2. PROPERTY RISK AND TITLE:
2.1. Both the legal and equitable title to all the goods is retained by KS until full payment is made to KS for all the goods and/or services. 2.2 It is not intended by KS or the Customer that by supplying or accepting goods and/or services on the Terms of this clause 2, to create a charge, mortgage or other mere security interest over any goods supplied. 2.3 The Customer agrees to indemnify KS against all expenses losses and damages incurred or sustained by KS (including legal costs on a solicitor and own Customer basis) as a result of or in relation to the exercise by KS of its rights under these Terms. 2.4 The Customer assumes all risk of loss and/or damage to the goods upon delivery of the goods to the Customer. 2.5 Expressions used in this clause and in the Personal Property Securities Act 2009 (Cth) (‘PPSA’) have the same meanings as when used in the PPSA. 2.6 If KS already has a prior registered security interest in the goods supplied that security interest continues in the goods. The Customer acknowledges the Terms and/or Contract Documents create a security interest in favour of KS for the purposes of the PPSA and: 2.6.a KS may register this security interest with the Registrar of Personal Property Securities pursuant to the PPSA in order to perfect its security interest; 2.6.b The Customer agrees the security interest granted to KS pursuant to the Terms and/or Contract Documents may be a purchase money security interest for the purpose of the PPSA. 2.6.c If requested, the Customer must pay or reimburse the costs of registering the security interest, and provide KS with all assistance reasonably required in order for KS to register the security interest; and 2.6.d for the purpose of Section 115 of the PPSA, the following sections of the Act do not apply to this quotation: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4) and 135. 2.6.e The Customer authorises KS to search the Personal Property Securities Register at any time for any information about the Customer. 2.6.f The Customer waives its right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to any security interest granted under the Terms and/or Contract Documents in relation to commercial property.
3. DELIVERY AND DELIVERY DATE:
3.1 Any time or date before delivery specified by KS is an estimate only. KS shall take all reasonable steps to deliver the goods on or about such time or date. However, KS shall not be liable for failure or delay in delivery or for any loss or damage resulting directly or indirectly from the failure or delay in delivery of the goods irrespective of whether any such failure or delay is negligent or is within KS’s control or otherwise. 3.2 Any agreement or undertaking by KS to deliver the goods is contingent upon its ability to secure and/or supply the goods. 3.3 The Customer shall accept delivery of the goods at the point of delivery of the Customer that is agreed between the parties. 3.4 If there is a substantial delay on the part of the Customer in accepting delivery of the goods, KS shall be entitled to charge to the Customer such extra costs of storage and/or other expenses as are incurred by KS. These goods placed in storage will be at the risk of Customer.
If the Customer fails to pay the purchase price to KS in full in accordance with Clause 1 then in addition to its other rights under these Terms, KS may charge the Customer interest calculated from the day following the date upon which the payment should have been made at the rate of the 90 day Bank Bill Swap Reference rate for that day, plus 5%.
5. WAIVER OR ALTERATION:
5.1 No waiver or alteration of these Terms shall be binding upon KS unless a duly authorised officer of KS consents to the same in writing. 5.2 Customer warrants that any officers signing documents on Customer’s behalf are duly authorised and all information provided by Customer is true and correct, not misleading and deceptive.
6. PERSONAL GUARANTEES:
If required, the Customer, if a company, shall cause personal guarantees in a form acceptable to KS to be signed and delivered to KS prior to delivery of goods and/or services.
7. ACCOUNT KEEPING FEE, BANK CHARGES, ETC:
The Customer, if required by KS, the customer will pay an account keeping fee (which may be varied by KS without notice) for transactions made with KS during each month and to pay an administration fee for any payments by credit card.
