TERMS AND CONDITIONS OF SALE - FOR THE SUPPLY OF GOODS AND SERVICES
In these Conditions of Sale the following definitions apply:
Communications or notice in writing includes any form of electronic communications.
Conditions of Sale means these terms and conditions.
Contract means any contract between NHP and a Customer for the sale and purchase of Goods and/or Services.
Customer means a person(s) or entity who places an Order, with NHP, for Goods and/or Services to be provided by NHP to the Customer, and/or whose Order is accepted by NHP. A reference to a Customer includes that Customer's administrators, successors, and permitted assigns.
Goods means any goods supplied, or to be supplied, by NHP, to a Customer, and includes their packaging and any replacement goods supplied under these Conditions of Sale.
GST means goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Includes means the word in any form and is not a word of limitation.
Incoterms is a reference to the 2010 publication of these terms and any subsequent iteration.
Legislation or Regulation includes any re-enactment, amendment or substitution of such legislation or regulation.
NHP means NHP Electrical Engineering Products Pty Ltd (ABN 84 004 304 812) of 43-67 River Street, Richmond, Vic 3121, or its successors and permitted assigns.
Manufacturer includes the manufacturer of the product, NHP's Supply Line Partner, NHP's supplier and NHP's subcontractor as appropriate.
Order means an order presented to NHP by a Customer for supply of Goods and/or Services.
Party or Parties means NHP and/or the Customer, as the context requires, as the parties to these Conditions of Sale.
PPSA means the Personal Property Securities Act 2009 (Cth).
Publications includes price lists, brochures, catalogues, electronic media and other advertising material.
Quotation means a quotation made by NHP for supply of Goods and/or delivery of Goods and/or provision of Services.
Services means any services supplied or to be supplied by NHP to the Customer, and includes any technical advice or assistance, repair or maintenance services, training, or labour provided by NHP, or its technical representatives, in connection with Goods.
Supplier includes the manufacturer of the product, NHP's Supply Line Partner, NHP's supplier and NHP's subcontractor as appropriate.
Written or in writing includes all modes of presenting or reproducing words, figures and symbols in a tangible and visible form.
These Conditions of Sale apply to every sale, hire, or licence arrangement, for the supply of Goods and/or provision of Services, by NHP, to a Customer. Supplemental conditions may also apply to engineering, technical assistance, services, training, the supply of goods for projects (with or without commissioning and/or installation) and any supply and/or delivery outside of Australia.
By submitting an Order to NHP for Goods or Services to be provided to the Customer by NHP, the Customer:
- acknowledges and agrees that any supply of Goods and/or Services by NHP will be subject to these Conditions of Sale; and
- submits an offer to NHP, to acquire Goods and/or Services from NHP, in accordance with these Conditions of Sale, to the exclusion of all other terms and conditions.
A Quotation from NHP is for information purposes only, is not an offer to form a Contract, and does not impose any obligation on NHP to sell or provide Goods and/or Services at the prices described in the Quotation.
NHP will use all reasonable endeavours to state accurately the price of Goods and Services or delivery times applicable at the time of making the Quotation. Quotations are issued on an errors and omissions excepted basis and NHP may correct any clerical errors or omissions, whether in computation or otherwise in any quotation, acknowledgment or invoice
Goods which are quoted or indicated as ex-stock are subject to prior sale and any delivery time quoted is made without commitment.
A Quotation is valid and open for acceptance by the Customer, unless otherwise stated in the Quotation, for a period of 30 days from the date of Quotation. After 30 days, or after any other period stated in the Quotation, any price or contractual delivery dates, arrangements or other details, stated in the Quotation, are subject to change and must be confirmed in writing by NHP before NHP will be bound to those prices, dates, arrangements or other details.
The price stated in any Quotation is only for the supply of those Goods or Services specified in the quotation, and does not, unless otherwise specified in writing by NHP, apply to any lesser or greater quantities of the Goods or Services, or to Goods or Services of a different type, or to delivery periods extending beyond NHP's standard delivery timeframes.
2. ORDERS AND FORMATION OF AGREEMENT
Any Order placed by a Customer constitutes an offer by the Customer to buy Goods at the prices described in the Order. NHP may, in its own absolute discretion, accept or reject any Order. Unless or until NHP accepts an Order, a Contract is not formed. A Contract will be formed only once NHP accepts an Order placed by a Customer. Any Contract formed shall include the Quotation, these Conditions of Sale and if applicable the supplemental conditions which apply to engineering, technical assistance, services, training, the supply of goods for projects (with or without commissioning and/or installation) and any supply and/or delivery outside of Australia.
3. ENTIRE AGREEMENT
Unless otherwise agreed in writing and signed by an authorised Officer of NHP, the Quotation, these Conditions of Sale and if applicable, the supplemental conditions which apply to engineering, technical assistance, services, training, the supply of goods for projects (with or without commissioning and/or installation) and any supply and/or delivery outside of Australia, override and exclude any terms or conditions in, or referred to in, any negotiations or course of dealing between NHP and the Customer, or set out or referenced in the Customer's order or other correspondence.
For the avoidance of doubt, when a Customer places an Order with NHP for NHP to supply and deliver Goods and/or Services, the Customer accepts that such supply and delivery of Goods and/or performance of Services will be made to the exclusion of any other Customer terms and conditions, save and except only if such other terms and conditions have been accepted, in part or full, by NHP in writing which is signed by an authorised Officer of NHP. NHP's failure to object to Customer's additional or conflicting terms accompanying any Order will not operate as a waiver of any terms in this agreement.
If there is any inconsistency between the provisions of the Quotation, these Conditions of Sale and the supplemental conditions which apply to engineering, technical assistance, services, training, the supply of goods for projects (with or without commissioning and/or installation) and any supply and/or delivery outside of Australia, then the Quotation will prevail to the extent of the inconsistency.
