Terms and Conditions of Sale
Our standard Terms and Conditions of Sale appear below ("Conditions"):-
The definitions which follow form part of and shall apply to these Terms and Conditions and shall be incorporated in any agreement between Hasemer and the customer.
1. Definitions and Interpretations
"Hasemer" and "Us" and "the Company" means T.C. Hasemer Pty Ltd trading as Hasemer Materials Handling and any business conducted under any registered business name of which Hasemer is a proprietor.
"Customer" means any natural person or persons, partnership, corporation, joint venture or association (whether or not incorporated) to whom Hasemerprovides services pursuant to this agreement and in addition to any purchaser of goods and services which may include any person requesting same to be manufactured or supplied as agent for the ultimate recipient of the goods and services, a consignor or consignee of goods.
"Consignor" means and includes any natural person, partnership, corporation, joint venture or association (whether or not incorporated) which sends goods on behalf of the customer or has a claim, entitlement or interest of any kind in the goods and any person signing a request for authorisation for carriage of goods is deemed to be the authorised agent of the consignor.
"Goods" includes any manufactured or processed item of any description whatsoever, and specifically includes any device, machine, receptacle, container, packing material, pallet or the other item attached to or delivered with the goods.
Services" means anything done or to be done by Hasemer in its capacity as supplier or manufacturer or vendor or servicer including the whole operation by Hasemer.
"Clear Funds" means cash or bank cheque or the receipt of clear funds to Hasemer’s bank account which has been verified by Hasemer’s bank as being clear funds or an order for payment or negotiable instrument which has been approved by Hasemer’s bankers as one upon which Hasemer can immediately draw as cash without further recourse.
These Terms and Conditions (which may be subject to change or variation without notice) apply to all goods submitted to Hasemer for repair or to the supply or manufacture of goods requested of Hasemer and prevail over any conflicting or inconsistent work order, request or condition submitted by the customer and apply to the exclusion of any terms or conditions (whether written, verbal or to be implied) provided by the customer. The giving by the customer of any instructions to supply, manufacture, repair or deliver goods and the acceptance by the customer of delivery of goods (whether in part or whole) and any payment or promise to pay by the customer subsequent to Hasemer’s acceptance of the purchase order request constitutes an unqualified acceptance by the customer of these Terms and Conditions and unless expressly acknowledged by Hasemer in writing no variation to these Conditions will be accepted or bind Hasemer in any manner whatsoever.
Any quotation or tender is open for acceptance by the customer provided such acceptance is communicated in writing to Hasemer within thirty (30) days after the date of the quotation or tender or within such other period of time as Hasemer may agree to in writing. If not accepted in writing by the customer within 30 days the quotation or tender will be deemed to have been withdrawn. Any contract arising from the acceptance by a customer of a quotation or tender is subject to approval by Hasemer (whose decision is final) and any contract arising following approval by Hasemer is subject to these Terms and Conditions.
4. Price Variations
Invoice prices quoted are for supply of the goods from Hasemer’s premises unless otherwise agreed in writing. Any price quoted does not include any of the following items which (if incurred by Hasemer) will be paid by the customer to Hasemer upon demand and are in addition to the price quoted:-
(4.1) Freight, insurance and other charges borne by Hasemer or for which Hasemer is liable by reason of or arising out of Hasemer’s compliance with any request by the customer or which results in delivery other than to the place specified or initially contemplated;
(4.2) Storage and packing costs;
(4.3) All increases in direct and indirect costs to Hasemer after the date of the quotation without limitation and including rates of exchange, taxes, levies and imposts, licence fees and the like, and expenses incurred as a result of any delay by the customer or the customer’s obligation to obtain any licence, permit, authority or other document required by law, any insurer or good commercial practice.
A certificate in writing by a person duly authorised by Hasemer will be conclusive evidence of any increase in the contract price.
5. No Cancellation
(5.1) Orders cannot be countermanded, terminated or cancelled under any circumstances except with Hasemer’s prior written consent and only upon terms that the customer guarantees and indemnifies Hasemer against all loss and damage of whatsoever nature and howsoever caused;
(5.2) Hasemer may cancel any order, agreement or the like or suspend manufacture or completion at Hasemer’s sole discretion and Hasemer reserves all rights to recover any loss or damage consequent upon any such cancellation or suspension due to any of the following circumstances or events:-
(5.2.1) in the case of death, incapacity, bankruptcy, administration or liquidation of customer;
(5.2.2) in the event that the customer suspends or delays payment including any part payment, progress payment or installment payment required pursuant to the agreement;
(5.2.3) in the event that the customer makes any agreement with creditors of the customer in circumstances where the customer is unable to pay its debts as and when those debts fall due;
(5.2.4) in the event the customer fails to make any payment in respect of any licence, permit, authority, sales tax, tax of any other nature, levy, charge or fee, storage, handling, packing, freight or insurance fee or charge of and incidental to the manufacture or on site installation.