8. LIMITATION OF LIABILITY
8.1 KS makes no warranty in respect of the goods and/or services sold. 8.2 Except as otherwise expressly provided in these Terms, and subject to clause 8.4, KS excludes all statements, representations, warranties, conditions, promises, undertakings, covenants and other provisions, express or implied (and whether implied by law or otherwise), relating to the goods and/or services, whether as to the quality, fitness for any purpose, correspondence with any description or sample or otherwise, or their delivery, being provisions that might otherwise form part of these Terms or any Contract Documents or be collateral to or form part of any agreement that is collateral to these Terms or any Contract Documents. It is expressly acknowledged by the parties that the whole of the Terms save for any details entered on any Contract Documents are contained in these Terms. 8.3 Subject to clause 8.4 KS shall not be liable to compensate or indemnify the Customer for any loss or damage suffered or incurred by the Customer in relation to the goods and/or services, or their delivery (including but not limited to any loss or profits or other economic loss arising from negligence or any other tort in any case whether direct, indirect, consequential or otherwise). 8.4 Where Customer acquires goods and/or services as a ‘consumer’ within section 3 of Australian Consumer Law (Cth) these provisions do not, and no provision of these Terms exclude, restrict or modify or have the effect of excluding, restricting or modifying: 8.4.a the application of any provision of Australian Consumer Law (Cth) in relation to the supply of goods and/or services; 8.4.b the exercise of a right conferred by such provision, subject to condition 9 or 8.4.c liability of KS for breach of condition or warranty implied by such a provision. 8.5 Customer acknowledges it has assessed the suitability of the goods and/or services and is satisfied they are suitable for its purposes and will use them at its own risk.
9. LIMITATION OF CLAIMS
9.1 Where legislation implies in these Terms any condition or warranty that cannot be excluded or modified, the liability of KS for a breach of such is limited at KS’s option to any one or more of the following: 9.1.a Services :- refunding the fee paid or supplying those services again. 9.1.b Goods:- replacement by same or equivalent item, repair or repayment 9.2 KS may at its discretion choose which option in 9.1 shall apply provided that: 9.2.a KS is promptly notified of the defect; 9.2.b The customer assumes payment or transportation charges to KS’s Melbourne repair facility;
9.2.c.The defect was not caused by misuse in which case all costs shall be borne by the Customer; 9.2.d The goods and/or services were not purchased under terms granted in lieu of warranty and if during the warranty period additional or substitute parts are supplied for the goods returned, the period covered by warranty shall not in any case extend beyond the warranty period from the date of delivery of original goods and/or services.
The Customer agrees and declares that any proceedings in respect of any cause arising hereunder is governed by the Laws of the State of New South Wales and the application of the United Nations Convention on Contract Documents for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded.
11. CUSTOMER’S DEFAULT:
If the Customer (a) does not make any payment by the due date; (b) exceeds its credit limit at any time; (c ) commits any other material breach of these Terms; or (d) commits an insolvency event or is reasonably suspected of committing by KS, KS may do any or all of the following: (i) vary or withdraw any approved credit limit and/or terms of trade; (ii) cancel or suspend any unfilled orders or cease providing services; (iii) terminate any orders or Contract Documents with Customer and demand immediate payment; (iv) enter any premises where KS’s goods are stored to reclaim possession without liability for trespass, negligence or compensation.
12. VARIATIONS OF PRICE:
12.1 Any quotation is based on the basic exchange rate ruling on the date of the quotation. Should the exchange rate at which KS settles its accounts with its overseas suppliers vary by more than one percent, such fluctuation will be an added cost to the Customer. 12.2 All prices are based on the full quantities specified in the Customer’s Contract Documents and do not necessarily operate pro rata for any greater or lesser quantities. 12.3 A goods and services tax, value added tax and/or other similar tax will be charged at the appropriate rate in force at the time of invoice. 12.4 Prices include all imposts, charges and duties currently applicable and the Customer shall be required to pay KS any further amounts that may become payable by KS as a result of any increase in the imposts, charges and duties applicable to the sales. 12.5 Where prices are quoted they are variable by an amount equivalent to the actual decrease or increase in the costs resulting from variations in freight and handling charges which vary in the costs from those current at the date of any offer, or outside the validity period.
13. RETURNS AND CLAIMS:
13.1 Customer must inspect goods or services immediately following delivery or completion and subject to the provisions of the Australian Consumer Law (C’wlth) or any applicable consumer law, any claim must be received within 7 days of such delivery or completion. 13.2 If Customer fails to make a claim then, to the extent permitted by law, the goods and/or services are deemed to have been accepted by Customer and must be paid for in accordance with these Terms. 13.3 Any goods being returned are to be labelled and consigned to KS and the procedure to be followed for return is as follows: 13.3.a an approval for return and an approval number must first be obtained from a duly authorised KS officer;13.3.b the goods to be returned must be in the original packing and all accessories are to be included; 13.3.c the goods must be in an undamaged and saleable condition and KS’s return approval number must be clearly visible; 13.3.d the returned goods shall be accompanied by KS’s claim form and Customer shall indicate the purchase invoice number and date and the reason for the return.