In all other respects these Conditions of Sale constitute the entire agreement between NHP and the Customer in relation to the Goods and/or Services requested in the Order.
4. VARIATIONS TO SUPPLY OF GOODS AND/OR SERVICES
At any time after a Customer has placed an Order, and prior to shipment of the Goods and/or performance of the Services, a Customer may by notice in writing, request that a supply of Goods and/or Services be cancelled or varied.
NHP may reject or accept any such request by a Customer. If NHP accepts a request for variation, NHP may impose adjustments to price, scheduling and any other factors relative to the variation.
NHP may reject any request for a variation, especially where to do so would be, in NHP's absolute discretion, unsafe, technically inadvisable or inconsistent with established engineering or quality guidelines and standards, or incompatible with NHP's own and/or the Manufacturer's design or manufacturing specifications or capabilities.
If the Customer requests, prior to shipment, that a supply of Goods and/or Services be cancelled, and the cancellation is accepted by NHP, then NHP may charge the Customer reasonable cancellation and restocking fees, including reimbursement for NHP's direct costs incurred in connection with the cancellation. NHP may charge cancellation fees associated with Goods ordered on a manufactured/assembled to order and/or indent-only basis up to the actual selling price of the Goods.
Any Goods which are non-stock or which are manufactured/assembled to order or otherwise manufactured and/or assembled to the Customer's specific requirements will be specially procured on the Customer's behalf. Once the Customer has ordered these Goods, NHP may refuse any subsequent purported cancellation or request for variation made by the Customer, and, once delivered, the Customer may not return these Goods or cancel the Order.
In fulfilling any Order, NHP may substitute Goods and may provide a latest superseding, revised or equivalent Goods having, in NHP's absolute discretion, comparable form, fit and function.
All prices shown in any NHP publications including price lists, brochures, catalogues, electronic media and other advertising material are:
5.1. recommended selling prices only and there is no obligation on the part of any reseller to maintain these prices, and
5.2. subject to amendment and adjustment by NHP of such prices; and
5.3. issued on an errors and omissions excepted basis, and NHP may correct any clerical errors or omissions, whether in computation or otherwise in any quotation, acknowledgment or invoice.
At any time prior to formation of a Contract all prices contained in NHP's advertising material, brochures or in any Quotation, are subject to change without notice and all Orders are accepted by NHP on the condition that they will be invoiced at the prices applying at the date of formation of the Contract, or the date of despatch of the Goods from NHP's premises, as NHP determines in its absolute discretion.
Unless otherwise specified in writing by NHP, Goods are sold on an ex warehouse/ex works (EXW Incoterms) basis, and prices do not include any transport, freight, handling or storage costs. Where the Customer requires freight and insurance to be prepaid, all expenses will be to the Customer's account at cost.
NHP imposes a minimum order value, excluding GST delivery and freight charges, to all orders accepted and supplied by NHP.
NHP may also impose a minimum quantity or value for Orders of certain Goods or Services which NHP will notify to the Customer for its acceptance prior to NHP accepting its Order.
6. PERFORMANCE - NHP RECOMMENDS CUSTOMER VERIFY AND VALIDATE
Any performance figures given or represented by NHP for Goods and/or Services are based on NHP's and/or the Manufacturer's experience, and are figures that NHP and/or the Manufacturer expects to obtain on testing. Performance may vary due to a wide variety of environmental and operational circumstances arising when the Customer uses the Goods and/or Services, which may result in variation in performance figures achieved by the Customer.
Following submission of a quotation or tender, NHP is not required to comply with any additional standards, specifications, rules or other requirements subsequently proposed by the Customer. If such additional standards, specifications, rules or other requirements are proposed by the Customer, NHP may decline to proceed with any resultant order or vary the supply including the price.
7. DRAWINGS - NHP RECOMMENDS CUSTOMER VERIFY AND VALIDATE
NHP will comply with any specifications and drawings referred to in the Customer's Order only if such specifications and drawings have been produced to NHP prior to acceptance of the Order and NHP has agreed, in writing and signed by an authorised Officer of NHP, to such particular compliance.
If the Customer requests NHP to provide certified drawings, NHP may, at its discretion, provide such certified drawings at the Customer's reasonable expense. In the event that NHP provides such drawings, NHP recommends that in order to account for potential variations in environmental and operational circumstances in which the Goods and/or Services may be used, the Customer undertake independent assessment and verification of all such drawings.
All descriptive specifications, illustrations, drawings, data, dimensions and weights furnished by NHP or otherwise contained in NHP's publications including price lists, brochures, catalogues, electronic media and other advertising material of NHP and/or the Manufacturer are approximate only and are intended to be by way of general description of the Goods and shall not form part of the Contract between NHP and the Customer, unless otherwise specified by NHP in writing and signed by an authorised Officer of NHP, in which case, they shall be subject to recognised tolerances and rejection limits.
All specifications, drawings, illustrations, descriptions and particulars of weights, dimensions, capacity or other details including, without limitation, any statements regarding compliance with legislation or regulation, wherever they appear, are intended to give a general idea of the Goods and/or Services, and will not form part of the Contract.
NHP shall take all reasonable steps to ensure the accuracy of any descriptions but relies on such information, if any, as may have been provided to it by its Manufacturers and Suppliers and to the fullest extent possible by law excludes all liability in contract or tort or under statute or otherwise for any error in or omission from such descriptions whether caused by NHP's negligence or otherwise.
The confidential information, intellectual property and copyright in any drawings, studies or other documents submitted by NHP to the Customer remains the property of NHP and/or the Manufacturer. The Customer must not use any drawings, studies or other documents submitted by NHP to the Customer for any purpose other than in accordance with these Conditions of Sale. The Customer must not transmit, disclose or make any drawings, studies or other documents submitted by NHP to the Customer available to any third parties without the prior written consent of NHP, save for the verification of design and/or drawings; and installation, commissioning and maintenance purposes associated with the use of the Goods and/or Services by the Customer.
