1.       DEFINITIONS

1.1 "Vendor" means P.HOLMES CONSULTING.

1.2 "Purchaser" means the person or company to whom or to which this document is addressed overleaf or by direct mailing.

1.3 "Goods" means the goods and services, equipment, material and/or chattels supplied by the Vendor to the Purchaser.

 

2.      GENERAL

2.1 These terms form part of any quotation or contract to which they are attached, and any Goods to be supplied, or supplied, by the Vendor will be or are supplied subject to these terms.

2.2 If there is any inconsistency or variance between the provisions of any quotation by the Vendor and these terms then the former shall prevail to the extent of the inconsistency or variance PROVIDED THAT notwithstanding any acceptance by the Vendor of any order or offer to purchase from the Purchaser that may contain any provision inconsistent with or purporting to vary or reject any of these terms, any contract between the Vendor and the Purchaser arising from the Vendor's acceptance of such order or offer to purchase shall be subject to these terms unless and to the extent only that the Vendor expressly agrees in writing to any variation thereof.

2.3 THE PURCHASER'S ATTENTION IS DRAWN TO STATUTORY PROVISIONS WHICH MAY APPLY TO THIS CONTRACT Any rights, remedies, liabilities, conditions, warranties, standards or specifications which apply to or in respect of any contract arising between the Vendor and the Purchaser under or by virtue of the Trade Practices Act 1974 or any other enactment of Australia or of any State or Territory thereof affecting such contract and which cannot be excluded from such contract are deemed to apply to such contract notwithstanding any inconsistency With these terms.  Subject to the aforesaid, no warranties expressed or implied by law and no representations or statements are binding on the Vendor unless set out in these terms or expressly incorporated into these terms by reference in writing.

 

3.       QUOTATION AND OFFER TO PURCHASE

3.1 Every quotation of the Vendor is by way of an invitation to treat only and shall not be deemed to be an offer by the Vendor.  There shall be no contract between the Vendor and the Purchaser until the Purchaser's order is accepted by the Vendor in writing and such contract shall only be on theterms contained herein.

3.2 The Vendor's quotation relates only to such Goods as are specified therein and is given subject to such Goods being available at the time of receipt of the Purchaser's order. 3.3 Prices included in the Vendor's quotation are based upon the quantities of Goods referred to in the quotation.  Should the Purchaser offer to purchase a quantity of Goods which is at variance with the quantity referred to in the quotation the Vendor reserves the right to amend the price quoted for such Goods.

 

4.       SPECIFICATIONS AND DRAWINGS

          4.1 Not Part of Contract

All descriptive and shipping specifications, drawings, dimensions and weights submitted by the Vendor in relation to any quotation are approximate only and any descriptions, illustrations and data contained in any catalogues, price lists and/or other advertising or promotional material are intended by the Vendor only to present a general view of Goods described therein and none of such specifications, drawings, dimensions, weights, descriptions, illustrations or data shall form part of any contract arising between the Vendor and the Purchaser.

 

4.2 Incorrect Information

The Purchaser shall be responsible for and bear the cost of any alteration to Goods supplied by the Vendor arising from any discrepancy, error or omission in any drawing, specification or other information supplied by or approved by the Purchaser.

4.3 Suitability for Purpose

Unless the Vendor has specifically been advised in writing it has no knowledge of the use to which the Purchaser proposes to put any Goods supplied by the Vendor to the Purchaser.

 

5.   PERFORMANCE

5.1 Performance

Any performance figures provided by the Vendor are based on the Vendor's experience and are such as the Vendor could expect to obtain on test.  The Vendor shall be under no liability for damages should Goods supplied by it fail to attain such performance figures.

 

6.   TIME/DATE FOR SUPPLY

6.1 Quoted Time

The Vendor will use reasonable encleavours to meet any delivery or completion date or period quoted but such date or time is a bona fide estimate only and is not to be construed as a fixed date or time.

 

7.   POINT OF DELIVERY

7.1 Delivery ex-works

Unless stated otherwise in any quotation, Goods are supplied ex-works at the place of manufacture and delivery to a carrier's vehicle, including loading, shall constitute deliver by the Vendor to the Purchaser.

7.2 Damage or Loss in Transit

Where damage in the course of delivery is the Vendor's responsibility the Vendor shall at its sole discretion repair or replace free of charge Goods so damaged provided the Vendor is notified of such damage within three days of delivery.

7.3 Shortages in Delivery

Any claims for shortages in deliveries shall be notified in writing to the Vendor within ten days of receipt of such delivery.

7.4 Partial Deliveries

The Vendor reserves the right to make partial deliveries of any Goods the subject of any contracts between the Vendor and the Purchaser and to invoice such deliveries separately.

 

8.   RISK AND PROPERTY Risk

8.1 Risk in Goods the subject of any contract between the Vendor and the Purchaser shall remain with the Vendor only until the first in time of any one of the following events:

(i)   the passing of property in such Goods to the Purchaser; or

(ii)  the delivery of such Goods by the Vendor to the Purchaser or to a carrier at the contractual point of delivery; or

(iii) upon such Goods leaving the Vendor's premises at the request of the Purchaser; or

(iv) the expiry of 14 days from the date of notification by the Vendor to the Purchaser that such Goods are ready for delivery;and thereafter risk of damage, loss or deterioration of the Goods from any cause whatsoever shall pass to the Purchaser.

Preservation of Property Rights

8.2 Notwithstanding that risk in any Goods the subject of a contract between the Vendor and the Purchaser may in whole or in part be with the Purchaser title and property in such Goods shall remain with the Vendor until paid for by the Purchaser.  Prior to the passing of property in such Goods they may not be resold, pledged or given in security by the Purchaser in any circumstances whatsoever.

