Standard Terms and Conditions of SaleShare
IMPORTANT: These terms and conditions are incorporated in every contract for the supply of Goods and Services by Frontline Systems Australia Pty Limited (FSA) to its Buyers. Whenever a Buyer orders or accepts Goods and Services from FSA, it does so on these terms and conditions.
Interpretation: In these terms and conditions:
“FSA” means Frontline Systems Australia Pty Limited ABN 61 059 040 998 and its assigns and any related body corporate as defined in the Corporations Law (unless that body corporate is also the Buyer).
“Buyer” means the person acquiring Goods or Services under these terms and conditions.
“Delivery” means the collection of the Goods from FSA’s premises by the Buyer.
“Ex warehouse” means the Buyer, or the Buyer’s carrier, must collect the Goods from premises nominated by FSA On collection of the Goods risk passes to the Buyer. The Buyer must pay all freight expenses.
“Goods” means Goods supplied or to be supplied by FSA.
“Month of issue” means the month nominated as the issue date at the commencement of those terms and conditions or if no such month is nominated, the month during which the standard terms and conditions are issued.
“Indent Order” means an order placed by the Buyer with FSA in which FSA must purchase Goods and or Services from a Third party and not supply FSA’s Standard Goods and or Services.
“Return of Materials Authorisation” means a notice issued by FSA authorising the return of specified Goods by the Buyer to FSA.
“Sales Contract” means these terms and conditions and the quotation relating to the sale of Goods and or Services to the Buyer.
“Services” means Services performed or to be performed by FSA.
“Standard Goods” means Goods usually stocked by FSA not Goods supplied in accordance with the Buyer’s own specifications or requirements.
“Price” means the quoted price that appears on a quotation from FSA unless otherwise expressly agreed to in writing by FSA. The Price is valid for the date appearing on the quotation from FSA unless otherwise expressly agreed to in writing by FSA. The price of Goods and Services supplied by FSA will be FSA’s list price for the Goods and/or Services at the time the Goods are delivered, and/or the Services are performed, less any prior agreed discounts. Prices quoted are current at the date of issue and based on rates of freight, insurance, customs duties, exchange rates, shipping expenses, sorting and stacking charges, cartage, wages, cost of materials and other charges affecting the cost of production. If the Goods have not been delivered and/or the Services not performed and the cost of any of the items listed in this paragraph increase then FSA may increase the quoted Price to allow for the increased cost to FSA. This condition can only be varied by FSA and must be in writing. Prices quoted Ex-warehouse mean the Buyer, or the Buyer’s carrier, must collect the Goods from premises nominated by FSA. On collection of the Goods, risk passes to the Buyer. The Buyer must pay all freight expenses and all taxes and duties.
Packaging: All prices quoted include standard packaging. Any special packaging required by the Buyer will be charged to the Buyer at current prices.
Price discrepancies: If the Buyer thinks that an incorrect charge has been made for Goods and or Services, the Buyer must submit payment for the whole of the invoiced amount together with a written request for credit for the disputed amount within 14 days of the date of the invoice. Subject to any rights preserved by legislation FSA may, in its absolute discretion, refuse to give credit for the disputed amount if the request is not received within
14 days of the date of invoice
Credit: A Buyer’s application to open a credit account must be submitted on an approved Company Credit Application form. Information disclosed by the Buyer on this form must be accurate. The Buyer must immediately notify FSA of any subsequent material change to the details. FSA may refuse credit at its absolute discretion or may allow credit on Terms that FSA considers appropriate. Payment of credit accounts must be received strictly within the terms stated on the invoice unless otherwise expressly agreed to in writing by FSA. If the Buyer is in default of these payment terms FSA may take one or more of the following actions against the Buyer:
(1) Withhold supply and dispose of Goods to be supplied to the Buyer
(2) Institute legal action for recovery of outstanding amounts
(3) Terminate credit facilities and cancel any sales contracts
(4) Charge interest on all undisputed overdue invoices exceeding 30 days at 1.5%per month or one percent above the rate set by the Commonwealth Bank, on overdrafts over one hundred thousand dollars( $100,000) compounded daily (whichever is the higher).
(5) Take other steps available to it under those terms and conditions or otherwise refuse to perform any Services. FSA will not be liable to the Buyer for any loss, damage, or expense arising directly or indirectly from FSA taking this action and the Buyer must indemnify FSA against all loss, damage and expense (including legal fees on a solicitor/client basis) incurred by FSA in taking such action.
Delivery: Dates and times provided by FSA for the delivery of Goods or the performance of Services are estimates only and FSA is not liable on any account for loss, damage or expense (consequential or otherwise) arising directly or indirectly out of any delay in delivery or performance. FSA reserves the right to deliver Goods by way of instalments and each such instalment will be deemed to be sold under a separate sales contract. Normal payment terms apply to these instalment deliveries. Failure by FSA to make any delivery does not entitle the Buyer to terminate the Sales Contract.