8. INTELLECTUAL PROPERTY
All intellectual property, including: copyright, patents, design rights, trademarks, software and licences in, or related to, Goods supplied by NHP, and/or Services provided by NHP, remains the property of NHP and/or the Manufacturer, and, unless NHP agrees to the contrary in writing signed by an authorised Officer of NHP, the Customer has no right to re-use, re-license, or re-sell the intellectual property in any form to third parties.
Use of Goods which contain, or are to be used with, standard or custom software or firmware may be subject to the Customer's acceptance of additional terms and conditions in separate NHP or third-party licence agreements (Third Party Licence Agreements). Where there is a conflict between any term of a Third Party Licence Agreement and these Conditions of Sale, the Third Party Licence Agreement will prevail to the extent of the inconsistency.
In the absence of a Third Party Licence Agreement, the Customer is granted a non-exclusive, non-transferable and royalty free licence to use the intellectual property solely in conjunction with and to enable the use and maintenance of the Goods, with no rights to sublicense, disclose, disassemble, decompile, reverse engineer, or otherwise modify the intellectual property.
9. COMPLIANCE WITH LAWS AND INSTRUCTIONS
The Customer is solely responsible for obtaining all necessary permits and licences to comply with all applicable legislation, regulations, by-laws or rules (if any) having the force of law in connection with the installation and operation of the Goods.
The Customer must comply with all instructions provided by NHP or the Manufacturer or the Supplier in relation to the fitting, installation, use and proper maintenance of the Goods and/or the Services and as a condition precedent of any claim under Warranty.
The Customer shall obtain and keep current any insurance necessary and required to address risks allocated pursuant to these Conditions of Sale. The Customer shall, if requested by NHP to do so, provide to NHP a certificate of currency of such insurance.
11. RISK AND TITLE
The Customer acknowledges and agrees expressly that, unless otherwise specified in writing by NHP, Goods will be delivered to the Customer ex warehouse/ex works (EXW Incoterms) and that risk, and responsibility for costs of freight and insurance, passes to the Customer at the time that NHP loads the Goods onto NHP's transport deck (regardless of which Party pays for freight).
The Customer acknowledges and agrees expressly that, unless otherwise specified in writing by NHP, the property in, and legal and equitable title to, the Goods, remains with NHP and does not pass to the Customer, unless and until NHP has received in full (in cash or cleared funds) all sums due from the Customer to NHP, in relation to the Goods, and in relation to all other Goods previously supplied to the Customer by NHP.
Until the Customer has paid for the Goods in full and ownership passes to the Customer:
11.1. NHP is and remains the legal and equitable owner of the Goods;
11.2. the Customer holds the Goods as a fiduciary agent and bailee for NHP;
11.3. the Customer must hold the Goods as NHP's bailee, insure the Goods against all usual risks to full replacement value, not pledge or allow any lien, charge or other interest to arise over Goods; and
11.4 NHP may enter the Customer's premises or elsewhere at any time without notice to inspect the Goods.
To the extent (if any) that the property in and legal title to the Goods has passed to the Customer by operation of law, then NHP has a specific lien over the Goods until paid for in full.
If the Customer becomes insolvent, passes a resolution for winding up, or a court shall make an order to that effect, or a receiver or administrator is appointed over any assets or undertaking of the Customer, then:
11.5. the Customer shall not sell, use or part with possession of the Goods, and NHP shall be entitled, without previous notice and without prejudice to NHP's other remedies, to retake possession of the Goods and for that purpose may enter upon any premises occupied or owned by the Customer.
11.6. the Customer waives the right receive any PPSA notice in connection with NHP taking possession of the Goods;
11.7. the Customer:
11.7.1. will be liable for all costs, losses, and damages incurred or suffered by NHP as a result of NHP retaking possession of the Goods or otherwise exercising its rights under this clause; and
11.7.2. will indemnify NHP, and keep NHP indemnified, for all fees (including legal fees on a full indemnity basis), costs and expenses incurred or suffered as a result of any and all prosecutions, actions, demands, claims or proceedings brought by or against NHP in connection with retaking possession of the Goods or the exercise by NHP of its rights under this clause.
If the Goods are mixed, processed or used so that they lose their identity or are irrevocably incorporated in, mixed with or applied to other goods to make another item, then ownership of the Goods will pass to the Customer, however a portion of proceeds of sale of any such item equivalent to the cost for the unpaid Goods remains in trust for NHP until payment for the Goods is made in full.
The Customer may use or sell Goods in the ordinary course of business, and the Customer will then be the agent for NHP to the extent necessary to account for the proceeds of any such sale. The Customer must account to NHP for that part of the proceeds of any such sale which equates to the price of the Goods and shall hold that amount in a bank account on trust for and until paid to NHP.
In the event of any payment on insurance in relation to the Goods, the Customer shall hold any insurance monies received by the Customer for Goods owned by NHP in a bank account on trust for and until paid to NHP.
NHP's rights as an unpaid seller will not be affected by NHP retaining title to Goods.
12. PERSONAL PROPERTY SECURITIES ACT
Defined terms in this clause have the same meaning as those given to them in the Personal Property Securities Act PPSA 2009 (Cth).
The Customer and NHP acknowledge that these Conditions of Sale constitute a Security Agreement for the purposes of s20 of the PPSA and give rise to a Purchase Money Security Interest ("PMSI") in favour of NHP over the Goods supplied to the Customer as Grantor pursuant to these Conditions of Sale.
The Goods supplied or to be supplied under these Conditions of Sale fall within the PPSA classification of "Other Goods" acquired by the Customer pursuant to these Conditions of Sale.
