TERMS AND CONDITIONS OF SALE

Jeffress Engineering Pty Ltd ABN 42 009 668 562 (Jeffress)

Introduction

1.              These terms:  These terms apply to each contract for Jeffress to supply Goods to a customer unless Jeffress agrees in writing otherwise and prevail over any terms a customer may issue.  A customer’s failure to acknowledge these terms is not evidence that these terms do not apply. 

2.              Definitions:  In these terms: Consumer Law means the law as set out in Schedule 2 of the Competition and Consumer Act 2010 ; contract means a contract that forms between Jeffress and the customer for the supply of Goods; customer means the other party or parties to a contract; Goods means products supplied by Jeffress under these terms; GST and tax invoice have their meaning in A New Tax System (Goods and Services Tax Act) 1999; order confirmation means a written acceptance of the customer’s order confirming the type of Goods, the price and other delivery terms; working day means a day Jeffress is open to trade; writing or written include an upload of information to Jeffress’ website or an email received at the recipient’s designated email address.

All Sales

The following terms apply to both domestic sales within Australia and export sales:

3. Quotations: Unless otherwise stated, any quotation to supply Goods expires after 30 days.  Jeffress may vary / withdraw its quotation before a contract forms.
4. Contract formation: A contract forms only if and when the customer places an order with Jeffress and Jeffress accepts that order.
5. Orders: The customer may place an order orally or in writing – if Jeffress so requires, an oral order is not effective until confirmed in writing by the customer.  An order is effective even if the customer is yet to specify a delivery date or method.
6. Acceptance of orders: A customer’s order is subject to Jeffress’ acceptance, and Jeffress may decline an order in full or in part.  Jeffress accepts an order (in full or in part) either by providing an order confirmation or by executing the order.  After Jeffress accepts an order, the customer may not modify, delay or cancel the order unless Jeffress agrees in writing. 
7. Price: Unless stated otherwise: (a) prices are set out in a quotation or in an order confirmation; (b) prices are Ex Works (Adelaide, South Australia) and therefore do not include any costs associated with packaging or transport to the customer; (c) prices are exclusive of GST and (c) prices are quoted based on Jeffress’ hourly rates and material costs applying at the time of quotation which are subject to variation by Jeffress for any increase in the cost of labour or cost of materials.
8. GST: Jeffress may recover from the customer any GST for which Jeffress becomes liable by its supply of Goods to the customer.  
9. Tax invoice: On or as soon as practicable after a supply of Goods, Jeffress will issue a tax invoice for that transaction.  The customer waives right to dispute anything on an invoice not notified in writing (giving reasonable details) to Jeffress within 10 working days after the customer’s receipt of that invoice. 
10. Time for payment: The customer must pay for the Goods in accordance with the arrangements outlined in the quotation or order confirmation (or if no quotation or order confirmation is provided, on the date of delivery unless Jeffress has agreed to provide credit, in which case payment must be made by the date specified in an invoice provided by Jeffress).
11. Payments in gross: Unless Jeffress agrees in writing, the customer may not deduct from an invoice amount any set off, counterclaim or rebates asserted by the customer or other sum (including taxes and charges). 
12. Payment method: Unless otherwise outlined in the quotation or order confirmation (or if no quotation or order confirmation is provided, in an accepted order or invoice provided by Jeffress), Jeffress requires payment of invoices by electronic transfer in clear funds to a bank account specified in the quotation or order confirmation or as last nominated by Jeffress in writing.
13. Late payment: If an invoice is not paid within time, Jeffress may: (a) recover from the customer interest at 10% per annum on the unpaid amount calculated on a daily basis from the due date until the date payment is made in full (plus accrued late payment interest) to Jeffress; (b) without liability, cancel or suspend supply of other Goods not fully paid for and yet to be supplied under any contract; and / or (c) exercise any other rights it has in relation to the default. 
