(a) Control Logic Pty Ltd (ABN 14 611 620 234) (Control Logic, Us, We, Our) conducts the business of supplying (i) industrial, electrical and automation products, services and solutions; and (ii) safety services.
(b) Any equipment, goods or services supplied by Us (Goods and Services) to customers (Customer, You, Your) will be provided in accordance with these standard terms and conditions of sale (Terms and Conditions).
(a) You may order Goods and/or Services from Us by any available means, including by submitting an order form, purchase order or other written request to Us (Order). Your Order will constitute an offer by You to Us for Us to supply the Goods and/or Services to You. We may accept such offer by written notice or confirmation to You. We may accept or reject any Orders from You in Our absolute discretion.
(b) A binding agreement between Us and You (each a party and together the parties) for supply of Goods and/or Services on these Terms and Conditions (Agreement) will arise where (i) We have given written notice to You of acceptance of Your Order and agreed to supply the Goods and/or perform the Services in accordance with the preceding paragraph; or (ii) You make a payment to Us for the Goods and/or Services (including the payment of any deposit) that is accepted by Us. Where We have accepted Your Order, the Order may not be withdrawn by You without Our prior written consent.
(c) No other terms and conditions (including any terms and conditions which You provide to Us or seek to incorporate into this Agreement whether before or after We provide the Order is given) will be binding upon Us or form part of this Agreement unless We have expressly agreed to them in writing. This shall apply irrespective of whether such terms and conditions have been communicated by You to Us in any purchase order or other correspondence between You and Us.
(d) Publication of any materials by Us (including any catalogue, promotional material or marketing material) shall not constitute an offer for the supply of Goods and/or Services.
(a) All quotations by Us for the supply of Goods and Services (Quotations) shall be made subject to these Terms and Conditions. We may withdraw Quotations at any time. Any clerical, calculation, or typographical error revealed in Our Quotation shall be subject to correction.
(b) Unless specified otherwise any prices for Goods and/or Services: (i) will only be valid for a period of 30 days from the date of the Quotation; (ii) are given in Australian Dollars; (iii) are based upon costs and/or sale prices effective as at the date of the Quotation; (iv) are exclusive of GST, other taxes, charges and duties and any freight, insurance or delivery costs.
4. PRICE AND PAYMENT
(a) You must pay to Us any price, charges or fees in respect of the Goods and Services as may be published by Us from time to time or as may be otherwise agreed between the parties in writing (Price).
(b) Where We specify handling, packaging, crating, cartage, freight, insurance, travel and/or delivery charges (Charges), such Charges are estimates only. Charges are payable to third parties and We reserve the right to vary Charges at any time having regard to the amount actually due to third parties in connection with handing, cartage, freight, insurance, travel and/or delivery.
(c) Unless agreed otherwise, Goods will be made available for collection from Our premises which are located at 25 Lavarack Avenue, Eagle Farm QLD 4009 (Our Premises). Any Charges in connection with delivery to any other address will be payable by You.
(d) We reserve the right to adjust Our prices from time to time to reflect fluctuations in currency exchange rates.
(e) Prices are at all times subject to variation: (i) in accordance with increases and decreases in Our own internal costs of the Goods and/or Services or the prices of the manufacturers of the relevant Goods; and/or (ii) having regard to any cause beyond Our reasonable control. We reserve the right to change prices from time to time and update Charges to reflect the price of Goods and/or Services as applicable at the date of supply of the Goods and/or Services. In such circumstances, additional amounts may be payable by You. We will use reasonable endeavours to advise You of any variations in Price.
(f) Unless We agree otherwise in writing, You must pay Us within 30 days from the date of Our invoice(s) (Payment Terms). You must pay Us in accordance with any applicable Payment Terms. We may set off any amount owing to You against any amounts payable by You to Us under this Agreement.
(g) We may charge interest on any amounts owing by You to Us which are not paid within the Payment Terms. Such amounts shall accrue interest at the current overdraft rate as published by Westpac Banking Corporation from time to time. Interest will arise from the date that payment was due and will be calculated monthly in arrears. We may capitalise interest. We reserve the right to charge a reasonable administration fee for late payment.
(h) You shall not be entitled to withhold any amounts as a retention amount in respect of any Goods or Services.
5. IMPROVEMENTS AND CHANGES IN SPECIFICATION OF GOODS
It is the policy of each manufacturer of Goods for continuous improvement of their Goods. We reserve the right (but are not obliged) to make changes to Goods in connection with any element (including materials, dimensions, specifications and design) and to obtain Goods from different sources in Our absolute discretion. We may make such changes where We consider (acting reasonably) that the alternative Goods are substantially similar to or an improvement to the original Goods. Such changes may be made without notice to You and will not affect the validity of any Agreement.
