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Terms & Conditions
NOTE: Except as otherwise provided in a written agreement signed by Automation Sales (a division of MPA Engineering Pty Ltd), these Term and Conditions of Use represent the entire understanding between you and Automation Sales and our related companies (collectively, "Automation Sales") regarding your use of www.automationsales.com.au (the "Site") and your submission of any material to us.
Should you have a pre-existing agreement with Automation Sales (a division of MPA Engineering Pty Ltd) on Terms and Conditions of Sale ("Agreement"), then that Agreement will apply to any order placed by you on this Site. In addition to that Agreement, you expressly agree to be bound by these Terms and Conditions of Use. If there is no pre-existing agreement between you and Automation Sales for the supply of products you expressly agree to be bound by these Terms and Conditions of Use, and by any other additional terms and conditions that are incorporated by reference into these Terms and Conditions of Use.
1. DEFINITIONS AND INTERPRETATION
1.1. In these Terms and Conditions, unless the context otherwise necessarily requires:
'Buyer ' means any person, firm or corporation including his successors, administrators and assigns, who, or which has requested the supply of goods by Automation Sales; 'contract' means the agreement for the supply of goods by Automation Sales to the Buyer signed between the parties or created in accordance with these Terms and Conditions of Use; 'goods' means any goods available for sale to the Buyer by Automation Sales including goods required for the performance of services; 'GST' has the same meaning as in the GST Act; 'GST Act' means A New Tax System (Goods and Services Tax) Act 1999 as amended; 'job site' means a place for delivery of goods other than Automation Sales' premises; 'MPA' means MPA Engineering Pty Ltd ACN 011 069 533 and its assigns - Automation Sales is a division of MPA; 'Automation Sales' premises' means the place from which the goods are made available for collection by the Buyer; 'price' means the quoted price or Automation Sales' ruling price at the time of placement of an order for the supply of goods, and may be a lump sum amount or an amount to be calculated by reference to labour rates and other sums; 'taxable supply' has the same meaning as in the GST Act; 'Terms and Conditions of Use' means these terms and conditions; 'variation of contract' means any variation whatsoever to an order for supply of goods including amendments to loading requirements, delivery times and delivery sites. 1.2. Words importing the singular include the plural and vice versa unless the context otherwise requires. 1.3. A reference to any gender includes all genders unless the context otherwise requires. 1.4. Clause headings are for convenience of reference only and shall not affect the construction of the Terms and Conditions. 1.5. The Terms and Conditions, together with the description of the goods, the Buyer's name and address, any price or payment terms and any other information or terms and conditions specifically stated in the quotation constitute the entire agreement between Automation Sales and the Buyer. 1.6. No course of prior dealings between the parties and no usage of trade are to be relevant to supplement or explain any term used herein. 1.7. Unless the express terms of the quotation provide otherwise, a quotation is valid for 30 days and shall be deemed to include these Terms and Conditions but shall constitute only an invitation to order the goods described in the quotation and shall not be an offer, and all prices, forms and conditions included in the quotation are subject to revision by Automation Sales.
2.1. Subject to clause 2.2, a contract will be deemed to have been created upon receipt by Automation Sales of an oral or written order from the Buyer for the supply of goods and acceptance of that order by Automation Sales either by: (a) written notice of acceptance; or (b) delivery of goods to the Buyer by Automation Sales. 2.2. Automation Sales may, in its absolute discretion, refuse to supply goods. 2.3. The Buyer cannot cancel a contract for the supply of goods unless agreed to in writing by Automation Sales.
