General Terms and Conditions of Order
1. Definitions
The following words shall have where the context so permits the following meanings:
“Agreement” means the agreement between the Supplier and the Purchaser consisting of these Terms and Conditions, Sales Order or Order and/or supplier invoices and any other schedules or annexures attached hereto.
“ACL” means the Australian Consumer Law.
“Goods" means all equipment, machinery, materials, supplies, services and the like to be provided by the Supplier under this Agreement.
“GST” means any goods and services tax including the tax imposed under A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended from time to time.
“Loss” means any damage, loss, liability, expense or cost whether direct or indirect, consequential or incidental.
“Purchaser” means the Purchaser, person, firm or corporation of the Goods to whom the Sales Order and/or Invoice is issued.
“PPSA” means the Personal Property Securities Act 2009 (Cth) and any other legislation and regulations in respect of it and the following words in the PPSA clause of this document have the respective meanings given then in the PPSA; collateral, financing change statement, financing statement, interested person, purchase money security interest, register, registration, security agreement, security interest, proceeds and verification statement.
“Sales Order” or “Order” means the agreement between the Supplier and the Purchaser incorporating the quotation, these General Terms and Conditions of Order, and all documents applicable thereto.
“Supplier” means Hawker Richardson a division of GCEM Pty Ltd A.B.N 50 088 908 927 or any of its Related Bodies Corporate (as that term is defined in the Corporations Act 2001 (Cth).
“Quotation” means the quotation provided to the Purchaser by the Supplier.
“Quotation Amendments” means any quotation amendments as agreed in writing, signed and annexed hereto.
2. Quotations
(a) Any quoted prices will remain valid for a period of 30 days from the Quotation date unless otherwise stated.
(b) Quotations are indicative of the price as at the date of the Quotation only. After the 30 day period prescribed in clause 2(a), the quoted prices are subject to alteration or revision without further notice
(c) Any Quotations made by the Supplier shall not be construed as an invitation to treat
(d) Any Quotation shall not be a binding offer to sell and no order given following any Quotation shall bind the Supplier until accepted by it in writing or by the commencement of the supply of Goods quoted.
(e) The Supplier reserves its right to accept or reject, at its discretion, any order for Goods.
(f) Any reduction to the original quantity quoted on may result in an increase to the quoted price.
(g) All prices quotes are exclusive of GST unless otherwise stated.
(h) All order or part orders will be invoiced at the price at the date of dispatch.
(i) Any Quotation Amendments shall be made in writing and signed by an authorised person of the Supplier. Any quotation amendments are at the sole discretion of the Supplier.
3. Cancellation or variation of orders
(a) No orders already made by the Purchaser and placed with the Supplier may be cancelled or varied by the Purchaser.
(b) The Supplier may consent to a cancellation or variation of an order made by the Purchaser, if the request to cancel or vary the order is made in writing and providing the reason for the cancellation or variation.
(c) The Supplier may consent to clause 3(b) subject to the Purchaser being required to pay to the Supplier a cancellation or variation fee which covers all out of pocket expenses including labour, materials, services, overhead expenses, professional expenses, and any profit the Supplier considers equitable in accepting a cancellation or variation
(d) The Supplier may at its absolute discretion withhold consent pursuant to clause 3(b) without required to give a reason.
(e) The Purchaser acknowledges that for custom made orders, once an order is made cancellation or variations are generally not accepted and will only be accepted in exceptional circumstances, and if accepted, the Purchaser acknowledges that the cancellation or variation fee will be significantly higher.
4. Pricing & GST
(a) All quoted prices are in Australian dollars (AUD) and exclusive of GST.
(b) All quoted prices include delivery, commissioning and operator training at the Purchaser’s facility.
(c) Lifting, transport within your facilities and connection to services is not included in the quoted price.
(d) Any relocation or removal of existing equipment to facilitate installation is not included in the quoted price and will incur additional charges.
