Terms & Conditions of Sale
1. Application of Terms and Conditions
Orders are only accepted subject to the terms conditions of sale as detailed herein. Any variation ofthese conditions in any document of the buyer is inapplicable unless accepted in writing by Convair.
Unless an account has been authorised, payment terms are C.O.D. If an account has been authorised, payment terms are strictly 30 days from the end of the month following the invoice date except for tankers where a 20% deposit with order applies with balance due on delivery. Convair reserves the right to make specification and price changes on standard products, without prior notice. Please consult Convair for current product and price information. All Convair Invoices will clearly state our banking details for EFT payments. Surcharge on all payments made with Visa & Mastercard. Surcharge will be not greater than our cost of acceptance. AMEX not accepted.
All prices quoted are ex works and are subject to change without notice. Shipping charges will be added to the invoice. Convair is not responsible for loss or damage once any product has left its premises. All prices quoted are exclusive of 10% GST.
4.Damage, Loss in Transit
Convair Engineering Pty Ltd. does not accept any responsibility for shortages or for goods lost or damaged in transit, unless such shortages, or loss or damage on the delivery note is specified as examined, or, if the goods have been signed for as not examined, such shortages, loss or damage are notified within 48 hours and reported by separate notice in writing to the carriers and Convair within 5 days of receipt of the goods by the buyer or the consignee.
a) Delivery commitments are entered into in good faith but are not guaranteed, and Convair shall not be liable for any loss or damage occasioned by failure to deliver on the specified date howsoever caused. Nor shall failure be deemed to be breach of the Order, or any of its conditions, or part thereof.
b) Refusal of the buyer to accept part of whole delivery at the time specified in the Order shall permit Convair to treat the Order as repudiated by the buyerand to decline to make further deliveries without prejudice to Convair's right to recover damages for breach of Order.
c) Where Orders provide for a single delivery, goods shall be delivered and accepted as soon as ready.
d) Where Orders provide for deferred delivery, such delivery shall be accepted as specified in the Order, (or as soon thereafter as ready).
Convair will endeavour to give delivery within the time specified in the quotation. Convair shall not be liable for any loss or damage which may be sustained by the buyer through failure on the part of Convair to deliver within the time specified in this Order, for any loss or damage incurred by reason of act of God, war,riots, fires, strikes, lockouts, cessation of labour, trade disputes,break-downs, accidents of any kind or any other cause whatsoever beyond the control of Convair whether similar to these aforesaid or not. Convair shall been titled to recover all monies owing to them in respect of deliveries made or services performed prior to such failure. The time of any such suspension will be added to the time of original Order.
7.Cancellation of Orders
Cancellation of an order, in whole or part, cannot be accepted without Convair’s written consent.
a) Goods manufactured by Convair are warranted against defects in workmanship andmaterials for a period of one (1) year from the date of delivery.
b) Convair’s sole responsibility under this warranty shall be to either repair or replace, at its' option, any product which fails during the warranty period.
c) This warranty does not cover travel expenses, road service, towing, loss of revenue, customer or overtime labour, downtime, drivers’ expenses or cost ofrental equipment.
d) Warranty repairs do not constitute an extension of the original warranty period for the piece of equipment as a whole or for any specific component.
e) goods supplied by Convair but manufactured by others are not warranted by Convair but are supported by the warranty of the original manufacturer. These include compressors, blowers, suspensions, axles, wheels, tyres, valves, etc.
f) No Conditions of Warranty is expressed or to be implied as to the life ofthe goods supplied.
g) Any express or implied statement, condition or warranty, statutory orotherwise, not stated herein is hereby excluded and deemed to be inconsistentherewith. No responsibility is accepted by Convair for any damage or lossarising directly or indirectly out of goods supplied or for any damage or loss arising by reason of any failure of the goods to comply with the specifications. Furthermore Convair shall be under no liability for any damage or injury arising directly or indirectly out of the supply from us of the goods.
a) The Ownership ofthe goods ordered herein will only be transferred to the buyer on payment bythe buyer.
b) Should the buyer remain in default of any payment for which the buyer isliable to Convair, Convair reserves the right to decline to make any further deliveries.
c) The buyer shall store all goods delivered by Convair but for which paymenthas not been made, in such a way as to be clearly separate and identifiablefrom the buyer's other goods and products and the buyer hereby grants to Convair, its servants or agents the right to enter on to the buyer's premisesfor the purposes of recovering such goods at any time until payment.
d) Notwithstanding the above, if the buyer shall sell any goods delivered in such a manner as to pass to a third party a valid title to the goods, the buyer shall hold the proceeds of such sale on trust for Convair; providing that nothing herein shall constitute the buyer the agent of Convair for the purposes of any such subsale and also providing that the buyer shall not be entitled tosell such goods after the appointment of a Receiver to its property, or it hasbeen placed in liquidation, or, not being a company, has committed an act of bankruptcy.
e) The buyer shall assume the risk of loss or damage to the goods from the time of delivery ex works and must accordingly reply on its own insurance from thattime.