The Customer will execute such documents and do such further acts as may be required by NHP to perfect the Security Interest granted to NHP under the PPSA by registration and ensure that until all of the obligations of the Customer are discharged and fully satisfied, NHP's Security Interest remains perfected and has priority over all other Security Interests in the Collateral (except for the Security Interests that NHP has expressly agreed to sub-ordinate).
The Customer undertakes that it will not, without the prior written consent of NHP (which it may or may not grant in its sole discretion) change or permit the change of any of its details that are required to be included in the Financing Statement.
The Customer may not grant any Security Interest in all or any of the Goods except with the prior written consent of NHP (which may be withheld in its sole discretion).
The parties contract out of each provision of the PPSA which, under s115(1) a) - r) of the PPSA, they are permitted to contract out of.
Where the PPSA applies to action taken by NHP in relation to the Goods, the Customer: agrees that sections 120, 125,142 and 143 of the PPSA will not apply; and waives its right to receive any notices under sections 95, 118(1)(b), 121(4), 123(2), 130, 132(3)(d), 1332(4) and 135 of the PPSA and any right to receive a Verification Statement under the PPSA.
The Customer agrees that NHP may apply to register its Security Interest in the Goods at any time before or after delivery of the Goods. The Customer irrevocably waives its rights under s157 of the PPSA to receive a notice of any Verification Statement in respect of NHP's Security Interest under these Conditions of Sale.
Each party waives its rights to receive anything from any other party under s275 of the PPSA.
The Customer acknowledges that it has received value as at the date of first delivery of the Goods and has not agreed to postpone the time for attachment of the Security Interest granted to NHP under these Conditions of Sale.
Prices stated are in Australian dollars, exclusive of GST and any transport and handling charges. The amount of GST payable will be calculated by multiplying the sum of the price for the Goods and/or Services plus any additional freight or other charges by the rate of GST applicable at the time of the supply. NHP will issue a tax invoice to the Customer in relation to any supply that is subject to GST.
The words "supply" and "tax invoice" in this clause have the same meaning as that given to them in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
14. PAYMENT OF INVOICES
For Customers without established trading accounts, the Customer shall, if NHP so requires, pay in full any invoice prior to commencement of procurement and/or manufacturing or otherwise prior to any despatch of the Goods.
For Customers with established trading accounts with credit facilities, the time of payment shall be of the essence of the Contract and the Customer shall pay any invoice within 30 days from the end of the month of invoicing, unless otherwise agreed by NHP in writing and signed by an authorised Officer of NHP. Should the 30 day payment deadline fall on a Saturday, Sunday, Public Holiday or Bank Holiday at the address where the payment is to be made or be in the month of February, payment is required no later than the last banking day of that month. Payment shall be made in Australian dollars.
Any supply of Goods and/or Services to an account with credit facilities will be subject to a credit limit, which NHP may apply and/or amend from time to time at its absolute discretion.
If the Customer fails to make any payment, of any invoice, or of any required milestone prepayment, by the date on which that payment is due, then NHP may, without prejudice to any other right or remedy, which NHP may otherwise have, and in addition to any such other right or remedy, take any action including the following:
14.1. suspend, defer or cancel any outstanding supply of any Goods and/or Services, which are to be supplied to the Customer, under these Conditions of Sale, or under any other arrangement, unless and until the overdue amount is paid in full;
14.2. appropriate any payment which payment is made toward payment for the Goods and/or Services being supplied under these Conditions of Sale, or which payment is made toward any other Goods and/or Services being supplied under any other arrangement, toward payment of the overdue payment, unless and until the overdue amount is paid in full;
14.3. charge interest (both before and after any judgment) on the amount unpaid, at the rate of 3% per annum above the overdraft rate payable by NHP to its bankers, unless and until payment is made in full (a part of the month being treated as a full month for the purpose of calculating interest); and
14.4. demand payment of the arrears as well as payment in advance, for any undelivered Goods and unprovided Services, and before proceeding with any procurement and/or manufacturing or making any further delivery of Goods and/or before proceeding with providing any Services, unless and until the overdue amount is paid; and
14.5. call on and give effect to any right that NHP may have in any security in place, including: guarantees given by directors or any other parties, secured real property, bank guarantees or any rights pursuant to the PPSA.
If payment of invoices is made contingent upon any of delivery, installation, test or commissioning, and if any of these stages are delayed to suit the Customer's wishes or convenience, or by reason of the Customer being unready, unavailable, or unable to take delivery or undertake installation, tests or commissioning, at the time, date and place allocated, then payment of invoices will be due in accordance with agreed payment terms from the date of the invoice, as if there had been no delays. Additionally, risk will pass to the Customer immediately upon the occurrence of the delay, and any storage by NHP necessitated by the delay will be at the Customer's risk and expense.
NHP may render partial invoices and require progressive payments and payment is due against each invoice rendered, not upon completion of supply. NHP may render invoices electronically and require payment by electronic funds transfer. If NHP permits payment by credit or debit card, then such payment is subject to validation and authorisation, both at the time of agreement and immediately prior to shipment and NHP may recover as a separate charge any processing fees and other administration costs incurred in processing the credit or debit card transaction.
If the Customer pays for Goods by cheque or direct funds transfer then payment only occurs when all cheques or funds transferred have been presented and cleared in full by NHP's bank.
The Customer must make all payments due under these Conditions of Sale without any set-off, counterclaim, deduction or condition unless NHP otherwise agrees in writing signed by an authorised Officer of NHP.
If NHP is required to take legal action to recover monies due to NHP from the Customer, then NHP may charge and recover from the Customer an amount to cover all and any costs (including legal costs) incurred by NHP in respect of such legal action.
15. FORCE MAJEURE
NHP will not be liable for any loss, damage or delay arising out of its failure or that of its Manufacturers and Suppliers to perform obligations under the Conditions of Sale, due to causes beyond its reasonable control. In the event of such delay, NHP's performance date(s) will be extended for such length of time as may be reasonably necessary to compensate for the cause.