(e) Quoted prices are based on the exchange rates listed on the Quotation. Any variation in actual exchange rate is applied to 85% of quoted price and will vary the final price.
(f) At the placement of order, the Supplier, being Hawker Richardson, will fix the Australian dollar price based on the currency rate obtained from our nominated bank and advise of the difference.
(g) If the Purchaser wishes the Supplier to float the exchange rate, the Foreign Exchange Instructions form is to be completed by the Purchaser and returned with the order.
(h) The Supplier shall be entitled to adjust the selling price of the goods, with reasonable notice to the Purchaser prior to the delivery of Goods, in the event of, and to take account of any increase in the cost of any of the following items that affect the agreed selling price of the goods:-
i. The Suppliers price to the Supplier.
ii. Freight, including cost of over carriage
iii. Insurance
iv. Exchange rates
v. Quarantine, customs or port charges; and Duty, charge or levy in respect of the import of goods or charges in the classification or value of goods for customs purposes
5. Terms of Payment
(a) The Purchaser will, and the Supplier will allow, payment terms for the quoted order to be paid in proportions being 70% at the time the Purchaser places the order; and the balance of 30% on delivery to purchasers facility or HR warehouse.
(b) Invoices will be issued for each instalment according to the payment terms listed in clause 5(a).
(c) Any payments requiring bank guarantee, letter of credit etc. are the responsibility of the Purchaser and shall not affect the Purchaser’s ability to pay the invoices when they fall due or payable. All costs associated with such arrangements are to be borne by the Purchaser.
(d) Interest at the rate of 14% per annum or such rate as may be prescribed by subsection 2(1) if the Penalty Interest Rate Act 1983 (Vic) (whichever is lesser) will be payable on the amount owing on the daily basis accruing from the due date until payment is made in full.
(e) Any payment by the Purchaser to the Supplier must be made without any deduction or counterclaim. The Purchaser shall not be entitled to exercise any right of set off or counter-claim in respect of any debt owed to the Supplier against any other debts, amounts or obligations owing under this or any other agreement.
6. Purchaser Obligation
(a) It is the Purchaser’s responsibility to ensure the site is a suitable environment and within installation specifications of the equipment purchased.
(b) The Purchaser must ensure site access and services are provided for delivery and commissioning within a timely manner.
(c) The Purchaser is to provide mechanised lifting equipment and personnel to assist with moving the equipment into place of installation. If additional labour is required, it shall be at the Purchaser’s expense.
(d) It is the Purchaser’s responsibility to pre-arrange and connect all necessary facilities, compressed air, electric, computers etc in a timely manner so the factory commissioning tests can be completed by the Supplier.
(e) Any additional PC’s, Servers or Network software that is required is the Purchaser’s responsibility unless mutually agreed.
(f) Any modifications, demolitions, closures of streets or lanes, traffic management are to be undertaken by the Purchaser.
(g) Any damage to site during installation is the Purchaser’s responsibility.
7. Insurance
(a) Insurance of all goods is at Suppliers’ care until delivered to the Purchaser dock.
(b) The Purchaser will, during the term of this Agreement, maintain the relevant insurance as required by law.
8. Warranty
(a) Except only for rights which the Purchaser has in respect of the supply of Goods under the Australian Consumer Law (ACL) and any other applicable laws and which cannot be lawfully be excluded, restricted or modified, the Purchaser agrees that:
(a) all conditions and warranties whether statutory or otherwise are excluded in relation to the Goods;
(b) the Supplier will not be liable for any Loss which the Purchaser suffers, incurs or is liable for in connection with supply for Goods under these Terms and Conditions by the Purchaser.