Prior authorisation is required before any goods may be returned and a restocking fee will apply.
To the extent any provision of this warranty contravenes the law of any jurisdiction, such provision shall be inapplicable in that jurisdiction, and the remainder of the warranty shall not be affected.
Convair reserves all patent, copyright, proprietary design, manufacturing, reproduction, and sale rights to all products that the company manufactures. The copying of any products or documents without the written consent of Convair is a violation of national and state laws and will be subject to legal action by Convair.
a) The buyeracknowledges that these terms and conditions (and, where applicable, any contract) constitute a security agreement for the purposes of the PPSA. A security interest is taken in all goodspreviously delivered to the buyer and all the goods that may be supplied in thefuture to the buyer securing the performance by the buyer of its obligations under these terms and conditions and any contract between Convair and the buyer.
b) The buyer acknowledges and agrees that all goods supplied under these terms and conditions from time to time constitute its inventory, within the meaning ofthat term in the PPSA.
c) The buyer must ensure that no security interest (within the meaning of the PPSA) is created, exists or subsists over the goods in its possession or control other than a security interest arising under these terms and conditions.
d) The buyer agrees to do anything (such as obtaining consents, completing, signing and producingdocuments and supplying information) which Convair considers necessary for the purposes of:
(i) ensuring that any security interest under these terms and conditions is enforceable, perfected and otherwise effective;
(ii) enabling Convair to apply for any registration, or give any notification, in connectionwith any security interest under these terms and conditions so that it has thepriority required by Convair; and
(iii) enabling Convair to exercise its rights in connection with any security interest under these terms and conditions.
e) The Seller may apply all payments or other amounts it receives from the buyer or in exercise of its rights and remedies under these terms and conditions, first, in payment of any interest owing by the buyer to Convair; secondly, in payment of any costs, charges and expenses incurred by Convair as a consequence of any breachby the buyer of these terms and conditions; thirdly, in payment of all fees andcharges due to Convair under or in connection with these terms and conditions;and, fourthly, in payment and satisfaction of all other moneys owing by the buyerto Convair in accordance with the order of priority set out in section 14(6)(c)of the PPSA and Convair’s application of such payments and amounts shall prevail notwithstanding any purported application or appropriation to thecontrary by the buyer.
f) The Seller need not give any notice under the PPSA (including a notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.
g) To the extent permitted by law, the following provisions of the PPSA shall not apply as between Convair and the buyer: section 121(4); section 125; section 130 ( tothe extent that it requires Convair to give a notice to the buyer); section132(3)(d); section 132(4); section 135; section 142; section 143; and all provisions of Part 4.3 of the PPSA in relation to any of the goods while a person is a controller of that property in a capacity other than those mentioned in section 116(1) of the PPSA.
h) Neither party will disclose any of the information set out in section 275(1) of the PPSA in relation to this document or any security interest created under this document to any person (except that Convair may do so where required due to theoperation of section 275(7) of the PPSA or in accordance with another provision of this document).
g)"PPSA"means the Personal Property Securities Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time totime) and any amendment made at any time to any other legislation as a consequence of the PPSA.
14. Limitation of liability
a) Notwithstanding any other provision of these terms and conditions and to the extent permitted by statute, Convair will not in any circumstances be liable for any:
(i) indirect, consequential,incidental, special or exemplary damages, expenses, losses or liabilities; or
(ii) loss of profits,business interruption, loss of revenue, economic loss, loss of goodwill, loss of opportunity or expectation loss or loss of production,
which may be suffered or incurred by any person, including in respect of the goods or otherwise in connection with these terms and conditions.
b) The aggregate liability of Convair to the buyer in respect of events, acts or omissions will be limited, to the extent permitted by statute, to the purchase price paid for the goods.