3. PRICE AND PAYMENT
3.1. All goods are sold at the price. 3.2. If the goods supplied by Automation Sales to the Buyer under this contract is a taxable supply then: (a) in addition to the price payable by the Buyer to Automation Sales under this contract, Automation Sales shall be entitled to recover from the Buyer an additional amount on account of GST, such amount to be equal to the amount of Automation Sales' GST liability and shall be recoverable on the date when payment of the price falls due under this contract; (b) Automation Sales may in its absolute discretion review the Buyer's obligation under paragraph (a) of this clause and reduce the amount payable by the Purchaser to Automation Sales under that paragraph. Any adjustment shall be notified in writing by Automation Sales to the Purchaser on or before the date that payment of the price falls due failing which no such adjustment will be allowed. 3.3. The price is subject to adjustment by Automation Sales for increases in the cost of materials or labour occurring after the date of the contract, freight and cartage, foreign exchange fluctuations, changes in duties or taxes, the imposition of a tax, surcharge or levy, stamp duty, storage charges, demurrage costs, delivery costs, legal costs (solicitor and own client costs) and disbursements if incurred by Automation Sales in relation to breach of contract by the Buyer, costs or charges incurred by Automation Sales with respect to the recovery from or return of goods by the Buyer, or any other costs not included in the price and occurring for reasons beyond the reasonable control of Automation Sales. 3.4. Except as otherwise agreed in writing to account holders, the Buyer shall pay the price to Automation Sales for goods and services at the time of ordering. 3.5. All invoiced amounts must be paid by the Buyer in full and without deduction of any kind.
4. CHANGES TO ORDER
4.1. Where any variation in relation to the goods is requested by the Buyer, the Buyer shall pay to Automation Sales any costs and expenses incurred by Automation Sales relating to the variation. Automation Sales shall not be responsible for delays in delivery due to such variation.
5. INSPECTION AND RETURNS
5.1. The Buyer shall inspect goods immediately upon delivery. 5.2. No claim for shortages or damaged or defective goods may be made against Automation Sales unless written notice of such claim is received by Automation Sales within 7 days after delivery. 5.3. If the Buyer fails to advise Automation Sales of any faults or any failure of the goods to accord with the contract within 7 days after delivery of the goods or completion of the relevant work, the goods shall be deemed to conform to the contract. 5.4. Goods will be accepted for credit only by prior agreement or to the extent that they have been wrongly or over supplied. Returned goods shall be delivered to Automation Sales free of charge, in good order and condition, unused and in the original packaging, accompanied by a despatch note stating the original invoice number, date of supply and reason for return. Except where goods have been wrongly or over supplied, a charge as determined by Automation Sales will be made for handling costs. 5.5. Goods made to special order cannot be returned or credited unless not to specifications or otherwise not in accordance with any expressed or implied term of the contract.
6. RISK AND PROPERTY IN GOODS
6.1. Risk of loss or damage to the goods shall pass to the Buyer immediately upon delivery. It shall be the Buyer's responsibility to arrange appropriate insurance at its cost. 6.2. Notwithstanding the passing of risk, title in the goods delivered shall not pass to the Buyer until all amounts payable by the Buyer to Automation Sales have been paid. 6.3. Where goods are delivered by Automation Sales to the Buyer without payment of the price in full, the Buyer shall: (a) hold the goods on trust for Automation Sales until all amounts owed by the Buyer to Automation Sales have been paid in full; (b) be deemed to have irrevocably appointed Automation Sales its attorney to do all acts and things necessary to ensure the retention of title of the goods including the registration of a charge or charges in favour of Automation Sales with respect to the goods; and (c) keep such goods separate from other goods of the Buyer. 6.4. Notwithstanding the above, where the goods become part of other goods or are incorporated in any object, the goods shall be deemed to remain separate and subject to the rights of Automation Sales until payment of all sums owing to Automation Sales. 6.5. Where goods supplied by Automation Sales to the Buyer are replacement goods, property in the goods which have been replaced will pass to Automation Sales upon replacement.