Risk: Unless otherwise agreed to in writing by FSA, risk in Goods purchased passes to the Buyer on delivery of the Goods.
Order Responsibility: The Buyer bears all responsibility for all orders placed. FSA is not liable for any consequential loss arising from technical advice given prior to an order being placed. The Buyer agrees to pay for all Goods ordered and supplied.
Quantities: FSA is not liable for failure to deliver the exact number of Goods invoiced unless a written claim for short delivery is received by FSA within 7 days from the date of initial delivery. Requests for proof of Delivery and statements of short supply will only be considered by FSA if received in writing within such 7 days.
Cancellation by the Buyer: With the prior written approval of FSA, the Buyer may cancel a Sales Contract in whole or in part before delivery or performance if the Buyer pays a cancellation fee equal to 20% of the value of the cancelled Sales Contract . A minimum fee of $100 must be paid by the Buyer. The fee becomes immediately due and payable on cancellation. FSA need not approve the cancellation or alteration of any Indent Orders or other orders to be supplied by FSA involving Goods, which are not Standard Goods.
Cash sale Accounts: FSA will only order Goods and or Services for cash once payment is received in advance by way of cleared funds, by payment via cheque / credit card / direct deposit in FSA’s account.
Return of Goods: The Buyer may return Goods to FSA for a credit on the following conditions
(1) The Goods are Standard Goods and were not supplied in accordance with an Indent Order;
(2) The Buyer has requested and obtained a Return of Materials Authorisation (RMA) from FSA for the Goods;
(3) The RMA number accompanies the Goods and the Goods correspond with those advised by the Buyer when obtaining the RMA;
(4) The Buyer complies with the reasonable conditions specified by FSA in the Return of Materials Authorisation;
(5) The Goods are returned within 14 days of their delivery;
(6) The Goods are returned at the Buyer’s expense, with all necessary freight and insurance prepaid;
(7) The Goods are returned in the same condition as when delivered;
(8) The Buyer pays FSA a restocking fee of 10% of the invoiced value of the Goods.
(9) FSA is entitled to deduct part or its entire fee from any credit given to the Buyer.
Default: FSA may by written notice & without prejudice to any of its accrued rights cancel any or all Sales Contracts with the Buyer if one or more of the following occurs:
(1) The Buyer defaults inmaking any payment under any Sales Contract or fails to carry out any provision of any Sales Contract and the Buyer does not remedy that failure (where the failure is capable of remedy) within 7 days after written notice to the Buyer requesting it to do so.
(2) Execution or other process of a court or authority is levied for an amount exceeding $10000 on any of the Buyer’s property and is not satisfied, set aside or withdrawn within 7 days of its issue.
(3) An order for payment is made or judgment for an amount exceeding $10000 is entered or signed against the Buyer, and is not satisfied within 7 days.
(4) The Buyer convenes a meeting of its creditors, proposes, or enters a scheme of arrangement (except for the purpose of reconstruction or amalgamation) or a composition with any of its creditors;
(5) An application to or order by a court to wind up the Buyer or a resolution is passed to wind up the Buyer, or notice of intention to propose a resolution to wind up the Buyer is given.
(6) A receiver or receiver and manager, or other controller as defined in section 90 of the Corporations Act 2001 is appointed in respect of the Buyer or the whole or any part of its undertakings property or assets or any steps are taken for the appointment of such a person.
(7) The Buyer is taken to have failed to comply with a statutory demand within the meaning of sec 459F of the Corporations Act 2001 or suspends payment of its debts
(8) The Buyer commits an act of bankruptcy or takes advantage of the provisions of Part X of the Bankruptcy Act 1966.
(9) An administrator of the Buyer is appointed under Part 5.3A of the Corporations Act 2001.
Intellectual property rights: The Buyer warrants that any design, specification or instructions furnished by the Buyer to FSA will not cause FSA to infringe any patent, design, copyright or trade mark in carrying cut the Buyer’s order. The Buyer indemnifies FSA and its employees, directors and agents against any liability, loss or expense, including solicitors’ fees arising out of or concerning a breach of this warranty. The sale and purchase of Goods does not confer on the Buyer any license or rights under any patent, design, copyright or trade mark belonging to or used by FSA.
Performance: Any figures or estimates given as to the performance of Goods or Services are based upon FSA’s experience and are such as FSA would expect to obtain on test. FSA is only liable for failure of the Goods or Services to comply with figures or estimates when those figures or estimates are guaranteed in writing within specified margins.
Sub-Contracting: FSA reserves the right to sub-contract the manufacture and or supply of the whole or part of any Goods or Services to be supplied under a sales contract.
