Customer shall place an Order by submitting it on Customers standard purchase order form or an alternate order form approved by QTECH or otherwise by electronic means acceptable to QTECH. Customer’s Order is deemed to incorporate the terms and conditions of this Agreement without reference in the Order to this Agreement. All Orders are subject to acceptance by QTECH. Once accepted Customers purchase order shall become an Order. QTECH reserves the right to allocate the sale of Products among its customers. Orders for special, custom, value-added and Products specifically identified by QTECH as non-standard are non-cancelable and non-returnable (“NCNR”). Orders for standard Products may not be cancelled, amended or rescheduled without QTECH’s written consent on such terms as QTECH may determine including but not limited to a 25% (twenty five percent) re-stocking fee.
Q-Tech Australia Terms & Conditions
STANDARD TERMS & CONDITIONS
The sale of products and services (collectively ``products``) by QTECH PTY LTD ABN 76 117 069 833 of unit 2 / 11 Tarlington Place - Smithfield 2164, and its divisions including but not limited to AQUATICO WTS and WSA - WATER SAMPLING AUSTRALIA (collectively “QTECH”) are subject to these terms and conditions (“agreement”) regardless of other or additional terms or conditions that conflict or contradict this agreement in any purchase order, document, or other communication (``order``). Pre-printed terms and conditions on any customer document (for example: purchase orders, confirmations etc.) And/or QTECH's failure to object to conflicting or additional terms will not change or add to the terms of this agreement.
QTECH’s quoted prices apply for 30 days or as otherwise stated in its quote. Prices may increase in the event of an increase in QTECH’s costs or other circumstances beyond QTECH’s reasonable control. Prices are for Products only and do not include GST, other taxes, impositions and any other charges, fees, shipping or delivery charges and duties imposed by any government authority. Any additional fees, charges and taxes are the responsibility of Customer. When secondary component hardware and software are included in the quotation and not expressly named, QTECH reserves the right to supply from the source considered most suitable in its sole discretion. If, after the quotation, specific components hardware and software of a nominated make are requested by the Customer, QTECH will issue a revised quotation. In these circumstances delivery dates and prices may be effected.
3. TERMS OF PAYMENT
Payment of the total invoice amount, without offset or deduction, is due 30 days from the end of the month of the invoice date (subject to credit approval), unless otherwise stated in the quote or the invoice. Cheques are accepted subject to collection and the date of collection is deemed to be the date of payment. On any past due invoice, QTECH may charge interest from the payment due date to the date of payment (at the annual percentage rate charged by QTECH’s principal Australian bankers for overdraft facilities plus 2% per month), plus reasonable attorney fees and collection costs. Payments may be applied to any of Customer’s accounts by QTECH in its discretion. Customer agrees that QTECH may in its sole discretion and at any time, change the terms of Customers credit, require bank guarantees or require cash payment before shipment of any Products or before the beginning of any work and/or require prepayment. QTECH reserves the right to request progress payments for Products when components and/or services are required ahead of scheduled delivery dates and Customer agrees to make such payments on demand.
4. DELIVERY AND TITLE
Unless otherwise agreed in writing by QTECH, all Products will be delivered to the address specified in the Quote unless otherwise agreed in writing by QTECH. The Customer must ensure that it or its employees or agents are in attendance at the said delivery address at the time or for the period notified by QTECH in order to take delivery of the Products and to acknowledge receipt upon the consignment note, invoice or service report accompanying the Products. All shipping costs are at Customer’s expense. Risk of loss or damage to the Product shall pass to the Customer upon delivery of the Products to the carrier and Customer will insure the Product form that point. QTECH’s delivery dates are estimates only and QTECH is not liable for delays in delivery. QTECH reserves the right to make partial shipments and Customer agrees to accept delivery and pay for the Products delivered. A delayed delivery of any part of an Order does not entitle Customer to cancel other installments. Ownership of the Product (excluding software) will not pass from QTECH to Customer until Customer has paid for the Product in full. Title to software is not transferred at any time. Until ownership passes to the Customer:
- The Customer will hold the Product as fiduciary and bailee for QTECH;
- The Product must be stored separately and in a manner to enable it to be identified and cross referenced to a particular invoices;
- QTECH, its employees or agents, are entitled to enter the Customer’s premises between 9:00am and 5:00pm on any business day to inspect the Product;
- Unless otherwise notified in writing by QTECH and subject to clause 4.2 Customer is authorised to sell the Product in the ordinary course of Customer’s business;
and the proceeds of Products sold by Customer are to be held in trust for QTECH;
4.2. If payment is not made by the Customer to QTECH on the due date, the Customer must deliver the Product to QTECH on demand. If the Customer does not comply with such demand, QTECH, its employees or agents are entitled:
- (i) To enter the premises at any time to do all things necessary in order to take possession of the Product, and the Customer:
A. must procure the consent of all persons having an interest in the premises where the Product is situated to entry into the premises by QTECH, its employees or agents; and
B. indemnifies QTECH against any claim, loss, liability, cost and expense that may be incurred or sustained by QTECH, its employees or agents as a result of entry into those premises where the Products are situated; and
- (ii) With or without taking possession of the Product sell it as QTECH sees fit; and
- (iii) The Customer must pay to QTECH the costs and expenses incurred by QTECH of any legal advisers, mercantile agents and other agents acting on QTECH’s behalf in respect of the enforcement of these terms and conditions, or recovery or attempted recovery of either the money owing by the Customer to QTECH or possession of the Product.