Delivery shall mean the delivery of possession of the Goods, or completion and delivery of the Services being delivered hereunder to You at the delivery location agreed between the parties, and at the time and date for delivery, specified by You in the Agreement and agreed to by Us (Delivery). If no time and date for delivery is specified in the Agreement, We shall deliver the Goods or completed Services within a reasonable period of time.
7. RISK AND TITLE
(a) Title in the Goods will remain with Us until payment of the Price for the relevant Goods has been received by Us in cleared funds.
(b) Until legal and beneficial title in Goods passes to the You, You will hold the Goods as bailee for Us from Delivery and must store the Goods separately and in a manner to enable them to be identified and cross-referenced to Our invoices. We reserve the right to enter Your premises or the premises of any associated company or agent where the Goods are located (Premises) without liability to trespass or any resulting damage and retake possession of the Goods.
(c) Without limiting the generality of the preceding sub-clause, if You fail to pay any amounts owed to Us in accordance with the Payment Terms or are otherwise in default of these Terms and Conditions, We may or We may cause Our nominee to enter Your Premises without notice to You and We or Our nominee may repossess the Goods.
(d) For the purposes set out in paragraphs (b) and (c), You irrevocably grant Us and each of Our officers and agents (without the necessity of giving any notice) a licence to enter into and upon the Premises to send for, remove and take possession of the Goods without being liable to You or any of Your officers, employees, agents of contractors (Associates) for so doing.
(e) If the Goods are resold, or products manufactured using the Goods are sold, by You, You must hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold or used in the manufacture of the Goods sold in a separate identifiable account as the beneficial property of Us and shall pay such amount to Us upon request.
(f) Notwithstanding the provisions above, We shall be entitled to maintain an action against You for the Price and the risk of the Goods shall pass to the buyer at the earlier of the time at which the Goods: (i) are delivered to You; or (ii) are made available to You for collection.
(g) Where We repossess Goods in accordance with this clause, We may elect to refund to You any part-payment that may have been made for the Goods and/or credit Your account for the value of the Goods less any charges for recovery of the Goods.
8. ACCEPTANCE OF GOODS
You will be deemed to have accepted the Goods on the date that is 14 days after the date that the Goods were delivered to, or collected by, You.
9 PROVISION OF SERVICES
(a) We will perform the Services in a timely manner and in accordance with (i) these Terms and Conditions; (ii) all applicable laws; and (iii) to a standard generally followed or approved by relevant industries, contractors and suppliers in Australia with respect to the services similar to the Services.
(b) We will perform the Services under a professional indemnity policy of insurance.
(c) To the extent permitted by law and without limiting Your rights under the ACL, if We breach a term of the Agreement, then to the extent the law permits Us to limit Our liability, Our liability for any breach of a Warranty shall be limited, at the election of Us, to providing You with any one or more of the following remedies: (iii) in relation to Goods: (A) replacement of (or payment for the replacement of) the Goods; (B) supply of (or payment for supply of) equivalent Goods; or (C) the repair or correction of (or payment for repair or correction of) the Goods; or (iv) in relation to Services: (A) supplying the Services again; or (B) payment of the cost of having the Services supplied again.
10. YOUR OBLIGATIONS
When We or any of Our sub-contractors are required to perform any Services at Your premises, You must: (a) promptly give Us access to Your premises and to any relevant equipment to enable us to perform the Services; (b) ensure that there are adequate facilities made available for the performance of the Services; (c) comply with all applicable laws (including health and safety laws) and other applicable requirements in respect of such premises and their use; and (d) maintain adequate public liability insurance for those premises.
Where any supply made by Us is subject to GST, You will upon receipt of a valid tax invoice pay, in addition to any other consideration payable to Us, an amount equal to the GST on that supply.
12. AUSTRALIAN CONSUMER LAW
Under the Australian Consumer Law (ACL), consumers have certain rights which cannot be excluded, including guarantees as to the acceptable quality and fitness for purpose of goods and services. Nothing in these Terms and Conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the ACL) and which by law cannot be excluded, restricted or modified and clause 11 shall be read subject to this clause.
(a) We warrant that all (i) Goods ordered pursuant to these Terms and Conditions, will be: (A) of acceptable quality; (B) reasonably fit for their intended purpose; and (C) free from defects in material and workmanship; (Warranties), in each case, for a period of 12 calendar months from the earlier of the date of delivery or collection of Goods or supply of Services (Warranty Period).