If a cause for delay, which is beyond NHP's reasonable control, continues for a period of 90 days or more, NHP may (without affecting the accrued rights and obligations of the parties as at the date of termination) terminate this agreement immediately by written notice to the Customer.
Prior to delivery of the Goods, NHP and/or the Manufacturer may, at its own expense, carry out any tests on the Goods in accordance with its own and any applicable standards and testing procedures. Any additional tests, procedures and associated documentation required by the Customer will be mutually agreed and will be provided only at the Customer's additional expense.
Unless stated in the Quotation or otherwise in writing by NHP, the price quoted for supply of Goods includes standard Manufacturer's packaging and packing for shipment in accordance with NHP's standard practice. Any other packing and/or labelling and/or marking requirements specified by the Customer are not included in the price of the Goods unless acknowledged in NHP's quotation or in writing and signed by an authorised Officer of NHP. NHP may impose charges for additional packing and/or crating and/or labelling and/or marking requirements.
Unless otherwise specified in writing by NHP, Goods will be delivered to the Customer ex warehouse/ex works (EXW Incoterms) and responsibility for costs of delivery passes to the Customer at the time that NHP loads the Goods onto NHP's transport deck.
Where the Customer requests, in an Order, that delivery is included in the supply of Goods, the Customer must pay for the cost of delivery by that method from the point of despatch of the Goods by NHP.
Notwithstanding that Goods may be consigned for delivery by NHP at the direction of the Customer, unless NHP agrees in writing to the contrary, risk in the Goods passes to the Customer in accordance with ex warehouse/ex works terms (EXW Incoterms).
In the event that the Customer requests in an Order that NHP arrange delivery, then unless NHP states in writing to the contrary:
18.1. all statements or representations made by NHP, about delivery times and costs, are made in good faith but are estimates only and are not statements or representations of fact;
18.2. any delivery period stated in any Quotation is subject to reconfirmation and commences from the date on which NHP receives sufficient information to proceed with supply of Goods, or from the date on which NHP provides written notice to the Customer to confirm that the Customer's Order has been received and accepted, and that a Contract has been formed, whichever is the later date;
18.3. dimensional weight calculations may apply. For safety reasons, hazardous goods cannot be shipped by air;
18.4. NHP may impose additional charges for delivery of certain items, for example those that are very large, heavy or hazardous;
18.5. a delivery charge per order, charged at the rate applicable at the time of delivery, will be applied on all orders which are delivered to the Customer's premises or to any premises or location otherwise specified by the Customer;
18.6. delivery will be made to the Customer's standard default address. NHP may use any method of delivery available to it. Where the Customer directs NHP to deliver the Goods to a location other than the Customer's standard default delivery address using NHP's standard method of transport, an additional delivery charge will apply.
18.7. the amount charged for Delivery will be shown as a separate item on all invoices. The delivery charge will not be applied to the supply of back orders from an original order.
18.8. when selecting a delivery method that includes 'No Signature Required', the Customer is authorising the Goods to be left at their unattended premises and in that event, the Customer assumes all risk of liability and loss of the Goods arising from the Customer choosing this delivery method.
18.9. time for delivery and/or performance shall not be of the essence. If delivery is delayed for any reason beyond NHP's reasonable control after the date on which the Customer is notified that the Goods or any completed items forming part of the Goods are ready for delivery, then NHP will notify the Customer when the reason for the delay is at an end and the delayed date and time for delivery of the Goods; and
18.10. the Customer acknowledges and agrees expressly that, NHP will use reasonable endeavours to meet delivery and/or performance estimates but NHP shall not in any circumstances, even where liability arises as a result of the negligence of NHP or its carriers, be liable to the Customer for any loss of profits or other loss, damages or penalty caused to the Customer by any delay in the delivery or any non-delivery of the Goods, or any part of the Goods.
NHP may deliver or perform and invoice by instalments. Failure to meet a scheduled delivery or performance date shall not prevent or restrict NHP from making further deliveries or rendering subsequent performance under the relevant Contract by instalment.
Any claims of shortage in deliveries must be advised to NHP in writing within 7 days of receipt of the Goods.
NHP is not responsible for any loss or damage to the Goods caused by or arising from transport or delivery of the Goods if NHP has not packed the Goods or the Customer has nominated the carrier.
Claims made for damage or loss in transit must be made in the first instance against the carrier in the manner prescribed by the carrier.
Unless otherwise specified in writing by NHP, Goods will be delivered to the Customer ex warehouse/ex works (EXW Incoterms).
If the Customer fails to take delivery of the Goods in accordance with these Conditions of Sale, NHP may arrange suitable storage of such Goods at NHP's premises or elsewhere, and the Customer must, on demand, pay to NHP all costs of storage, insurance, demurrage, handling and other charges of and incidental to such storage.
20. INSPECTION OF GOODS DELIVERED AND/OR SERVICES PERFORMED
The Customer must inspect the Goods and/or Services and carry out any necessary testing as soon as reasonably practicable after delivery but in any case no later than 7 days after delivery in the case of Goods, or performance in the case of Services.
NHP shall be liable for a defect in the Goods and/or Services, incomplete or failed delivery or performance, shortage of weight or quantity of the Goods and/or Services, only if the Customer gives notice in writing to NHP within 7 days of the date of delivery or performance.
The quantity of any consignment of Goods, as recorded by NHP upon despatch from NHP's place of business, shall, unless the Customer can provide evidence to the contrary, be conclusive evidence of the quantity received by the Customer on delivery.
Any liability incurred by NHP for non-delivery or non-performance or for Goods notified as defective on delivery or Services notified as defective following performance in accordance with this clause will be limited to replacing the Goods or re-performing the Services within a reasonable time or to refunding the price then paid in respect of such delivery or performance.