6. Buyers Property
The customer agrees and warrants that the goods submitted to Hasemer for repair are:-
(6.1.1) not dangerous or hazardous goods within the meaning of any legislation currently in force or applicable from time to time or as amended;
(6.1.2) not subject to any requirement of any environmental protection agency or similar organisation, body, authority or Government Department such as would impose any duty or obligation upon Hasemer in respect of handling, storage, movement, disposal or the like;
(6.1.3) free from patent defects or hazards which would constitute a risk to the health and safety of persons likely to handle or come into contact with the goods;
(6.1.4) the customer’s sole unencumbered property; in the event that the customer is not the sole unencumbered owner then the buyer acknowledges that it remains the bailee of the goods to the lawful owner (or person or persons having the best claim to title and immediate possession) and acknowledges that the goods are accepted for repair by Hasemer on the understanding that the customer has the full authority of the lawful owner notwithstanding any prior statement or representation made by the customer, and that the customer is liable for payment;
(6.1.5) at all times at the customer's sole risk and that Hasemer is not obliged to insure the goods in any respect against any risk (including public liability) and accepted for repair on the understanding that the customer indemnifies and keeps Hasemer indemnified against all loss, damage and injury including all consequential and incidental loss.
(6.2) Retention of Title
(6.2.1) the customer agrees and warrants that the goods supplied and/or manufactured by Hasemer are its sole property and title to the goods does not pass to the customer until payment is made. In the meantime the customer takes custody of the goods as Hasemer’s agent and bailee, but at the customer’s risk.
(6.2.2) the customer may resell the goods, but only as Hasemer’s agent, and any right to bind Hasemer to any liability to any third party is expressly prohibited. The resale is to be at arms length and on market terms. Pending resale or utilisation in any manufacturing process, the customer must keep the goods separate, properly secured and insured.
(6.2.3) the customer will hold part of the proceeds of any sale to a third party in trust for Hasemer and retain them in a separate bank account, such part being equal to the amount owing by the customer to Hasemer at the time, until the liability to Hasemer has been discharged.
7. Return of Goods
(7.1) The customer acknowledges that it is responsible for examining the goods supplied and/or manufactured by Hasemer at the time of their delivery and satisfying itself about them, including but not limited to:-
(a) their compliance with their description; and
(b) their condition, suitability and fitness for purpose.
(7.2) Any claims for credit and/or refund must be made within seven (7) days of delivery, after which Hasemerreserves the right to reject such claims.
(7.3) Hasemer reserves the right to charge a return and restocking fee of 25% of the costs of goods returned together with all transport charges paid or incurred by Hasemer as a result of the returns.
(7.4) If Hasemer has manufactured goods in accordance with the customer’s specification, Hasemerreserves the right to reject any claim for refund and/or credit. Hasemer’s liability is limited to any repairs necessary to ensure the goods are good condition and fit for their purpose.
Payment is to be made strictly on delivery of goods unless otherwise agreed in writing between Hasemer and the customer. Hasemer reserves the right to charge a late payment fee of 1% of the amount outstanding for each month or part thereof during which it is overdue until payment has been made in full.
All prices quoted by Hasemer exclude goods and services tax, which the customer will pay to Hasemer in addition to and at the same time as the price of the goods.
10. On Site Installation
In addition to the provisions, if any, in the quotation or tender relating to onsite installation by Hasemer both inside and outside Australia the following provisions apply:-
(10.1) the customer will at its sole expense be responsible for securing any necessary permits and approvals of work to be performed by Hasemer pursuant thereto;
(10.2) the customer will have the site clear and available for installation prior to the arrival of Hasemer’s employees, agents or contractors;
(10.3) if delays in installation are encountered through no fault of Hasemer, its employees, agents or contractors any extra costs involved will be borne by the customer;
(10.4) if the contract cannot be finalised because of any delays by the customer in making available the site area for installation or arranging for the completion of any necessary preliminary works or providing any other materials or equipment necessary for the completion of the installation this does not affect Hasemer’s right to payment as if the delays had not occurred;
The customer together with its agents and representatives will indemnify Hasemer and keep Hasemer indemnified against all claims and proceedings arising from injury to persons or damage to property or resulting in loss of profits or economic loss arising from any accident, incident, defective or incomplete works occurring during on site installation at any site whether or not involving any employee, agent or subcontractor of Hasemerto whom this indemnity extends and the provision of goods and services or Hasemer’s promise to provide same (subject to these terms and conditions) will constitute sufficient consideration for the customer, its agents and representatives providing this indemnity and the customer is deemed to have obtained the consent and agreement of its agents and representatives to this provision.