14. SPECIAL LICENCE:
In the event goods or a component of goods contain a copyright work or other thing to which intellectual property rights apply, usage shall be by licence only on the terms and conditions of the owner’s licence. The Customer shall not cause or permit to be done anything in contravention of such licence and is subject to all duties and responsibilities imposed by such licence.
The Customer agrees that until it has paid the full invoice price and any other payments due to KS in respect of the goods and/or services it must not on-hire the goods unless it receives the prior written consent of KS. KS’s consent may be withheld in its absolute discretion.
All notices to Customer shall be considered sufficiently delivered in the ordinary course of post to the last known address of the Customer. All notices shall be deemed to have been delivered one day after mailing.
17. COLLECTION OF GOODS:
An official order must be presented to obtain any goods on account.
18. FREIGHT CHARGES:
All prices quoted are Delivery Duty Paid (as defined in Incoterms® 2009, International Chamber of Commerce ) to the Customer’s nominated destination, unless written otherwise in KS’s Contract Documents.
19. CUSTOMS AND EXCISE TARIFFS:
The duty paid contained in any Contract Document are KS’ estimate only based on the tariff, item, or by-law considered by KS to be applicable. KS makes no warranty as to the accuracy of its estimate and the Customer must assess the amount of duty applicable. The Customer agrees to pay the actual duty paid price. 20. FORCE MAJEURE: If, for any cause, beyond KS’s control, including without limitation, any act of God, war, strike, lock out, industrial dispute, governmental or semi-governmental award or restriction, fire, flood, storm, delay in obtaining licenses, transport, labour or materials, accidents, damage to KS’s works or business or those of its suppliers, KS is prevented from making delivery or performance at the time stipulated, KS will be entitled at its option either to extend the time for delivery or performance for a reasonable period or to terminate the order. In those circumstances, Customer does not have any claim for damages and agrees to pay for all deliveries made or services performed prior to the date of termination and all expenses incurred and monies paid by the Customer in connection with the order. 21. INSTALLATION/COMMISSIONING: 21.1 Installation or Commissioning shall not be carried out by KS unless previously agreed in writing. Where KS undertakes installation or commissioning, it is the Customer’s responsibility to provide any services and utilities required including, but not limited to electrical, air, water and waste connections. Where special handling or lifting equipment is required all costs and risks shall be borne by the Customer.
20. FORCE MAJEURE:
If, for any cause, beyond KS’s control, including without limitation, any act of God, war, strike, lock out, industrial dispute, governmental or semi-governmental award or restriction, fire, flood, storm, delay in obtaining licenses, transport, labour or materials, accidents, damage to KS’s works or business or those of its suppliers, KS is prevented from making delivery or performance at the time stipulated, KS will be entitled at its option either to extend the time for delivery or performance for a reasonable period or to terminate the order. In those circumstances, Customer does not have any claim for damages and agrees to pay for all deliveries made or services performed prior to the date of termination and all expenses incurred and monies paid by the Customer in connection with the order.
21.1 Installation or Commissioning shall not be carried out by KS unless previously agreed in writing. Where KS undertakes installation or commissioning, it is the Customer’s responsibility to provide any services and utilities required including, but not limited to electrical, air, water and waste connections. Where special handling or lifting equipment is required all costs and risks shall be borne by the Customer.21.2 Installation will be made at the time specified in the Contract Documents and the goods will be at Customer’s risk. Goods will be installed and placed in operating condition using test procedures and programs established by KS. KS shall not be obliged to install goods if the goods were modified without KS’s approval or were subject to unusual stress, accident, misuse or other damage. 21.3 If KS employees or authorised representatives attend any premises as directed by Customer to install or apply any goods or perform any services, Customer will ensure appropriate policies and procedures are in place and followed and implement good industry practice and act consistently with KS policies as notified to Customer. 21.4 For any delay to KS installation/commissioning caused by site works, access problems or other causes outside KS’s control (i.e. “force majeure” – see clause 20), additional labour and/or travel costs will be the responsibility of the client. 21.5 KS will not be responsible for installation services other than those detailed in the Contract Documents. 21.6 Variation to scope of installation outside the original design parameters may result in reevaluation and re-costing by KS. 21.7 KS warrants only installation works performed by KS or its subcontractors, and does not warrant other equipment connected to the installation provided by other suppliers, or related works performed by other suppliers.