(g). Where is not permitted under the ACL or other applicable laws to exclude, restrict or modify its liability for the breach of a condition or warranty that is implied by the ACL or any other applicable laws but is permitted to limit its liability for the breach of such condition or warranty the Supplier’s liability is limited to any one of the following as determined by the Supplier:
i. the replacement of the Goods or the supply of equivalent Goods; or
ii. the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
iii. Equipment warranty is limited to a single shift operation.
iv. Labour Warranty is not included unless otherwise noted.
v. Warranty is 12 months from delivery ex works and warranty is provided by return of goods to the Supplier’s head office in 75-77 Westgate Drive, Altona North, Victoria 3025.
(h). The Purchaser acknowledges that it has not relied upon any representation made by the Supplier which has not been stated expressly in these Terms and Conditions. The Purchaser indemnifies the Supplier against all Loss incurred by the Supplier in connection with any act or omission of the Purchaser, including, but not limited to, negligence of the Purchaser or any unauthorised representation made or warranty given by the Purchaser in connection with Goods or any modification, misuse, abuse or tampering with the Goods.
(i). the Purchaser acknowledges that it has not relied upon the Purchaser in respect of the fitness for purpose of the Goods. The Purchaser has made its own enquiries in respect of the fitness of the Goods for a particular purpose and has appraised itself of the Manufacturer’s recommendations for use of the Goods.
(j). Where the Purchaser mixes or co-mingles the Goods with any other goods, the Purchaser warrants that it has the requisite knowledge and skill to use the Goods in that manner and indemnifies the Supplier in respect of any Loss arising from that use of the Goods.
(k). The Supplier shall not be liable to the Purchaser in respect of any reasonable variation between any sample and any Goods supplied to the Purchaser.
9. Delivery of Goods
(a) Delivery of Goods will be made at either the Purchaser’s facility or at the Purchaser’s designated address or at the Supplier’s head office or at a designated address nominated by the Supplier.
(b) Delivery and completion dates are estimates only and the Supplier reserves the right to rely on prompt receipt of all necessary information regarding the order from the Purchaser.
(c) The Supplier shall not be liable for any loss or damage howsoever arising as a result of consequence or any failure to deliver or delay in delivery arising from any circumstances.
(d) Delivery date is to be confirmed after receipt of order. Delivery time is estimated from the date of receipt of the order and sufficient sample parts to build and test systems where special requirements exist. Where design reviews are required, any delay in approving design will add to the overall delivery time.
(e) Any time or date given by the Supplier for delivery is made in good faith and intended as an estimate and is without responsibility for the consequences of delay.
(f) The Supplier will use its best endeavours to meet the estimated date or delivery or completion but will not be liable for any Loss sustained or incurred by any person and arising out of or as a result of any delay in delivery or completion due to any circumstance whatsoever.
(g) Delivery discrepancy claims must be notified to the Supplier within 7 days after receipt of Goods. The notification must include details of the original invoice and any other relevant information.
(h) All orders and contracts which are accepted are subject to Acts of God, strikes, lockouts, accidents and all other causes, as set out in clause 25 herein, which are beyond the Supplier’s control. The Supplier shall not be liable to pay any compensation or be held responsible for any loss or damage in this regard.
(i) The goods shall be collected by the Purchaser or as advised by the Purchaser to the Supplier at, or dispatched from, the Supplier’s premises specified in the quotation. The Supplier has the right to make partial deliveries against the Purchaser’s Sales Order and to invoice each partial delivery separately.
(j) The goods shall be deemed to have been delivered to the Purchaser when collected by the Purchaser or loaded on to the carrier’s vehicle at the Supplier’s premises (notwithstanding that the Supplier may have engaged the carrier).
(k) Goods should be examined on arrival and any apparent damage of loss endorsed on the carrier’s receipt. A detailed claim in writing for any damage or loss must be received by the carrier and the Supplier within five (5) working days of the date of the Supplier’s delivery docket. All claims and notifications must be sent by recorded delivery. Failure to comply with these conditions may invalidate any claim, at the Supplier’s discretion.