 

9.   PRICES AND CONTRACT PRICE ADJUSTMENT

9.1 Price Basis

Prices quoted by the Vendor are those ruling at the date of quotation and shall be subject to variation without notice.

9.2 Sales Tax and other excluded charges

Unless otherwise stated in writing in any quotation Sales Tax or any other tax, levy or the like imposed on either the sale, manufacture, dealing with, distribution, import or use of goods or measured by the selling price of goods or otherwise howsoever included in or added to the price of goods shall in all cases be an excluded charge.

 

10. PAYMENT

10. 1 Payment Due

Unless otherwise agreed in writing by the Vendor and the Purchaser payment shall be due with acceptance of order by vendor.

10.2 Delay or Default in Payment

Should the Purchaser make default in respect of any payment due to the Vendor then the Vendor shall have the right, in addition to all other rights to which it is entitled at law, to charge interest on the overdue amount at such rate as would be charged to the Vendor by its bankers for overdraft accommodation and calculated from the due date of payment to the actual date of full and final payment.  Any payment subsequently made by the Purchaser to the Vendor shall be credited first against any interest so accrued.

 

11. WARRANTY

11.1      (i)      The Vendor hereby warrants to the Purchaser that Goods supplied by the Vendor, or its related companies, shall be free from defects due to faulty design, materials and workmanship (except as regards defects specifically drawn to the Purchaser's attention, before any contract is formed between the Vendor and the Purchaser or, if the Purchaser examines the Goods the subject of such contract before such contract is formed then except as regards defects which that examination ought to reveal).

          (ii)     With respect to Goods or parts or components of Goods purchased by the Vendor and sold to the Purchaser which are not manufactured by the Vendor or its related companies, the Vendor will use its reasonable endeavours to assign to the Purchaser any warranties which the Vendor may have received from the supplier of such Goods or parts or components.

 

11.2   If it is proven to the Vendor's reasonable satisfaction that Goods manufactured by the Vendor or its related companies are not free from defects due to faulty design, materials and workmanship (except as revealed by examination as referred to in clause 11.1 of these terms) then the Vendor shall, at its cost and at its option, either:

(i)      repair such Goods; or

(ii)     replace such Goods with the same or equivalent Goods at the point of delivery applicable to the contract under which such Goods were supplied to the Purchaser by the Vendor; or

(iii)    refund to the Purchaser the contract price of such Goods.

 

11.3 This warranty does not apply in respect of defects due to or arising from:

(i)incorrect or negligent handling, disregard of operating and/or maintenance instructions, overloading, unsuitable operating conditions, defective civil or building work, lightning, accident, neglect, faulty erection (unless carried out by the Vendor), acts of God, causes beyond the Vendor'scontrol or whilst unauthorised repairs or alterations have been carried out; or (ii) the use of Goods of a consumable nature.

11.4 This warranty does not apply unless:

(i)      the Goods have been properly handled, located, used, maintained and stored; and

(ii)     defects occur within 3 calendar months after the Goods have been delivered to the Purchaser or, if delivery was delayed for reasons beyond the Vendor's control, then within 3 calendar months of deliveries or within 6 calendar months after the Vendor was ready to deliver the Goods (whichever period expires earlier),

(iii)    the Vendor is notified in writing within seven days of the alleged defect first coming to the notice of the Purchaser and the Purchaser returns the defective Goods to the Vendor, or if necessary, at the sole discretion of the Vendor, to the works where such Goods were manufactured or assembled, free of charge; and

(iv)    the Purchaser has fulfilled all of his/its contractual obligations.

11.5   The benefit of this Warranty is personal to the Purchaser and is non-assignable without the prior written consent of the Vendor.

 

12. LIMITATION OF LIABILITY

12.1   Subject to clause 2.3, 7.2 and 1 1 of these terms, but notwithstanding anything else expressed or implied in these terms the Vendor shall not be liable for any injury to persons or damage to property or for any special indirect or consequential loss or damage whatsoever such as but not limited to loss of profits, loss of use, loss of power, costs of capital or costs of replacement power arising in any way whether directly or indirectly and whether as a result of negligence on the part of the Vendor or its servants, agents and contractors or otherwise arising out of or resulting from whether directly or indirectly the use or installation of the Goods except in the case where the Purchaser is a “consumer" for the purposes of the Trade Practices Act 1974, in which case the Vendor's liability shall be limited to and may be fully discharged by, at the Vendor's sole discretion, the replacement of Goods or the supply of equivalent Goods or a refund of all payments made under the relevant contract.

 

 

 

 

13. LEGAL CONSTRUCTION

      Except as may be otherwise agreed in writing between the Vendor and the Purchaser any contract arising between the Vendor and the Purchaser shall be construed and operate as an Australian contract and in conformity with the laws of and applicable in the State of Queensland and the Vendor and Purchaser agree to submit to courts having jurisdiction in that State.

 

14. GST

GST means any tax, levy, charge or impost implemented under the A New Tax System (Goods and Services Tax) Act (the “GST Act”) or any Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act

                         

The price shown in this contract does not include GST.

 

If the Vendor becomes liable to pay GST in respect of the sale or supply of the subject matter of this contract, the price payable under this contract will be increased so that after payment of the GST by the Vendor, the nett amount retained by the Vendor is the same as before GST applied.

 

If the Vendor becomes liable to pay GST, the Vendor will notify the Purchaser of the amount of GST to be paid and will provide the Purchaser with the appropriate invoice including a reference to the applicable amount of GST.

 

The Purchaser shall pay that invoice pursuant to the terms and conditions of this Agreement