4.3 Until ownership passes to the Customer, the Product is not to be affixed to any of its premises and the Customer must ensure that the Product may be removed from those premises without causing damage of any kind to the premises.
4.4 The Customer’s right to hold and sell the Product will immediately cease if an administrator or a controller within the meaning of section 9 of the Corporations Act or similar officer is appointed to all or any assets or undertaking of the Customer or an order is made or resolution passed for the winding up of the Customer or the Customer is deregistered. In any such case, and without the need for notice or demand by QTECH, the Customer acknowledges any subsequent sale or purported sale of the Product will not be in the ordinary course of the Customer’s business and the proceeds of any Product sold in such circumstances will be held on trust for QTECH by the administrator, controller, liquidator or similar officer as the case may be, or if there is no such officer by Customer.
4.5 Product invoiced to the Customer and held by QTECH for any reason shall be held at the Customer’s risk and expense.
4.6 This section 4 is not intended to create a charge and shall be read down to the extent necessary to avoid creating a charge.
It is the Customer’s responsibility to provide adequate access for entry and installation of Products and/or services covered by the Quote, together with adequate access and rigging facilities for future service work. The Customer will grant QTECH entry to the premises and access to any applicable equipment at any time when required for the performance of the services and allow QTECH to make use of all existing building services and maintenance facilities at the premises in the performance of the work, and to remove any item of the equipment from the premises (if in QTECH’s opinion this is necessary) for the purpose of undertaking any repair, replacement and or installations; the Customer will only permit persons appropriately qualified to undertake work of the relevant nature on relevant Product other than in connection with its normal operation. The Customer warrants to QTECH that the Customer is the beneficial owner of the premises or has obtained from the beneficial owner consent for QTECH to carry out such work and will indemnify and hold harmless QTECH in respect of any claim made against QTECH based on, or in any way arising from, a lack of such consent. Unless otherwise agreed in writing it is the Customer’s responsibility to obtain and provide access to services and facilities.
If QTECH is not responsible for installation of components, hardware and software, the Customer is responsible for the installation of Products and all supporting services operative prior to requesting start-up in accordance with the QTECH checklist (if included in the Quote).
If upon arrival on site, QTECH finds that the Products are not ready for commissioning, any extra costs incurred, including but not limited to costs of traveling and accommodation, overtime, penalty rates and site allowances will be charged to the Customer’s account.
7. ACCEPTANCE OF PRODUCTS AND PRODUCT RETURNS
Customer must notify QTECH in writing of any damage, shortage, or other discrepancy to Products within 10 days after delivery. After the 10th day Customer is deemed to have accepted the Products and may not revoke acceptance. Products cannot be returned without a return material authorization (“RMA”) number. Returned Products must be in original manufacturer’s shipping cartons or equivalent. All Products must be returned, freight prepaid. Products not eligible for return will be returned to Customer freight collect, or at QTECH’s option, held for Customer’s account at Customer’s expense.
8. QTECH'S LIMITED WARRANTY
QTECH will transfer to Customer any Product warranties and indemnities authorised by the manufacturer, including any transferable warranties. QTECH warrants the Products will conform to the manufacturer’s specifications. Value-added work or services performed by QTECH on Products will conform to the specifications set out by QTECH in its quote, its service report or as advised by the manufacturer, subject to the Customer strictly adhering to the manufacturers maintenance requirements. QTECH makes no other warranty, express or implied. QTECH makes no warranty of merchantability, fitness for purpose or non-infringement. If Products (a) do not meet the manufacturer’s specifications or (b) if value-added work by QTECH does not meet the specifications set out in QTECH’s quote or service report for a period of 12 (twelve) months from the date of supply of the service or (c) if a statute implies any condition or warranty which cannot be excluded then the Products will be, at QTECH’s choice, (1) repaired or (2) replaced at no cost to Customer; or (3) QTECH may refund Customer’s purchase price of the Product; or if relating to services (a) to perform the services again or (b) pay for the services to be performed again. Products must be returned to QTECH, along with acceptable proof of purchase, within 30 days from date of delivery, freight charges prepaid. Information provided by QTECH concerning noise and vibration is given in an advisory capacity and is not part of the QTECH warranty. QTECH does not accept any liability for noise and/or vibration unless otherwise agreed in writing by QTECH.