10. Special Equipment
(a) Where part specific equipment is ordered (such as engineered solutions, dispensing, and tooled bowl feeders) we reserve the right to review all Quotations after receipt of sufficient samples by our suppliers/sub-contractors, and may void without cost any Quotation which is not consistent with the actual application requirement.
(b) No drawings will be provided unless otherwise stated by the Supplier
11. Software & Manuals
(a) No software is provided unless otherwise specified by the Supplier.
(b) Any software that is provided is the responsibility of the Purchaser to keep this software up-to-date and pay any further subscriptions.
(c) Any software provided is for the supplied equipment only. The Supplier will not be responsible for connection to the Purchaser’s network unless specified by Supplier. Any additional software required to communicate with your network will be the responsibility of the Purchaser.
(d) No hardcopy manuals are provided unless otherwise specified.
12. Engineered Equipment
(a) The Supplier reserves the right to cancel any order for goods placed against the Quotation, should the goods not function when built in accordance with the quoted specifications. In such case, the development costs of the equipment are to be borne by the Supplier. We warrant the material and goods supplied to a Purchaser’s order for engineered equipment to be as specified and of good quality.
13. Breakdowns & Failures
(a)The Supplier shall not be held responsible for the breakdown or failure of the Supplier’s installations, where such breakdown or failure is due to overloading, or operation of the equipment outside the limits of the specification, or in an incorrect manner which is outside the control of the Supplier.
14. On Approval Goods
(a) In regard to merchandise sent to a Purchaser for inspection and evaluation, it shall be expressly understood that in the event of the return, subject goods shall be returned to the Supplier on a pre-paid basis and shall be in reasonably unused and new condition, or subject repairs shall be chargeable to the Purchaser.
15. General Exemption
(a)There is no condition or warranty other than that given by the manufacturer, expressed or implied as to the performance of any goods, or that they will be suitable for use under any specific conditions, or fit any specific purpose although such conditions or purpose may be known to the Supplier.
16. Title
(a)Title in and to the Goods, the subject of an invoice, shall not pass to the Purchaser until payment in full for all Goods is made.
(b) The purchaser acknowledges that until full payment is made for the Goods, the Purchaser holds and is in possession of the Goods as bailee and agent for and on behalf of the Supplier and that a fiduciary relationship exists between the Purchaser and the Supplier.
(c) Until full payment is made for all Goods, the Purchaser shall store the Goods separately and in such a manner that they are clearly identified as the property of the Supplier.
(d) The Purchaser acknowledges that if it sells any of the Supplier’s Goods, it sells the Goods as a fiduciary agent of the Supplier provided that such sales shall not give rise to any obligations on the part of the Supplier. The Purchaser shall hold the proceeds of sales on trust for the Supplier and shall hold the proceeds in a separate account.
(e) Until full payment is made for all Goods the Purchaser’s implied right to sell the Goods shall immediately terminate upon the happening of the following events:
i. The Purchaser being an individual commits an act of bankruptcy or has a controller or trustee appointed in respect of the Purchaser’s estate or any of the Purchaser’s property or assets;
ii. The Purchaser being a Supplier passes a resolution for its winding up or enters into liquidation or has an application for winding up filed against it;
iii. A receiver, receiver and manager, controller or voluntary administrator is appointed over any part of the property or assets of the Purchaser;
iv. Any distress or execution is levied upon or against any of the Purchaser’s assets;
v. The Purchaser experiences any analogous event having substantially similar effect to any of the events specified above.
(f) The Purchaser grants to the Supplier an irrevocable licence to enter the Purchaser’s premises, exercisable upon any event of termination specified in clause 24 occurring, which licence to enter permits the Supplier at its sole option, to enter the Purchaser’s premises and repossess and remove all Goods on the premises. The Purchaser consents to such actions and agrees that the Supplier will not be liable for any Loss or damage suffered by the Purchaser as a result of the Supplier taking such action.