11. Time for Performance
All reasonable efforts will be made by Hasemer to complete supply or manufacture and provide services but in respect of Hasemer’s performance time is not of the essence and the customer agrees and warrants that Hasemer is not liable for any penalty or damages for late manufacture, delivery or failure to provide goods and/or services or any part thereof due to:-
(11.1) (11.1.1) acts of god;
(11.1.2) lock outs, strikes or any other industrial disputes;
(11.1.4) break downs;
(11.1.5) inability to obtain goods, materials or services;
(11.1.6) interruption of transport;
(11,1.7) inclement weather;
(11.1.8) government action policy or direction;
(11.1.9) or any cause outside Hasemer’s control; or
(11.2) any acts, omissions, neglect or default of the customer, its servants or agents; or
(11.3) any breach by the customer, its servants or agents of any term of these Terms and Conditions.
The work will be executed in a proper and workmanlike manner and in accordance with the details, plans and specifications set out in the work order request, quotation or tender except that where such details, plans or specifications are of a type which appear to Hasemer to be inadequate or incorrect, Hasemer may, but is under no obligation to, make minor amendments thereto. Hasemer will not be responsible for any defects or inaccuracies resulting from inadequate or incorrect details, plans or specifications provided by the customer or prepared by a third party on the customers behalf.
(13.1) Hasemer hereby warrants that all goods supplied and/or manufactured by it are suitable and fit for their purpose at the time of delivery. In the event that a defect in the material or workmanship relating to the supply and/or manufacture of the goods arises within a period of 12 months from the date of supply and/or manufacture, or for a period as otherwise specified in the Hasemer Warranty Policy, Hasemer will repair or at its option replace, or pay the cost of replacing, the goods. Defective goods and replaced parts become the property of Hasemer upon replacement.
(13.2) The warranty is conditional on the products being used in accordance with the manufacturer’s instructions, and that the items are installed or serviced by Hasemer or their agents in accordance with the relevant Australian Standards.
(13.3) This warranty does not cover defects or damage caused by the customers:-
(a) improper installation of the goods;
(b) negligent, accidental or intentional misuse, maintenance or transport of the goods;
(c) repairs, service, alterations or damage to the goods or any part thereof performed by anyone other than Hasemerpersonnel; and
(d) fair wear and tear.
14. Delivery or Completion
Unless expressly agreed in writing all deliveries are from Hasemer’s premises and in the event that the delivery is to take place other than from Hasemer’s premises, Hasemer accepts no responsibility for any loss or damage howsoever arising during the course of loading, transit, unloading and during the course of any installation period.
Delivery times are quoted in good faith and are as accurate as we are able to estimate but are not guaranteed. The period quoted for delivery and completion commences after the receipt by us of the deposit as stipulated in the payment terms and all particulars, specifications, drawings, technical data, approvals or information affecting the execution of the order.
Delivery times quoted may be subject to adjustment due to prior sale of equipment before receipt of order.
With regard to items quoted that are not of our manufacture, the delivery times indicated are based on the manufacturers promised delivery to Hasemer or upon our estimate of delivery time. Hasemer will not accept liability for penalties or damages (either direct or indirect) for failure to delivery within the time, or by the dates quoted, unless expressly agree otherwise in writing. Notwithstanding the fat that we do so agree, in no event will Hasemer be liable for any delay or failure in delivery if any act, matter or event beyond our control causes such delay or failure.
15. Limitation of Liability
The customer agrees that it has not relied on any inducement, representation or statement made by or on behalf of Hasemer, its employees or agents in respect of the goods or services supplied by Hasemer. Notwithstanding any other provision of these Terms and Conditions, Hasemer is not liable for any claim for defective goods or services, or for any loss or damage to property (whether to property belonging to the client or another) or for death or personal injury (whether sustained by personnel of the client, a member of the public or another) caused or contributed to by any act or omission (negligent or otherwise) by Hasemer, its employees or agents. To the extent that any such liability cannot lawfully be wholly excluded, the liability of Hasemer is limited to supplying the relevant goods or services again or (at Hasemer’s option) paying the cost of replacing the relevant goods or supplying the relevant services again. The client will indemnify Hasemer and save Hasemer harmless in respect of all claims of liability of the kinds mentioned above brought against Hasemer or any Hasemer employee or agent.
16. Design and Drawings (Intellectual Property and Confidential Information)
Hasemer gives no undertaking or warranty that its specifications are exact and final and the customer acknowledges that variations may occur from time to time in the course of concept design, improvement, product development, implementation and manufacture which may result in a change from any initial or concept design in the ultimate construction of the goods. All plans, drawings, specifications, technical information, testing procedure, test results, data and the like is confidential and the sole property of Hasemer and may not be disclosed, reproduced or communicated to any person or used in a manner inconsistent with Hasemer’s rights of ownership, use or licence and commercial interests generally unless prior written authority is provided by a duly authorised officer of Hasemer.
17. Applicable Law
These terms and conditions are in all respects governed by and construed in accordance with the Laws in force in the State of NSW and the parties to these terms and conditions submit to the non-exclusive jurisdiction of the Courts of the State of NSW in respect of any dispute whatsoever arising out of these terms and conditions.