9. LIMITATION OF LIABILITY
QTECH is not liable for and Customer is not entitled to any indirect, special, incidental or consequential damages; for example, loss of profits or revenue, loss of data, loss of use, rework, manufacturing expense, injury to reputation, or loss of customers. Customer’s recovery from QTECH for any direct damages will not exceed the price of the Product at issue. Customer will indemnify, defend and hold QTECH harmless from any claims based on; (i) QTECH’s compliance with customer’s written designs, specifications, or instructions, (ii) modification of any Products by anyone other than QTECH, or (iii) use of the Product in combination with other products. If the Products are manufactured to the design or specification of the Customer (“Customer Specification”), the Customer warrants that the design, specification and Products do not infringe any intellectual property right of a third party (such as patent, copyright, trademark or registered design) or other like protection of any other person and comply with any applicable statute, statutory instrument or regulation. The Customer indemnifies for all costs expenses loses and damages which QTECH may suffer as a result of any claim that the Customer Specifications infringe the intellectual property rights of any third party.
10. FORCES BEYOND QTECH'S CONTROL
QTECH is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond its reasonable control, (for example: acts of God, acts or omissions of the Customer, man-made or natural disasters, materials shortages, strikes, delays in transportation, or inability to obtain labor or materials through its regular sources).
(a) This Agreement will be interpreted in accordance with the laws of New South Wales (“NSW”) Australia The United Nations Convention for the International Sale of Goods shall not apply and the parties submit to the exclusive jurisdiction of the courts of NSW Australia.
(b)Customer may not assign this Agreement without the prior written consent of QTECH. QTECH may assign this Agreement without the consent of the Customer. QTECH reserves the right in full to subcontract any and all of its obligations under this Agreement including the production, manufacture or supply of the whole or any part of the Products without seeking the consent of the Customer. This Agreement is binding on successors and assigns.
(c) This Agreement can only be modified in writing signed by authorized representatives of both QTECH and Customer.
(d) QTECH and Customer are independent contractors and agree that this Agreement does not establish a joint venture or partnership.
(e) Statements or advice (technical or otherwise) if given without charge, are an accommodation to Customer and QTECH has no responsibility or liability for the content or use of such statements or advice.
(f) QTECH’s failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these terms and conditions.
(g) The unenforceability of any of these terms or conditions will not affect the remainder of the terms or conditions.
(h) Products, including software or other intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights and/or user licenses. If an Order includes software or other intellectual property, such software or other intellectual property is provided by QTECH to Customer subject to all legal restrictions, including any user license, the terms of which are set forth in the license agreement accompanying such software. Nothing herein shall be construed to grant any rights or license to use any Product, software or other intellectual property in any manner or for any purpose not expressly permitted in writing. Unless otherwise provided herein, QTECH is not the licensor and Customer acquires the license directly from the manufacturer or the manufacturer’s authorised licensor. No rights or license is granted to the Customer in relation to the Product other than the right to install and operate the Products. Documents provided by QTECH such as but not limited to drawings, plans and specifications remain the property of QTECH. The Customer must treat the information contained in those documents as strictly confidential. The Customer must use the information contained in those documents only to install or operate the Products. The Customer must not use this information in any other way to the advantage of the Customer or the detriment of QTECH.
(i) Customer and QTECH agree to comply with applicable laws and regulations. The Customer must:
- (a) acquaint itself with requirements of all relevant Government and statutory or other authority (including, but not limited to, a manufacturer’s technical, copyright and operational requirements) in relation to the Products and to the application(s) to which the Products are put, (b) comply with such requirements at all times while the Products are in its possession or under its control and (c) procure that any purchaser of the Products from the Customer acquaints itself with and complies with such requirements, if applicable; and (d) comply with any lawful instructions by QTECH relating to the Products; and (b) indemnify QTECH in respect of any loss or damages suffered or incurred by QTECH as a result of Customers failure to comply with the provisions of this clause.
(j) Any notice required or permitted to be sent to either party or shall be deemed to have been given when in writing and delivered personally, faxed with a confirmation document, delivered by overnight courier or mailed postage prepaid by registered or certified mail, return receipt requested, to the registered corporate address of such party or such other address which the parties may designate in writing.