14. Credit account: If Jeffress extends credit to the customer, it does so based on written information last provided to Jeffress by or for the customer.  If at any time that information changes materially and adversely, within 2 working days the customer must advise the change in writing (giving reasonable details) to Jeffress.  A credit account is personal to the customer, and not transferable to a third party.  If Jeffress is extending credit to the customer, at any time and without giving reason, Jeffress may reduce, suspend or terminate the credit account by so advising the customer.  Such advice may be oral or written.  A credit account terminates automatically if the customer does not trade with Jeffress for 12 months or becomes insolvent.  Within 5 working days after being advised of a reduction / suspension / termination of the credit account, the customer must pay to Jeffress any amount owing to Jeffress in excess of the current credit limit.
15. Set off: In addition to rights of set off under the general law, Jeffress may set off any debt or liability the customer (alone or with others) owes to Jeffress on any account against any debt or liability Jeffress owes to the customer on any account.  If a liability is unliquidated or otherwise unascertained, Jeffress may set off an amount estimated by Jeffress in good faith on account of such liability, without prejudice to the obligation of the parties to account for any shortfall or excess. 
16. Warranties: Subject to applicable laws, Jeffress does not give any warranty, condition or guarantee in connection with its supply of Goods, other than the warranty set out in the Schedule (which is accepted by the customer).
17. Delivery: (a) The delivery times made known to the customer are estimates only and Jeffress is not liable for late delivery or non-deliv­ery and under no circumstances is Jeffress liable for any loss, damage or delay occasioned to the customer or its cus­tomers arising from the late or non-delivery of the Goods; (b) Jeffress’s delivery and service records are prima facie proof of delivery of the Goods in good order to the customer and of good quality and description stated and are also evidence of receipt by the customer despite the absence of any representative of the customer at the delivery site; (c) the customer must nominate the manner of delivery of Goods and failing nomination must accept delivery by a carrier appointed by Jeffress. All costs of delivery and insurance in transit must be met by the customer upon receipt of the Goods; and (d) it is the customer’s responsibility to provide adequate signs and directions to enable the carrier to effect delivery of the Goods and failure to do so will render the customer liable for any additional cartage charges incurred.
18. Taking Away: If the Customer is to arrange transport of Goods, it must do so within 7 days of being notified the Goods are first ready for transport (or such later date as agreed in writing) – in default, Jeffress may recover from the Customer any additional storage charges for which Jeffress becomes liable after that period.
19. Risk of loss: Risk of loss / damage / deterioration in Goods passes from Jeffress to the customer when the Goods are delivered. The customer must insure the Goods from the time of delivery. Jeffress is not responsible for any loss or damage to the Goods in transit.  Jeffress will provide the customer with rea­sonable assistance necessary to press claims on carriers provided the customer has immediately notified Jeffress and the carriers in writing of discovery of the loss or damage of the Goods and lodges a claim on the carrier within 3 working days of the receipt of the Goods.
20. Ownership: Ownership of Goods passes from Jeffress to the customer only when those particular Goods are paid for in full. Jeffress has a purchase money security interest under the Personal Property Securities Act 2009 (PPSA) for Goods supplied to the customer but not yet paid for.
21. Returns: The customer may not return any Goods (not defective for reasons that are Jeffress’ responsibility) except with Jeffress’ prior written consent and at the customer’s cost.  In that case, Jeffress would credit a return only where Goods are received back in the same condition and packaging as in the original shipment. Any credit given will be at Jeffress’ discretion after deduction of any cartage costs borne or handling fee charged by Jeffress.
22. Defective Goods: Subject to applicable laws, a claim that any Goods are defective for reasons that are Jeffress’ responsibility is not valid unless advised in writing (with reasonable details) to Jeffress within 30 days after the defect was first known to the customer. If a claim for a defective Goods are found or admitted to be without merit, the customer is to pay all reasonable costs Jeffress incurs investigating the claim.