22. GOODS ON APPROVAL:
This clause applies if goods are loaned to the Customer on approval (“Loan Goods”). 22.1 Where KS provides Customer with Loan Goods (and including any accessories) then Customer must: (a) only use the Loan Goods for normal daily use and for evaluation purposes and in the manner which the KS directs; (b) exercise the utmost care and diligence in relation to the Loan Goods; (c ) not sell, hire, re-loan, demonstrate to a third party or use in a commercial manner the Loan Goods or otherwise charge, pledge or part with possession of them; (d) not alter, modify, tamper or make any other adjustments to the Loan Goods; (e) where goods were originally supplied in a special manufacturer’s carton, they must be returned in that original carton and the goods must be in their original and unmarked condition, complete with any instruction sheets supplied. 22.2 Customer warrants that it has the necessary skill and expertise to enable the Loan Goods to be sufficiently evaluated so as not to cause loss or damage to them. 22.3 If KS requests the return of the Loan Goods (which the KS is entitled to do prior to the Loan Period ending, without giving any reason or prior notice), or the loan period ends without Customer buying the Loan Goods, Customer must promptly return the Loan Goods to KS at Customer’s expense. 22.4 If, on return to KS, the Loan Goods require repair (including realignment) to restore them to their condition at the time is of the initial loan, KS will be entitled to recover from Customer the reasonable cost of repairing or replacing them. If they are used with bio-hazardous materials, the Loan Goods must be cleaned and/or decontaminated at Customer’s expense prior to return. 22.5 The loan period may only be extended if the Customer has obtained the written consent of KS. 22.6 The Loan Goods remain the property of KS. Customer must insure them with a reputable insurance company against any loss to Loan Goods, damage to real and personal property or injury to or death of, any person caused by the use of the Loan Goods by Customer.
23. EQUIPMENT MAINTENANCE SERVICES:
This clause applies where KS provides equipment maintenance services (“Equipment Kenelec Scientific P/L GT&C Page 7 of 9 16/November/2015 Maintenance Services”) to the Customer in return for the service fee as set out in the Contract Documents. 23.1 Customer will pay the fee to KS in accordance with the Contract Documents and KS reserves the right to vary the service fee payable for Equipment Maintenance Services. 23.2 Equipment Maintenance Services will be provided for the period specified in the Contract Documents, and will then continue automatically to be renewed for further 12 month periods unless terminated by either party at least 30 days prior to the start of a new 12 month period. 23.3 Equipment Maintenance Services will be performed by a service engineer or authorised contractor who will make the specified number of routine calls during the service period (as set out in the Contract Documents). 23.4 Equipment Maintenance Services does not cover repair, damage due to fire, water, accident, abuse, negligence, wilful act or default by Customer. Abuse includes any damage resulting from the operation of the goods and/or services other than in accordance with the operating instructions provided by the manufacturer, its representatives, or those of KS. 23.5 Customer must notify KS of any change in location of the goods being maintained. KS may terminate the order or increase the service fee if additional costs would result from the location change. 23.6 In addition to KS’ general rights of termination, KS reserves the right to terminate this agreement if the goods, serviced equipment, or loan goods are repaired or modified without KS prior knowledge or consent or KS ceases to have rights to distribute the goods or to provide the services. Customer releases KS from any liability if these terms and conditions are terminated under this clause.