NHP has policies relating to the return of Goods, which must be complied with before any returned Goods are accepted by NHP in exchange for credit, or such returned Goods are otherwise repaired or replaced. Prior to returning any Goods to NHP for any reason, the Customer must contact NHP and obtain authorisation for the return.
Nothing in this clause purports to modify or exclude any conditions, warranties, guarantees and undertakings under the Australian Consumer Law and the Australian Consumer Law will operate and prevail to the extent of any inconsistency.
21.1. where Goods which have been supplied by NHP on a manufactured/assembled to order or indent only basis, NHP will not, unless agreed otherwise by NHP in writing, accept them for return, except where such Goods are faulty or have been wrongly delivered against NHP drawings and/or NHP specification sheets signed off by the Customer or its assigns prior to manufacture.
21.2. a factory seal may be affixed to the Manufacturer's packaging e.g. Allen-Bradley and Rockwell Software products. If this seal is broken the product is then an "open box" product and cannot be accepted by NHP for return in any circumstances.
21.3. goods must be undamaged, in their original condition and original unmarked and unsoiled packaging, and returned to the NHP premises identified in any authorisation issued for return, quoting the authorisation number.
21.4. all Goods are to be returned at the Customer's risk and expense and are subject to inspection by NHP as a condition precedent to the issue of any credit or replacement.
21.5. the Customer is responsible for returning Goods to NHP and for providing proof of delivery of such return.
22. RETURNS OF GOODS FOR REPAIR (NOT UNDER WARRANTY)
Notwithstanding that NHP has no obligation to repair Goods which are not under warranty or subject to a guarantee under Australian Consumer Law, NHP may accept such Goods for repair, on the following conditions:
22.1. NHP may charge a fee for inspection and preparation of a repair quotation and this fee shall be payable in the event that the Customer does not proceed with the repair;
22.2. the Customer is responsible for all forward and return delivery, risk and insurance costs and requirements;
22.3. any repairs that NHP undertakes under this clause are guaranteed for a period of 90 days from date of completion and only in respect of any replacement components that were used in the repair.
23. ENGINEERING, TECHNICAL ASSISTANCE, SERVICES AND TRAINING
NHP will provide Engineering, Technical Assistance, Services and/or Training in accordance with NHP's published rates in effect as of the date of such supply, unless otherwise stated by NHP in any Quotation.
Where applicable, all other associated expenses for air fares, vehicle and equipment hire, meals, accommodation, sub-contractors and miscellaneous out of pocket expenses will be separately itemised and charged at the cost to NHP plus 15 percent. Any required miscellaneous materials purchased by NHP to complete the scope of work will be separately itemised and charged at cost to NHP plus 25 per cent.
24. LOANS AND HIRE
Any Goods loaned or hired out by NHP must be returned by the recipient in the original packing, and in original condition, fair and reasonable wear and tear excepted.
Any Goods loaned or hired out to the Customer by NHP which are returned damaged or defective, due to reasons not covered by NHP's standard warranty provisions, will result in the Customer being charged for repair charges, or the cost of the Goods loaned or hired out, whichever is the lesser.
Any Goods loaned or hired to the Customer by NHP, which are not returned to NHP within the specified loan or hire period, shall be deemed to have been sold to the Customer, and the list price on the date for return of the loaned or hired Goods shall become due and payable by the Customer upon presentation of NHP's invoice.
25. PRODUCT WARRANTY/GUARANTEE NOT UNDER THE AUSTRALIAN CONSUMER LAW
If the Customer is not a Consumer as defined in the Australian Consumer Law, then NHP warrants that the Goods and/or Services, whether manufactured by NHP, its Manufacturers or its Suppliers, as published in NHP's price lists, brochures, catalogues, electronic media and other advertising material and supplied by NHP, shall, for a period of twelve months (or such other period as NHP shall specify in writing) from the date of despatch of the Goods from NHP's premises, in the case of Goods, or from the date of performance, in the case of Services, be free from defects, faulty workmanship, materials or design.
The warranties provided above shall be effective, and impose liability on NHP to give effect to such warranty, only if:
25.1. NHP is provided with written notice of the circumstances giving rise to the claim arising within 30 days of the occurrence of such circumstances; and
25.2. NHP is permitted to inspect Goods before they are repaired or replaced; and
25.3. the Customer returns the Goods or components to NHP's premises, at the Customer's expense; and
25.4. NHP is satisfied, by its own examination of the Goods, that any alleged circumstances giving rise to the claim have not been caused by:
25.4.1. improper use, installation, operation, damage due to accident, neglect, lightning, power surge, or from improper repair, alteration, modification or adjustment to the Goods; or
25.4.2. unusual deterioration or degradation due to physical, electrical, electromagnetic or noise environments.
Any repairs, alterations or other work carried out to the Goods by a person other than an authorised representative of NHP shall invalidate the warranty in this clause.
Any replacement Goods or repaired Goods will be guaranteed on these terms for any unexpired portion of the period of guarantee given on the original Goods and/or Services or 90 days whichever is the longer period. Any Goods which have been replaced will belong to NHP.
If the Customer requests or insists that warranty service be carried out on site or at the Customer's premises then any costs over and above the direct costs of replacing or repairing the Goods or the component parts of the Goods at NHP's premises shall be at the Customer's expense.
If the Customer requests or insists that warranty service (or any other service or attendance) be carried out on site or at the Customer's premises, the Customer grants to NHP and its employees, agents and representatives a right to enter onto its premises to effect any inspection, repair or replacement. The Customer shall ensure that NHP's employees, agents and representatives are provided with a safe and secure working environment while at its premises and the Customer shall be responsible for all electrical isolation and, where applicable, isolating any computers or processors requiring repair or replacement from its network and for making backup copies of any information on such computers or processors before NHP's arrival on site.