23. Out-of-time claims: A claim for defective Goods not within time is barred for all purposes.
24. Jeffress’ liability: Subject to applicable laws, if the Goods are defective for reasons that are Jeffress’ responsibility, Jeffress’ total liability for any claim is limited to (at Jeffress’ option): (a) in the case of goods; the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods or the payment of having the goods repaired; and (b) in the case of services; the supply of the services again or the payment of the cost of having the services supplied again. In no case is Jeffress liable for any loss of revenue / profits / goodwill or any incidental, consequential or punitive damages as a result of any claim in connection with its supply of Goods.
25. Jeffress’ rights: In addition to Jeffress’ other rights, Jeffress may suspend or cancel a contract and retake possession of Goods not paid for if Jeffress reasonably believes the customer to be insolvent or to have ceased to trade, or if the customer is in default under any contract with Jeffress or a related entity of Jeffress.
26. Costs: The customer is liable to pay all reasonable costs or expenses Jeffress incurs in recovering or attempting recovery of moneys owing by the customer or in otherwise enforcing Jeffress’ rights under a contract.  Such costs may include legal costs on a solicitor / client basis.
27. PPSA: If at any time the customer grants in favour of Jeffress a security interest over any collateral (all within the meaning of the PPSA): (a) at any time, without prior notice to the customer but at the customer’s cost, Jeffress may register in relation to such security interest/s one or more financing statements / financing change statements on the register maintained under the PPSA; (b) to any extent Jeffress at any time requests, within 2 working days the customer must do all things necessary to assist such registration/s and / or ensure the security interest/s priority over any other security interest (present or future) over the same collateral granted by the customer to a third party; and (c) the customer waives its right to receive a copy of any financing statement or financing change statement and irrevocably contracts out of those provisions of the PPSA that the PPSA allows to be contracted out of by the customer.
28. Force majeure: A party is not liable for a failure to perform a contract to the extent its performance is prevented by a circumstance not within that party’s reasonable control.
29. Dispute resolution: Except as this clause allows, any dispute in connection with a supply of Goods must not be the subject of litigation or arbitration pending the party raising the dispute notifying the other party as to the nature of the dispute (with reasonable details), what action the party giving notice thinks will resolve the dispute, and inviting the other party to a meeting of the parties’ respective agents at some convenient location with a view to resolving the dispute.  At such meeting each party must send to the meeting an agent with authority to resolve the dispute, and at the meeting make a good faith attempt to resolve the dispute.  This term does not prejudice the right of a party to seek a Court order to prevent immediate and irreparable harm, or to suspend or terminate a supply of Goods where the basis for doing so is not in dispute.
30. About the customer: These terms do not apply to a sale of Goods to a person who in that sale is a consumer (as defined in the Consumer Law).  If in a contract the customer is more than 1 person, that contract binds each of them jointly and severally, and each of them is taken to have authority to bind the other/s in connection with the contract, including that a notice to / from any such person is notice to / from all of them.
31. About the contract: These terms and the relevant order together are the whole contract between the parties about Jeffress’ supply of the Goods to the customer.  That contract can be amended only by written agreement of the parties.  To be valid, a waiver under that contract must be in writing signed by the party granting the waiver.  Time is of the essence of any date or period under that contract.   A contract may only be modified or cancelled as the parties agree in writing.
32. Governing law: The laws of South Australia and, where applicable the Commonwealth of Australia, govern the contract and the customer submits to the non-exclusive jurisdiction of the courts of South Australia. Jeffress shall have exclusive right to nominate the Court in which any legal action is to be commenced and conducted.
33. Notices:

