of the Product is neither contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Seller regarding future functionality or features. If any provision of the Terms is held unenforceable or in conflict with the laws of a relevant jurisdiction or be invalid then it shall be read down to the minimum extent necessary to render it enforceable and valid and, if incapable of being read down, it will be severed from the remainder of these Terms which shall then be interpreted so to give full effect to the purpose or intent of the parties in entering into the same, and the remaining provisions of these Terms will remain in full force and effect. Failure or delay on the part of either party to exercise any right, power, privilege or remedy hereunder will not constitute a waiver thereof. A waiver of default will not operate as a waiver of any other default or of the same type of default on future occasions. No failure to exercise and no delay in exercising, any right, power or remedy by a party will operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on any party unless made in writing. Each of the parties hereby agrees to execute and procure the execution of all such further documents and do all such things as may be reasonably desirable to give full effect to the provisions of these Terms and the parties’ intent as evidenced herein. If Purchaser is entering into the Terms on behalf of an entity (for example, business, partnership, company) Purchaser represents and warrants that Purchaser has been duly authorized to enter into the Terms on behalf of that entity.

24.    Governing Laws:  These Terms are to be governed by, and construed in accordance with the laws of the State of Victoria, Australia without giving effect to any choice of law rules. Purchaser hereby irrevocably agrees that the sole and exclusive jurisdiction and venue for any litigation arising from or relating to the Terms or the subject matter hereof shall be in an appropriate federal or state court in the state of Victoria, Australia.