26. PRODUCT WARRANTEE/GUARANTEE UNDER AUSTRALIAN CONSUMER LAW (IF APPLICABLE)
The Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law may guarantee certain conditions, warranties and undertakings in relation to the Goods. To the extent they apply, these guarantees cannot be modified nor excluded by contract, and these Conditions of Sale do not purport to modify or exclude any conditions, warranties, guarantees and undertakings under the Australian Consumer Law.
If the Customer purchases Goods as a Consumer as defined in the Australian Consumer Law, then:
26.1. in the event of a breach by NHP of a guarantee imposed by the Australian Consumer Law, the Customer may be entitled to an identical replacement (or one of similar value if reasonably available), a refund or compensation for drop in value to the Goods, at the Customer's option.
26.2. in the case of a minor failure, the Customer may be entitled to have the Goods repaired, replaced or obtain a refund, at NHP's option.
To the extent permitted by law, NHP's liability for any loss, injury or damage, shall be limited to making good, by replacement or repair, at NHP's option, and at the Customer's expense in relation to costs over and above the direct costs of replacing or repairing the Goods or the component parts of the Goods at NHP's premises, any defects which appear under proper use.
This obligation will not apply if: the defect arises because the Customer has altered or repaired the Goods without the written consent of NHP; the defect arises because the Customer did not follow NHP's and/or the Manufacturers' instructions for storage, usage, installation, commissioning or maintenance of the Goods; the Customer has failed to notify NHP of any defect, where the defect should have been apparent on reasonable inspection; the Customer fails to notify NHP of the defect within 12 months (or such other period as NHP shall specify) of the date of despatch of the Goods or performance of the Services.
27. REPRESENTATIONS AS TO PERFORMANCE AND FITNESS FOR PURPOSE
Except as expressly set out in these Conditions of Sale and the Australian Consumer Law, NHP makes no warranty, representation or other statement in respect of the Goods, their quality or their fitness for any purpose, except as stated expressly in these Conditions of Sale, or as may otherwise be required by law.
The Customer acknowledges and agrees expressly that NHP can make no, and does make no, representation and provides no warranty in respect of any standard or custom software and firmware, supplied in connection with the Goods, (including that any such software shall be uninterrupted or free of errors, or that the functions contained therein shall meet or satisfy the Customer's intended use or requirements), except as stated expressly in these Conditions of Sale, or as may otherwise be required by law. Software programs are supplied on the strict understanding that NHP does not warrant their function to be free from defects or error.
In relation to any representation as to performance or fitness for purpose:
27.1. unless any performance figures, tolerances or characteristics have been specifically reviewed, and expressly warranted by an authorised Officer of NHP in writing, NHP's view is that environmental and operational circumstances will affect such figures, tolerances or characteristics and NHP recommends that the Customer conduct independent assessment and verification of the subject of the figures, tolerances and characteristics to determine their veracity, application and reliability of any representation; and
27.2. the responsibility for ensuring that Goods and/or Services are sufficient and suitable for a particular purpose is the Customer's, unless specifically stated in writing by an authorised Officer of NHP; and
27.3. the Customer acknowledges and agrees that NHP can accept no liability for any failure of the Goods or Services to comply with such criteria, whether attributable to NHP's negligence or otherwise; and
27.4. any advice or recommendation given by an employee of NHP which is not confirmed in writing by an authorised Officer of NHP, ought to be assessed and verified by the Customer, and is acted on entirely at the Customer's risk and NHP shall not be liable for any such advice or recommendation which is not so confirmed.
In the event of the Customer relying on any representation, warranty, statement, advice or recommendation, which proves to be incorrect, inaccurate or misleading, NHP's liability will be limited to the refund of the price paid for the Goods and/or Services to NHP or, at NHP's option, the supply of replacement Goods and/or Services which are sufficient and suitable, and in no event will NHP be liable for any consequential or indirect loss, including loss of revenue, profit or opportunity.
28. LIABILITY EXCLUSION
This clause sets out: the full extent of NHP's obligations and liability to the Customer with respect to the Goods and/or Services under any Contract. All other terms, conditions, warranties and representations that might otherwise be implied by statute or otherwise, are hereby expressly excluded, save for those that cannot be excluded, restricted or modified by law.
To the fullest extent permitted by law and subject only to any express exceptions contained in these Conditions of Sale, NHP will be under no liability to the Customer whatsoever (whether in contract, tort, (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct or indirect or consequential loss (all of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of use, loss or cost of recovery of data, computer downtime, depletion of goodwill, business interruption, increased purchasing or manufacturing costs, loss of opportunity, loss of contracts and like loss) howsoever caused or arising out of or in connection with: any of the Goods and/or Services, or the manufacture, sale, performance, characteristics or supply or failure or delay in performance or supply of the Goods and/or Services by NHP or on part of NHP's employees, agents Manufacturers, Suppliers or subcontractors; any breach by NHP of any of the express or implied Conditions of the Contract; any use made or resale or on-supply of any of the Goods and/or Services or any product incorporating any of the Goods or developed using the Goods and/or Services; any acts or omissions of NHP at the Customer's premises; any statement made or not made or advice given or not given by or on behalf of NHP, including without limitation any statement as to compliance with legislation or regulation; or otherwise under the Contract.
NHP does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified by law including liability under the Competition and Consumer Act 2010 (Cth). However, where such statutory provisions apply, or where the Customer is entitled to claim under an express provision of these Conditions then to the extent permitted by law NHP's total liability shall be limited at its option to: in the case of a supply of Goods, either the replacement of the Goods by NHP; or supply of equivalent Goods by NHP; or the payment of the reasonable documented cost of replacing the Goods; or the payment of the reasonable documented cost of acquiring equivalent Goods; or the repair of the Goods by NHP; or the payment of the reasonable documented cost of having the Goods repaired; or in the case of a supply of Services, either the supply of the Services again by NHP or the payment of the reasonable documented cost of having the Services supplied again. No costs of rectification, other than directly by NHP, shall be accepted without prior acceptance in writing signed by an authorised Officer of NHP.
