Trading Terms and Conditions
1. General
These are the Terms and Conditions on which Boval Engineering Pty Ltd (herein called “the company”) is willing to trade with you. Any variation to these terms and conditions must be in writing and signed by an authorised officer of Boval Engineering Pty Ltd.
2. Definitions
- “Application” means the application by the customer to Boval Engineering Pty Ltd for commercial credit.
- “Customer” means the person placing the order with Boval Engineering Pty Ltd.
- “Goods” means any goods, products, services or material to be supplied by Boval Engineering Pty Ltd.
- “Order” is defined in clause 3(a).
- “Order Acknowledgement” is defined in clause 3(b).
3. Orders, Order Acknowledgement and Contract
- An order or an offer to purchase can be made by the customer preferably in hard copy or electronic form.
- An order is accepted when the customer receives from the company an order acknowledgement in hard copy or electronic form or delivery of goods.
- When an order is accepted by an order acknowledgment the contract will be wholly documented by any specific term(s) agreed in writing, the order acknowledgement and these terms and conditions.
- Previous dealings between the company and the customer shall not have any effect on the contract, trade custom or trade usage is superseded by the contract and shall not be applicable to the interpretation of the contract.
- A contract constitutes the entire agreement between the company and the customer with respect to the goods supplied under the contract, all prior negotiations, proposals and correspondence are superseded by that contract and these terms and conditions will prevail over the customers terms and conditions of purchase (if any).
4. Price
The purchase price will be the price shown on the company’s quotation (if any) or invoice, notwithstanding any provision in the contract, the company may increase the price of goods after an order acknowledgement and prior to delivery of the goods if the price increase results from an increase in the price of any inputs which comprise part of the goods and/or any new transaction taxes that come into existence after the effective date of these terms and conditions.
5. Delivery
The company will make all reasonable efforts to have the goods delivered to the customer or his designated agent as agreed between the parties (or if there is no specific agreement that at the company’s reasonable discretion), but the company shall not be liable for (a) any failure to deliver or delay any delivery for any reason: or (b) any damage or loss due to unloading or packaging or (c) damage to property caused upon entering premises to deliver the goods. Any costs incurred by the company due to any failure by the customer to accept the goods at time of delivery will be reimbursed by law. The company will be under no obligation to accept goods returned for any reason.
6. Payment
Payment for the goods must be made in full (without any set off) and received by the company by the last business day in the month following the month of delivery, (Net 30 Days) unless otherwise agreed to in writing.
Payment is only received by the company when it receives cash or when the proceeds of other methods of payment are credited and cleared to the company’s bank account.
7. Title and Related Matters
- The legal and equitable title to the goods will only be transferred from the company to the customer when the customer has met and paid all that is owed to the company on any account whatsoever.
- The customer acknowledges that until the customer has met and paid all that is owed to the company on any account whatsoever, the customer holds the goods as bailee for the company and that a fiduciary relationship exists between the customer and the company.
- If the customer defaults, in addition to clause 8(b) the company may take possession of the goods wherever the goods are located and the customer agrees that representatives of the company may enter upon the customer’s premises for that purpose.
- Notwithstanding the above (and upon agreement between parties) the company may require the customer to pay for goods not yet manufactured or delivered.
8. Default
The Customer will be in default if:
- the customer breaches the terms and Conditions.
- payment for the goods has not been received by the company by the due date of payment.
- the customer being an individual commits an act of bankruptcy or becomes an insolvent under administration.
- the customer being a body corporate becomes an externally administered body corporate or has an application for winding up filed against it.
- the company forms an opinion that the customer’s credit worthiness or credit standing alters from that indicated in it’s application.
- If the Customer Defaults, the company may:
- • Refuse supply of goods.
- • Claim the return of any goods in the customer’s possession.
- • Without notice withdraw credit facilities.
- • Without notice make all monies owing to the company due and payable immediately.