(b) Written notice of any claim (a Warranty Claim) that Goods ordered pursuant to these Terms and Conditions do not comply with the Warranties must be given by You promptly (and in any event within 30 days of the date You first become aware or should have become aware that the Goods are properly the subject of a Warranty Claim).
(c) The Warranties are in lieu of and exclude, to the maximum extent possible at law, all other guarantees and warranties, express or implied, arising by operation of law or otherwise. The Warranties do not apply to the extent that the non-conformance is due to: (i) normal wear and tear; (ii) the Goods, having been subject to neglect, accident, contamination, damage, misuse or improper installation, removal, maintenance or application by You; or (iii) any alteration, modification, repairs or attempts to correct a defect in the Goods which are made by persons that have not been authorised by Us to do so.
14. CHANGES AND VARIATIONS
Either party (the Amending Party) may request a change to the other party (the Approving Party) of the Goods or Services required under the Agreement, by giving a written request to the Approving Party (Change Request) in which case the Approving Party must as soon as reasonably practicable, but in any event no later than fourteen (14) days after receipt of the Change Request, provide the Amending Party with a notice setting out (i) whether or not either party is able to comply with the Change Request, (ii) any change to the price by either party, and/or (iii) any changes to the time for delivery of the Goods and or performance of the Services by Us (Change Notice). Within seven (7) days after receipt of a Change Notice the Amending Party shall either approve the Change Notice by signing and returning it to the Approving Party, or notify the Approving Party that it does not wish the Approving Party to implement the Change Notice. If the Amending Party approves the Change Notice, upon receipt of the signed Change Notice by the Approving Party, the Goods or Services will be deemed to be amended in accordance with the signed Change Notice. No changes to the Agreement shall be binding unless agreed in accordance with this clause 14.
(a) We reserve the right to inspect any Goods which You consider are non-conforming. We will not accept liability for any costs of any inspection of, work on or other costs in connection with such Goods unless We have given Our prior written consent.
(b) Unless We agree otherwise in writing: (i) the place of inspection for any Goods shall be at Our premises; and (ii) You will be responsible for the costs and expenses of returning any Goods to Us for the purposes of any inspection. If We agree to pay any costs for return of Goods, We reserve the right to select the method of transport used for any returns.
(c) Goods will not be accepted for credit unless prior written agreement has been made by both parties. Acceptance by Us of Goods returned does not imply an agreement by Us to issue a credit note for the Goods. We will only issue a credit note for Goods once We have determined that the returned Goods are non-conforming.
(a) Subject to the following sub-clause, We will use reasonable endeavours to deliver the Goods and/or supply the Services within agreed timeframes for delivery.
(b) We will not be liable for any delay or failure to perform Our obligations if such failure or delay has been caused by (i) an act or omission by You or Your contractors, employees or agents; (ii) a Change Request issued under clause 14; or (iii) is due to an act, omission or circumstance over which We could not reasonably have exercised control (Delay Event). We will notify You as soon as practicable and within 5 days after that We become aware of the Delay Event. The performance of Our obligations under this Agreement will be suspended for the period of the delay due to the Delay Event. If the Delay Event is caused by the circumstances listed in (i) and (ii) or this clause, You will pay us Our reasonable expenses incurred due to the delay. If a Delay Event exceeds 30 days, We may terminate this Agreement immediately on giving written notice to You. If We give such notice to You: (a) We will refund amounts previously paid by You under this Agreement for which no Goods or Services have been provided; and (b) You must pay Us for Goods supplied and actual costs incurred in relation to Services rendered or costs and expenses incurred by Us prior to such termination.
(c) Under no circumstances will We be liable to pay You liquidated damages for any reason whatsoever.
We may refuse to deliver Goods or supply Services to You and/or otherwise withhold supply of Goods and/or Services to You and/or may terminate the Agreement if You: (a) are in default of the Agreement (including any payment obligations); (b) fail to meet Our credit requirements or are in breach of any terms and conditions of any credit agreement You have entered into with Us; or (c) enter into liquidation or administration, are adjudged bankrupt, become insolvent or are otherwise unable to pay Your debts as and when they fall due.
a) You indemnify and hold harmless Control Logic against any liabilities, claims, actions, suits, proceedings, losses, damages, costs, fees and expenses (Claims) in connection with Our performance or otherwise of any obligations under these Terms and Conditions to the extent that such Claims have been caused by or contributed to by You or any of Your officers, employees or agents.
(b) We shall not be liable to You for loss of profits, loss of use, loss of revenue, loss of business, loss of opportunity, loss of production, loss of contract, loss of goodwill, or liability for any other consequential or indirect loss of any nature whatsoever, including without limitation liabilities, losses, damage, damages, penalties, fines, taxes, judgments, costs and legal and other expenses.