33.1            The customer hereby consents to receiving any notice(s) required under these terms by email.

33.2            Notices given by Jeffress will be deemed to be received: (a) if given by email, on being sent, provided the notice is sent to the email address of an officer or employee of the customer responsible for placing or administering orders for the Goods and no “out of office” or other automated reply is received indicating that the message has not been or will not be received or read by the intended recipient; (b) if given by facsimile transmission to a facsimile number shown in the application for credit (or any other number provided by the customer) by production by Jeffress of a copy of the facsimile transmission bearing the time and date of dispatch, on that date and at that time; and (c) if given by post, on the 5th working day after posting.

33.3            The customer agrees to regularly check the Jeffress’ website for any notices of changes to these terms.

Export Sales

The following apply to export sales only and prevail to the extent of any inconsistency over the terms above:

34. Orders: Unless stated otherwise, an order is firm even if the customer is yet to specify shipping details.
35. Sale:

35.1            The sale of the Goods is to be on an “Ex Works basis” (EXW); or

35.2            In accordance with any other Incoterm specified in the order confirmation or as otherwise agreed in writing by Jeffress.

36. Price: Prices are to be paid in the currency specified by Jeffress. Prices include the cost of Jeffress’ responsibilities under the relevant Incoterm. If, at the customer’s express request, Jeffress performs an obligation that is the customer’s responsibility under the relevant Incoterm that Jeffress has not agreed to be liable for under these terms or in writing, Jeffress may recover its reasonable costs from the customer.
37. Delivery: Jeffress does not guarantee that an order would be ready for delivery to the delivery point on any date. Jeffress must however, give the customer as much advance notice as reasonably practicable when an order is expected to be ready for delivery, and keep the customer informed of any changes to that information.  
38. Packaging: Jeffress must package the Goods to usual Australian export standards.
39. Brand: Jeffress does not give any assurance its label or brand does not infringe any third-party rights in any country outside Australia.
40. Incoterms: The version of INCOTERMS that was most up to date at the time of formation of the contract shall apply to the interpretation of these terms. These terms shall apply to the extent of any inconsistency.
41. Other: The United Nations Convention on Contracts for the International Sale of Goods adopted at Vienna, Austria on 10 April 1980 is excluded.

SCHEDULE 

WARRANTY 

JEFFRESS ENGINEERING PTY LTD

ABN 42 009 668 562 

1. Jeffress warrants that:
   a.   all new Goods manufactured by Jeffress are free of defects in material and workmanship for a period of 1 year from the date of sale; and
   b.   all Goods re-manufactured or repaired by Jeffress are free of defects in new material and workmanship for a period of 90 days from the date of sale.
2. In relation to any Goods or part of Goods that do not comply with this Warranty Jeffress will at its option repair or replace the Goods.
3. Any claim under this Warranty must be made within the relevant Warranty period and must be notified in writing to Jeffress within 30 days after discovery of the defect giving rise to the claim.
4. No claim will be met until Jeffress or its duly authorised representative has inspected the Goods the subject of the claim which must be returned freight paid to Jeffress or its representative at the discretion of Jeffress.
5. This Warranty does not apply to any defects in the Goods arising directly or indirectly from fair wear and tear or any defect in the Goods which may be caused directly or indirectly by use or maintenance of the Goods in a manner other than in accordance with the instructions supplied by Jeffress.
6. Jeffress’s liability under this Warranty is limited to the lesser of:
   a.   providing ex works Adelaide, South Australia a replacement for the relevant Goods;
   b.   the cost of obtaining an equivalent product which performs the same function as the relevant Goods; or
   c.   the cost of having the Goods repaired.
7. In no event will Jeffress be liable under this Agreement for any defect in any Goods due to improper storage or use by the customer or any third party receiving the Goods directly or indirectly from Jeffress or exposure of the Goods to an improper or unsuitable environment.
8. Except as set out in this Warranty Jeffress does not make and hereby excludes any warranties or representations oral or written whether in relation to Goods or services provided by Jeffress except for warranties which cannot lawfully be excluded.
9. In no case is Jeffress liable for any loss of revenue / profits / goodwill or any incidental, consequential or punitive damages as a result of any claim in connection with its supply of Goods or services.
10. The benefits given to the customer by this Warranty are in addition to all other rights and remedies under the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) or other Australian Commonwealth or State law that the customer has in respect of the Goods.