If the Goods are capable of storing user-generated data, repair may result in loss of that data and, to the fullest extent permitted by law, NHP expressly excludes all liability for such loss of data, and recommends that the Customer take steps to back-up such data before any servicing of the Goods by NHP or returning the Goods to NHP for repair.
29. LIABILITY FOR FAULT ONLY
Notwithstanding anything else in this Agreement, and to the extent permissible by law, NHP shall be liable to the Customer, whether under the law of contract, in tort, under statute or otherwise, for any injury, loss or damage, only to the extent and in the proportion to which such injury, loss or damage is caused by the fault of NHP.
NHP will not be liable for any and all direct, special, indirect and/or consequential loss or damage, however caused to the Customer and/or to third parties, that may result as a consequence of NHP supplying, or failing to supply, at all or on time, the Goods, to the Customer, or to any third party, under, or in association with, this Agreement.
The Customer indemnifies and keeps NHP indemnified for any and all direct, special, indirect and/or consequential loss or damage, caused to NHP and/or to third parties, arising as a consequence of the Customer's acts or omissions, in relation to NHP supplying, or failing to supply at all or on time, the Goods and/or the Services, to the Customer, or to any third party, under or in association with this Agreement.
30. LIMITATION OF LIABILITY
Notwithstanding anything else in this Agreement, and to the extent permissible by law, NHP's aggregate liability arising out of the performance or non-performance of its services, whether under the law of contract, tort, statute or otherwise, shall be limited to either: the cost or repair or replacement of the Goods supplied to the Customer, the price paid to NHP by the original Customer for the item(s) giving rise to the claim, or to AU$10,000.00, whichever amount is the lesser.
Notwithstanding anything else in this Agreement, and to the extent permissible by law, NHP shall not be liable to the Customer, or to any third party for any business interruption, loss of profit, revenue, materials, anticipated savings, data, contract, goodwill or the like (whether direct or indirect), or for any other form of incidental or consequential loss or damage of any kind.
NHP shall not be liable for any loss or damage where an action against it for such loss or damage is commenced after a period of eighteen (18) months has elapsed after the circumstances on which the alleged cause of action has occurred. This clause shall apply regardless of any other contrary provision in these Conditions of Sale and regardless of the form of action. Each provision of these Conditions of Sale which provides for a limitation of liability, disclaimer of warranty or condition or exclusion of damages is separate and independent.
31. GOVERNING LAW AND JURISDICTION IN THE EVENT OF DISPUTES
The parties hereby agree that application of the United Nations Convention on Contracts for the International Sale of Goods shall be excluded in relation to these Conditions of Sale and of any Contract between the Parties.
These Conditions of Sale are governed by the law in Victoria, Australia and the Commonwealth of Australia.
The Parties submit to the exclusive jurisdiction of the courts of Victoria for the resolution of disputes arising under or in relation to these Conditions of Sale and of any Contract between the Parties.
Any provision in these Conditions of Sale (or part thereof) which is invalid or unenforceable in any jurisdiction shall, if possible, be read down for the purpose of that jurisdiction, so as to be valid and enforceable, or otherwise shall be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions of this agreement or affecting the validity or enforceability of that provision in any other jurisdiction. Failure by NHP to enforce or partial enforcement by NHP of any provision of these Conditions of Sale will not be construed as a waiver by NHP of any rights under these Conditions of Sale.
Waiver of any right, power, authority, discretion or remedy arising on a breach of or default under an agreement in force between NHP and the Customer on these Conditions of Sale must be in writing and signed by the party granting the waiver.
The Customer must not assign or otherwise purport to transfer its rights or obligations under these Conditions of Sale to any other person without the prior written consent of NHP.
NHP shall be entitled, without the consent of or notice to the Customer, to assign the benefit, subject to the burden, of these Conditions and/or any Contract to a related body corporate (as defined in section 50 of the Corporations Act 2001 (Cth)) at any time.
Any notice or other communication including, but not limited to, any request, demand, consent or approval, to or by a party under these Conditions of Sale must be in legible writing and in English addressed to such address as the other party has specified to the sender of the notice.
36. RESOLUTION OF DISPUTES
These procedures are the exclusive procedures for the resolution of all such disputes between the parties under these Conditions of Sale.
In the event of a dispute arising in relation to these Conditions of Sale or to any Goods or Services supplied pursuant to these Conditions of Sale, the parties will use their best endeavours and attempt in good faith to promptly resolve the dispute by negotiation.
Negotiations shall be conducted in the English language between representatives of the parties who have authority to settle the dispute within 30 days of a party providing written notice to the other party of the matter and circumstances giving rise to the dispute (Notice of Dispute).
If the dispute has not been resolved within 30 days of a party giving a Notice of Dispute, the parties will further attempt in good faith to settle the dispute by non-binding third-party mediation.
If a mediator cannot be agreed upon within 10 days of a party giving a Notice of Dispute, either party may request the President of the Law Institute of Victoria to appoint a mediator.
Mediation must take place within 90 days of the date of the Notice of Dispute. The Mediator's fees and expenses shall be apportioned equally to each side.
Any dispute not so resolved by negotiation or mediation may then be submitted to a court of competent jurisdiction in Victoria, Australia.
NHP may review and amend these Conditions of Sale from time to time. Notification will be communicated in writing and will be applied to all orders placed by the Customer and accepted by NHP after the date of such communication.
38. VARIATION OF TERMS
These Conditions of Sale may only be varied, by written agreement of the Parties and in the case of NHP such variance must be signed by an authorised Officer of NHP.
These Conditions of Sale supersede all previous terms and conditions which have previously governed a contract for the sale of Goods and/or Services from NHP to the Customer.
Effective 1st of September 2017