(g) For the avoidance of doubt, notwithstanding the foregoing, all intellectual property rights in the Goods and associated trademarks and drawings shall at all times continue to remain the property of the Supplier.
17. PPSA
(a)The Purchaser acknowledges and agrees that this Agreement is a security agreement and creates a purchase money security interest in favour of the Supplier in accordance with the Personal Properties Securities Act (Cth) (PPSA).
(b) The Supplier must ensure that any proceeds are and remain identifiable or traceable in respect of the particular Goods from which they are derived or to which they relate.
(c) Nothing in this document may be construed as an agreement or consent by the Supplier to:
(i) subordinate any security interest granted in favour of the Supplier in favour of any person; or (ii) defer of postpone the date of attachment of any security interest granted in favour of the Supplier.
(d) The Purchaser consents to the Supplier effecting and maintaining a registration on the PPS register (in any manner the Supplier, or the Supplier’s solicitors, considers appropriate) in relation to any security interest contemplated or constituted by this document in the Goods and the proceeds arising in respect of any dealings in the Goods.
(e) The Purchaser agrees to sign any documents and provide all assistance and information to the Supplier required to facilitate the registration and maintenance of any security interest. Without limitations, the Supplier may at any time register a financing statement or financing change statement in respect of a security interest (including any purchase money security interest).
(f) The Supplier waives the right to receive notice of a verification statement in relation to any registration on the register of a security interest in respect of the Goods.
(g) The Purchaser undertakes to:
i. not, without the written consent of the Supplier, create or cause to be created a security interest over, or in respect of its rights in, the Goods, other than a security interest arising under this document and other than a security interest granted by the Purchaser in all of its assets in favour of a bank or similar financial institution.
ii. do anything (in each case, including executing any new document or providing any information) that is required by the Supplier:
A. to ensure that the security interest is enforceable against third parties, and is otherwise effective;
B. so that the Supplier acquires and maintains one or more perfected security interests of the highest priority available in respect of the Goods and any proceeds
C. to register a financing statement or financing change statement;
D. to ensure that the Supplier’s security position, and rights and obligations, are not adversely affected by the PPSA; and
iii. immediately notify the Supplier if any other person attempts to enforce a security interest in the Goods;
iv. not change its details recorded in a financing statement without giving the Supplier 10 business days’ notice.
(f) The Supplier and the Purchaser acknowledge that confidentiality shall not apply to the extent required for compliance with Part 8.4 of the PPSA and for the purpose of allowing the Supplier to obtain a credit report in respect of the Purchaser.
Upon passing of title of the Goods to the Purchaser, in accordance with clause 16, the Supplier undertakes to access the PPSR and release the security interest granted by the Purchaser.
(g)The Purchaser acknowledges that it must comply with all its legal obligations, under the PPSA and otherwise, when seeking to sell the Goods to a third party in the ordinary course of its business.
(h) The Purchaser acknowledges that it must give notice of the security interest to a third party in the ordinary course of its business.
18. Security
(a) In consideration of the Supplier supplying Goods to the Purchaser, the Purchaser hereby charges, in favour of the Supplier, all of its estate and interest legal and equitable in any real estate owned by the Purchaser wheresoever situate for any outstanding monies owing to the Supplier pursuant to this Agreement.
19. Acceptance
(a) Final acceptance shall occur immediately following the completion of commissioning. If acceptance is delayed for more than 5 business days for reasons not in the Supplier’s responsibility, final acceptance shall be deemed to have occurred.
(b) A factory commissioning test will be conducted according to the equipment manufacturers requirements. Any additional Purchaser specific test required will need to be defined and mutually agreed upon prior to placement of order by purchaser.
20. Return of Goods
(a) Goods accepted as being defective by the Supplier will upon return be replaced or repaired as originally ordered and at suppliers’ discretion. If practical but shall not form the subject of any claim whatsoever by the Purchaser except for the refund of any monies paid
(b) Where goods are returned and if accepted by the supplier for any other reason a restocking fee of 15% is applicable. Goods are to be returned in resalable condition within 7 days of initial delivery. Any goods that are non-stock items or specially manufactured are non-returnable.