24. CALIBRATION AND REPAIR SERVICES:
24.1 KS will supply services to the Customer for verification of equipment accuracy to the agreed specification by comparison with a reference standard (“Calibration Service”) and, at KS’ discretion, any adjustment and/or re-verification. 24.2 Any of the following events are deemed to be variations: 24.2.1 Customer requests changes, additions or variations to the goods or services as outlined in the Contract Documents or as agreed in writing; 24.2.2 KS determines during a Calibration Service the goods require a repair service; 24.2.3 The goods are unusually dirty or contaminated and require cleaning or decontamination. If there is a variation pursuant to clause 24, KS may reject the request for variation or provide a revised fee for the goods or services. 24.3 Customer is entirely responsible for ensuring goods are calibrated and serviced at appropriate frequency regardless of any estimates provided by KS. 24.4 Customer must organise and pay the costs of transport of goods to and from KS. 24.5 Customer bears all risk of loss or damage of goods while in transit or at KS. 24.6 Customer must provide the goods properly cleaned, packaged and in good order. 24.7 Customer must ensure that the goods are clearly and permanently marked with a distinguishing number or symbol to ensure identification. 24.8 Customer must ensure each package is marked with its contents, name, address and telephone number of a technical contact person. 24.9 Customer acknowledges KS owns the copyright in any report or services rendered and reproduction of that data in any way without the consent KS will constitute a breach of the Copyright Act 1968 (Cth). 24.10 KS does not warrant the accuracy or completeness of the information contained in any report or service and any person using or relying upon such information does so on the basis that KS accepts no responsibility or liability whatsoever for any errors, faults, defects or omissions in the information supplied. 24.11 Customer indemnifies KS for all harm (including costs on a solicitor and own Customer basis) that KS may suffer as a result of any claim by a third party involving the Customer’s use of Kenelec Scientific P/L GT&C Page 8 of 9 16/November/2015 KS report. 24.12 Customer must, if required in writing by KS, maintain and provide evidence of adequate professional indemnity, product liability and third party liability insurance to cover its obligations and exercise of rights under this Contract; 24.14 Customer acknowledges that KS may, by notice in writing, delay the performance of its obligations under this Contract because of its limited resources, other research priorities, or delays by the Customer in providing the goods; and is not liable for any failure to carry out part or all of its obligations under this Contract if that failure is due to any cause beyond the reasonable control of KS. 24.15. KS retains ownership of KS’ report copyright and with effect immediately after KS has been paid the fee, grants Customer a non-exclusive, royalty free licence to use KS’ report copyright for the purpose of reporting measurement results for the Customer’s own internal activities.
25. RENTAL GOODS:
25.1 Customer will pay a rental fee if goods are hired or rented (“Rental Goods”) from KS in accordance with the payment terms specified in an order or other Contract Documents. 25.2 Customer must only use those Rental Goods for the purpose for which it is manufactured and in accordance with the manufacturer’s instructions and not sell, hire, re-loan, demonstrate to a third party or use in a commercial manner the Rental Goods or otherwise charge, pledge or part with possession of them without the written permission of KS. 25.3 Customer must exercise the utmost care and diligence in relation to the Rental Goods and keep them at the address specified unless KS gives written permission to relocate them elsewhere and not remove any logo, label or other identification for the goods giving notice of KS ownership of the Rental Goods. Customer will pay KS a refurbishing fee if serial numbers, ownership labels, or other notices affixed to rental goods are removed, concealed or defaced. 25.4 Customer must notify KS if the Rental Goods breakdown or require repair and not cause any repairs, adjustments, modifications or other work to be done on the Rental Goods without KS’ consent. KS’ officers may enter Customer’s premises in order to inspect the Rental Goods or carry out repairs. 25.5 Customer shall not return Rental Goods by post and must return goods in the same packaging as delivery was made in. KS reserves the right to charge for packaging materials not returned. Customer will pay the full replacement cost of any item of non-expendable material (including operating manuals) not returned with Rental Goods and must return at its expense Rental Goods clean and in good working order. If they are not returned in this manner KS will recover from Customer the reasonable cost of cleaning, repairing or replacing them. If the Rental Goods are used with hazardous materials, they must be decontaminated at Customer’s expense prior to return. 25.6 Rental Period (“Rental Period”) means the period commencing on the date of delivery of Rental Goods and concluding on the end date as specified. If Rental Goods are returned damaged the Rental Period extends until the date that they are repaired by KS or the replacement cost of goods are paid by Customer. If the Rental Goods are not returned by the expiration of the Rental Period then a further fee will be charged at KS’ discretion and shall continue to accrue on the expiration of the renewed Rental Period until the Rental Goods are returned. 25.7 The Rental Period may only be extended if Customer has obtained KS written consent. The Rental Goods remain the property of KS. The Customer must from time of delivery until return to KS insure the Rental Goods with a reputable insurance company against any loss to the Rental Goods, damage to real and personal property or injury to or death of, any person caused by the use of the Rental Goods by the Customer. 25.8 In the event that Customer seeks to purchase Rental Goods and KS agrees to sell them the property shall not pass until and unless all rental fees and the purchase price have been received Kenelec Scientific P/L GT&C Page 9 of 9 16/November/2015 by KS and the payments shall be applied first in reduction of rental fees and second on account of the purchase price. Rental fees shall continue to accrue until the full purchase price has been paid.