9. Credit
- The company may grant the customer credit upon the terms and conditions on the basis of the application and such other documents and information as may be regarded by the company.
- Until the company grants the customer credit by notice in writing the company will only supply goods to the customer on the basis of cash in advance.
- The granting of credit does not oblige the company to extend any particular amount of credit to the customer.
- The customer must give the company notice in writing immediately there is any change in the shareholding or ownership of the customer or any material change in the customer’s financial position.
10. Interest
Interest at the rate fixed under the Penalty Interest Rates Act 1983 will be charged on any amounts unpaid at the expiry of thirty (30) days after a bill of costs is sent to you.
11. Force Majeur
The company is not liable for failure to perform the contract to the extent and for so long as the performance is prevented or delayed because of:
- Circumstances outside the company’s control
- Failure of the company machinery: or
- Failure of a supplier to the company.
12. Intellectual Property
- The customer warrants to the company that all documents provided by the customer are accurate and that the company is entitled to use all such documents for the purpose of the contract and that such use does not infringe any third party’s intellectual property rights.
- The customer indemnifies the company against all claims and all losses and damages incurred by the company as a result of documents provided by the customer to the company for the purposes of or in the coarse of the supply of the goods breaching a third party’s intellectual property rights.
- If the customer receives any confidential information from the company the customer may not use or disclose such information unless it receives the prior written consent of the company, such information enters the public domain (other than as a result of a breach of this paragraph) or the use or disclosure is required by law.
13. Limitation of Liability
- Subject to clause 14 (a) the company’s liability to the customer (and any party claiming through the customer against the company) for any claim or loss or damages (including legal expenses) made in connection with the contract, for contract, tort, (including negligence) under statute, in equity, or otherwise shall be as follows:
- if the company is in breach of a contract the company’s liability is strictly limited to: (1) for goods, products or materials the cost of replacement of the defective goods as soon as reasonably practicable, or the repair of the defective goods or the repayment (or allowance) of the invoice price of the defective goods at the option of the company, (2) for services, to the provision of the services again or payment of the cost of having the relevant services provided again at the option of the company.
- The company’s liability for breach of a contract does not extend beyond the defective goods to any other goods that are part of an order or otherwise.
- Where loss or damage is not recovered by subparagraph 13(a), the company is not liable to the customer under statute, in equity, or in tort (including negligence or otherwise) for any loss or damage to a person or property arising from or caused in way by the goods.
- The company shall not be liable for any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the goods.
- “Indirect”, special or consequential loss or damage includes: (1) any loss of income (2) any loss of goodwill or reputation (3) any loss of value of intellectual property.
- Any claim by the customer in respect of defective goods and /or damaged goods must be made in writing within fourteen (14) days of the delivery of the goods.
- The company’s obligations in the event of paragraph 13(a) applying do not include:
- The cost of removal of defective goods.
- The cost of installation of replacement for defective goods.
- Defects in goods caused by improper installation.
14. Representation and Fitness for Purpose
Accept as expressly provided to the contrary in the contract, all representations, warranties, terms and conditions in relation to the goods (whether implied or otherwise ) are hereby excluded to the maximum extent permitted by law.
The customer agrees that if it is aware (or should be aware) that the goods, the subject of an order, are for a particular purpose (including, but not limited to, use as a component part of another product) or are required to possess special or uniform characteristics the customer will clearly specify that purpose or those characteristics in any such order.
15. Return of Goods
Acceptance of the goods by the purchaser shall be final and conclusive unless the company agrees in writing to the return of goods within fourteen (14) days of delivery.
16. Waiver
The company waives a right under a contract only by written notice that it waives that right. A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.
17. Assignment
The company may assign without notice to the customer. The company may assign to any person this document and any contract.
18. Costs
The customer may pay the company all costs and expenses incurred by the company in connection with the contract including legal expenses (on a solicitor—client basis), stamp duty and costs incurred in the recovery of monies owing by the customer to the company or in otherwise enforcing the company’s rights against the customer under the contract.