(c) Any basis for the return of Goods shall be made in accordance with the ACL and any relevant clauses herein. In the event that the Goods are delivered of incorrect quantities, size or tolerances, a request must be written to the Supplier within 10 days of supply. Such occurrence does not permit the Purchaser to alter the original quantity unless the Supplier has so directed.
(d) The Supplier will not accept any claims for the return of Goods unless the Purchaser makes a written request within 7 days of delivery.
(e) The Supplier will not accept any returned goods in exchange for credit unless prior discussions have taken place between the Supplier and the Purchaser and further accompanied by a written request for credit within 7 days of delivery
21. Governing Law
(a) This Agreement shall be interpreted in accordance with and governed by the laws of the State of Victoria. The parties hereby submit to the exclusive jurisdiction of the Victorian courts and courts with appellate jurisdiction therefrom.
(b) Agreements are entered into subject to the foregoing conditions of sale. Unless expressly accepted by the Supplier in writing any terms and conditions of the Purchasers’ which conflict with, or in any respect qualify, or negate these conditions shall be deemed to be inapplicable.
22. Penalty Clause
(a) Penalty clauses of any description in any specification or order will not be accepted unless approved, in writing, under the signature of the Managing Director of Hawker Richardson, or any other authorised person as directed by the Managing Director of Hawker Richardson
23. Indemnity
(a) The Purchaser shall indemnify, and keep indemnified, the Supplier against loss, damage, or injury suffered by third parties arising out of the use of Goods supplied.
24. Termination
(a) It is an event of termination if:
i. the Purchaser breaches or fails to observe any of the terms of these Terms and Conditions;
ii. the Purchaser trades outside the terms and conditions of the Purchaser’s credit facilities (if any);
iii. the Purchaser becomes insolvent, the Purchaser or the guarantor of the Purchaser enters into liquidation/bankruptcy or the Supplier notifies in writing the Purchaser of its view that the Purchaser is in financial difficulties
iv. an administrator or receiver is appointed over all or any of the business undertaking of the Purchaser;
v. any guarantor of the Purchaser’s indebtedness to the Supplier revokes its guarantee; or
vi. the Purchaser fails to provide the Supplier with at least 14 days prior written notice of any proposed change of ownership of the Purchaser or any other change in the Purchaser’s details.
(b) If an event of termination as specified in clause 24(a)(i) to (vi) occurs, the Supplier will:
i. have an immediate right to possession of Goods held by the Purchaser and all amounts owing by the Purchaser in respect of the Goods together with the Debts owing by the Purchaser to the Supplier will become due and payable and must be paid by the Purchaser on demand by the Supplier; and
ii. be entitled (without prejudice to any other right or remedy provided under these Terms and Conditions or otherwise) to do any one or more of the following:
A. suspend indefinitely all further deliveries of Goods in respect of any order being processed for delivery and cancel any order or refuse to accept any further orders;
B. cancel any credit facility provided to the Purchaser;
C. require the return of all Goods the property in, and ownership of, has not passed in accordance with clause 6;
D. cease supply of goods to the Purchaser
(c)The Supplier will not be liable for any Loss (including Loss arising from negligence) suffered by the Purchaser as a result of the Supplier taking any action under this condition.
(d) In the event of default of payment by the Purchaser hereof all debt recovery costs including legal costs on a solicitor/own client basis and any mercantile agent costs shall be deemed to be part of the indebtedness of the Purchaser to the Supplier. A certificate signed by a Director or a Secretary for the time being of the Supplier as to any sum payable to the Supplier pursuant to this condition shall be conclusive evidence and proof of indebtedness the Purchaser to the Supplier at the time of the such certificate.