19. DISPUTE RESOLUTION
Either party may require any dispute between the parties arising out of or in connection with this Agreement (Dispute), which has not been resolved within 14 days, to be referred to the senior management of the respective parties. If within 28 days of such referral, a resolution of the Dispute has not been achieved then either party may commence court proceedings. Notwithstanding the existence of a Dispute, or the undertaking of the dispute resolution steps set out in this clause, each party must continue to perform its obligations under this Agreement. The provisions of this clause shall not limit or affect the rights of either party to apply to the court at any time for any interim or preliminary relief in respect of the Dispute.
20. INTELLECTUAL PROPERTY RIGHTS AND MATERIALS
(a) Any information, documents or other materials We provide to You in connection with the Services (Our Materials) and any intellectual property rights (including copyright) comprised in Our Materials will remain the property of Us and/or Our third party licensors. You must not modify, copy, reproduce, re-publish or distribute Our Materials in any way except with Our express prior written consent. Our Materials contain information of a general nature only. Any information or data contained in Our Materials is not intended to replace or serve as a substitute for any professional consultation or service and must not be relied upon as such.
(b) You warrant to Us that You are authorised to provide any information, designs, documents or other materials (Your Materials) that You provide to Us. You warrant to Us that You are the owner or licensee of any intellectual property rights comprised within Your Materials and that You are authorised to provide such materials to Us. You grant Us an irrevocable, perpetual, worldwide, royalty-free licence to use Your Materials for the purpose of delivering Goods and/or Services to You. You indemnify and hold Us harmless against all Claims arising in connection with Our use of Your Materials.
We may collect information about You and/or Your associates in connection with the performance of this Agreement and the Services. We may not be able to perform the Services if all the information requested by Us is not provided or is inaccurate. Information collected and held about You and Your associates may be used by Us in connection with the performance of Our obligations under this Agreement (including provision of the Services). We may disclose such information to Our related bodies corporate and contractors for the purposes of performing the Services. Under the Privacy Act 1988 (Cth), individuals have rights of access to, and correction of, their personal information. We will comply with the Privacy Act 1988 (Cth) and any applicable regulations and codes in connection with the collection and use such information.
22. PERSONAL PROPERTY SECURITIES ACT
You acknowledge that these Terms and Conditions constitute a security agreement for the purposes of section 20 of the Personal Property Securities Act 2009 (Cth) (PPSA) and that a purchase money security interest exists in all Goods (and their proceeds) supplied by Us to You pursuant to these Terms and Conditions. To the extent permitted by law, You waive any rights to receive any notice or statement under Part 4 of the PPSA.
23. GENERAL PROVISIONS
(a) The Terms and Conditions (as may be amended from time to time in writing): (i) are governed by the law in force in Queensland and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland; (ii) together with any applicable credit terms and other terms to which We have expressly agreed constitute the entire agreement between the parties in relation to the Goods and Services and supersede all other terms and conditions issued by You otherwise than in accordance with this Agreement; and (iii) do not create a relationship of principal and agent, joint venture, partnership or fiduciary relationship between the parties.
(b) Other than as permitted by these Terms and Conditions, any variation of this Agreement must be in writing signed by both parties.
(c) You must not assign, transfer or novate this Agreement or any rights or obligations under this Agreement, without the prior written consent of Us. You authorise Us to sub-contract the provision of any of the Services as We may require in Our absolute discretion from time to time and at any time.
(d) Neither party may rely on the words or conduct of the other party as a waiver of any right unless that waiver is in writing and signed by the party granting the waiver.
(e) To the extent that any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. In the event this is not possible, the clause (or where possible, the offending part) is to be severed from this Agreement without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses as the case may be) which will continue in full force and effect.
(f) In this document: (i) a reference to a clause is a reference to a clause of this document; (ii) clause headings are inserted for convenience only and do not form part of this document; (iii) including and includes are not words of limitation; and (iv) the singular includes the plural and vice-versa.
(g) All notices given in connection with these Terms and Conditions shall be given in English and in writing and may be given by personal delivery, certified mail, e-mail, facsimile or any other customary means of communication to the party’s address, as notified. Notices given pursuant to this these Terms and Conditions shall be effective (i) (in the case of delivery by hand) on delivery; (ii) (in the case of prepaid post) on the second business day after the date of posting; (iii) (in the case of e-mail) when the e-mail and any attachment comes to the attention of the addressee; and (iv) (in the case of facsimile) on receipt of a transmission report confirming successful transmission.