7.1. All express or implied terms, conditions, warranties, statements, assurances and representations in relation to any goods supplied by Automation Sales are hereby expressly negatived save for: (a) the express provisions of these Terms and Conditions; (b) those conditions and warranties which must be implied under the law of any State of Australia or the provisions of Division 2 of Part V of the Trade Practices Act 1974 and any statutory modification or re-enactment thereof. 7.2. If the Buyer claims that there has been a breach of any conditions or warranties of Automation Sales under these Terms and Conditions, Automation Sales' liability shall be limited to: (a) with respect to the supply of goods, any one or more of the following as determined by Automation Sales: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired; 7.3. Automation Sales shall not in any circumstances be liable for any special, exemplary, punitive or consequential damages (including but not limited to economic loss or loss of profit or revenue or loss of opportunity) for any breach of any warranty or other breach of this contract. 7.4. The Buyer declares that the Buyer has read these Terms and Conditions prior to establishment of this contract and except as expressly stated in the contract no warranty, assurance, promise or representation has been made by or on behalf of Automation Sales regarding the quality, fitness for use, suitability or merchantability of goods or regarding any other matter or thing whatsoever. The Buyer agrees that it has relied entirely on the Buyer's own knowledge, skill and judgment in entering into this contract. 7.5. The Buyer agrees that any advice provided by Automation Sales in relation to the use or installation of the goods is given in good faith, and that Automation Sales assumes no obligation or liability for such advice and such advice is accepted by the Buyer at the Buyer's risk. 7.6. No contract with the Buyer shall be a sale by sample unless expressly stated in this contract.
8.1. The Buyer will hold Automation Sales harmless and keep Automation Sales indemnified from any loss, damage or expense suffered or incurred, or any claims, suits, proceedings or judgment made on or obtained against Automation Sales of whatsoever nature relating directly or indirectly to the use of the goods by the Buyer.
9. LIMITATION OF LIABILITY
9.1. The Buyer acknowledges that the price is predicated on the enforceability of the following limitation of liability, that the price would be substantially higher if Automation Sales could not so limit its liability, and that the Buyer accepts this limitation of liability in exchange for such price. 9.2. As a separate and independent covenant, and except as expressly provide in this contract to the contrary, the Buyer acknowledges and confirms that Automation Sales shall have no liability to the Buyer with respect to the sale or use of the goods for lost profits or for special, consequential, exemplary or incidental damages of any kind whether arising in contract, tort, product liability or otherwise, even if advised of the possibility of such lost profits or damages, and in no event shall Automation Sales be liable to the Buyer for any damages whatsoever in excess of the price of goods sold and services provided under this contract. 9.3. The parties agree that all limitations of liability provided for in this contract for the benefit of Automation Sales shall be and remain in full force and effect notwithstanding that the warranty provisions of this contract may fail or be of no effect for any reason.
10.1. In the event that: (a) the Buyer breaches or is alleged to have breached any contract by reason of failure to pay any amount owing to Automation Sales or any other act or omission; (b) the Buyer becomes or threatens to become or is in jeopardy of becoming subject to any insolvency administration; or (c) the Buyer ceases or threatens to cease conduct of its business in the normal manner; Automation Sales may without prejudice to any other of its rights; (d) save where payment in full has been received by Automation Sales, refuse delivery of goods; (e) repossess any goods delivered to the Buyer, the payment for which has not been received; or (f) retain (where applicable) all monies paid on account of goods or services.
11.1. The Terms and Conditions are essential terms of Automation Sales' agreement to supply goods and shall be deemed to apply to the supply of all goods to the exclusion of any other or contrary terms and conditions of the Buyer's purchase order, request for tender or correspondence. 11.2. These Terms and Conditions are to be governed by and construed in accordance with the laws of the State in which this contract is made but in the event of doubt shall be governed by and construed in accordance with the laws of the State of Queensland. 11.3. Any Term or Condition being a whole clause or part of a clause which is invalid, unlawful, void or unenforceable and capable of severance without affecting any other term or condition in these Terms and Conditions, shall be severed. 11.4. Any variation of contract must be in writing and signed by Automation Sales. 11.5. Any notice, invoice or document for the Buyer shall be deemed to be sufficiently served if posted by ordinary pre-paid post addressed to the Buyer at the Buyer's last known address and shall be deemed to have been received by the Buyer on the second business day following the date on which it was posted. Alternatively if served by facsimile transmission and transmitted by facsimile during normal business hours on a business day such notice, invoice or document shall be deemed to have been given on the business day which next follows the day of transmission.