25. Force Majeure
(a) Where the Supplier is unable, wholly or in part, by reason of an act of God, strike, lockout or other interference with work, war (declared or undeclared), blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental or quasi-governmental restraint, unavailability or delay in availability or equipment or transport, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences, authorities or allocations, and any other cause whether of the kind specifically enumerated above or otherwise which is not reasonably within the control of the Supplier (“Force Majeure”) to carry out any obligation under this Agreement, the Supplier will notify the Purchaser of that Force Majeure and the performance of the Supplier's obligations will then be suspended so far as it is affected by force majeure during the continuance thereof.
26. Non-Assignment & Waiver
(a) The Purchaser may not assign, novate or transfer, or otherwise deal with, any of its rights or obligations under these Terms and Conditions to any other person whatsoever without the prior written consent of the Supplier which may be withheld at the absolute discretion of the Supplier and without the Supplier having to provide a reason.
(b) A single or partial exercise or waiver of a right relating to the Terms and Conditions by the Supplier will not prevent any other exercise of that right or the exercise of any other right by the Supplier.
27. Tolerances
(a) References to size, width, gauge and weight etc are approximates only. Whilst every effort is made for these figures to be accurate, the Purchaser acknowledges that the specification of goods manufactured and supplied by the Supplier is subject to normal trade tolerances.
28. Risk in the Goods
(a) Risk in the goods shall pass to the Purchaser upon delivery or on collection of Goods by the Purchaser, whichever is earlier.
(b) The Purchaser must insure the Goods from the time of delivery to the Purchaser and, pending payment in full, insure the goods in the names of the Supplier and the Purchaser for their respective interests. Any materials supplied by the Purchaser to the Supplier are supplied at the Purchaser’s risk in all respects.
29. Limited Liability
(a) To the extent possible, the Supplier will endeavour to continue to supply parts and support the equipment to the Customer, however, the Supplier reserves their rights in full to refuse and/or decline to service and/or repair the Customer’s equipment in the event that the Supplier no longer distributes any listed product(s). The Supplier shall not be liable whatsoever for any loss or damage that may arise in this regard.
(b) In no event shall the Supplier be responsible for any consequential loss, penalties, expenditure, damages of losses suffered or incurred by the Purchaser arising out of any delay in delivery or caused by or arising out of any use of or dealing with the goods, whether arising from any defect in the goods, unsuitability for the Purchaser’s purpose, negligence by the Supplier or its employees or agents or in any other way.
b) Unless otherwise agreed in writing, the Supplier’s liability to the Purchaser for breach of any mandatory conditions and warranties implied into the agreement between the Supplier and the Purchaser for the supply of the goods by operation of the Australian Consumer Law is limited, at the Supplier’s option to:
i. Replacing the goods or supplying equivalent goods; or
ii. Paying the cost of replacing the goods or acquiring equivalent good.
(c) Without prejudice to paragraphs 29(a) and (b) and subject to the Australian Consumer Laws
i. Any goods supplied, but not manufactured, by the Supplier shall be covered only by the express warranty, if any, of the manufacturer of such goods
ii. the Supplier and its suppliers shall have no obligation in respect of any goods which have been improperly stored or handled or which have not been installed, operated or maintained according to instructions given by the Supplier or contained in supplier furnished manuals; and
iii. Any such warranty shall be void if the Purchaser replaces any goods supplied or proposed to be supplied by the Supplier with goods supplied by any other person.
(d) For the purpose of ensuring proper installation of the goods, the Purchaser hereby grants the Supplier reasonable access to the installation site and shall comply with any directions given by the Supplier regarding the correct method of installation.
(e) The Purchaser shall indemnify the Supplier against all costs, losses and damages (including but not limited to legal costs on a solicitor / client basis, accounting costs and loss of profit) incurred or suffered by the Supplier as a result of any default and actions taken by the Supplier in respect of any default.