Retention of title: Until the Buyer has paid all monies owed to FSA ownership of all Goods supplied by FSA to the Buyer under any Sales contract or otherwise title in the Goods remains with FSA
(1) must hold all such Goods in its possession or that of its employees or agents, as bailee of FSA;
(2) must in the event that any of the Goods are sold by the Buyer, act as an agent for FSA and the Buyer must hold the proceeds of sale on behalf of FSA and must pay them to FSA on request and any agreement by FSA to extend credit to the Buyer or any other indulgence does not affect the Buyer’s liability to account to FSA as aforesaid of the ownership of the Goods by FSA;
(3) must store the Goods so as to show clearly that it is FSA’s property and must keep the Goods fully insured at its own expense and hold the proceeds of any insurance claimin respect of the Goods (to the extent of the Buyer’s indebtedness to FSA) in trust for FSA;
(4) upon any default by it in payment of any amount due to FSA, irrevocably authorises FSA by its servants or agents to enter any premises owned, leased or otherwise occupied by the Buyer, any agent or associate of the Buyer for the purpose of taking possession of the Goods and hereby authorises FSA by its servants or agents to use all reasonable force to obtain such possession. Notwithstanding anything in this clause, risk in the Goods passes to the Buyer on delivery of the Goods by FSA to the Buyer, its employees or agents. The above provisions apply despite any agreement or arrangement under which FSA gives the Buyer credit.
Lien: In addition to any other lien to which FSA may be entitled to a general lien on all property belonging to the Buyer in FSA’s possession for amounts in respect of Goods and Services supplied by FSA will prevail.
Statutory Rights, Limitation of Liability: Notwithstanding any other provision of the Sales Contract, if any liability on the part of FSA arises to the Buyer (whether in contract, tort or otherwise) for any loss, damage, harm or injury arising out of or in any way connected with the provision of or failure in provision of a purported provision of the Goods and or Services, FSA’s liability for all such loss, damage, harm or injury and for which FSA is or may be liable in all and any circumstances shall be limited to the payment by FSA of
(1) In the case of the supply of Goods:
a. replacement of the Goods; or b. supply of equivalent Goods; or
c. payment of the cost of replacing such Goods; or
d. payment of the cost of acquiring equivalent Goods;
(2) In the case of Services:
a. supply of the service again; or
b. payment of the cost of having the Services supplied again.
(3) Subject only to clause (5) and notwithstanding any other provision of these terms and conditions FSA shall not be liable to the Buyer for any special, consequential, indirect loss, damage, harm or injury suffered by the Buyer or any other person arising out of or in any way connected with the provision of or failure in provision of or purported provision of the Goods including without limitation loss of market, loss of profit or loss of contract, and the Buyer shall indemnify FSA in respect of any claims, demands, damages, proceedings, costs, charges and other expenses caused by or in any way connected with such loss, damage, harm or injury.
(4) Except as otherwise expressly provided in these conditions, and subject to clause (5), FSA excludes all statements, representations, warranties, conditions, promises, undertakings, covenants and other provisions whether express or implied (and whether implied by law including Act of parliament or otherwise), relating to the quotation, the Goods (whether as to their quality, fitness for any purpose, correspondence with any description or sample or otherwise) or their delivery, being provision that might otherwise form part of these conditions or any contract or be collateral to or form part of any agreement that is collateral to these conditions or any contract.
(5) These terms and conditions must be read subject to the provisions of the Trade Practices Act 1974 (“the Act”) where such provisions cannot be negated. To the extent that the Act permits it to do so, FSA limits its liability for breach of an implied condition or warranty, including any consequential loss which the Buyer sustains or incurs, as stated above.
Application of terms and conditions: The Buyer agrees that all Sales Contracts entered into during or after the Month-of-Issue will incorporate these terms and conditions. FSA may issue new standard terms and conditions from time to time. Sales Contracts entered into after new standard terms and conditions are issued will incorporate those
new standard terms and conditions.
Entire agreement: The Sales Contract, incorporating these terms and conditions, contains the entire agreement and understanding between FSA and the Buyer on the subject matter of these terms and conditions and supersedes any prior agreement or understanding on anything connected with that subject matter. The Sales Contract will not be subject to the Buyer’s own standard terms and conditions of purchase except to the extent that a director of FSA has agreed
in writing to adopt those terms and conditions.
Variation: An amendment or variation to these terms and conditions is not effective unless it is in writing and signed by an authorised officer of FSA.
Waiver: Failure or delay by FSA to exercise a power or right does not operate as a waiver of that power or right. The exercise of a power or right by FSA does not preclude either its exercise in the future or the exercise of any other power or right. A waiver is not effective unless it is in writing and in the case of a waiver by FSA, signed by a director of FSA Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
Severance: If anything in the Sales Contract is unenforceable, illegal or void then it is severed and the rest of these terms and conditions remains in force.
Governing Law: The law of New SouthWales governs these terms and conditions. FSA and the Buyer submit themselves to the exclusive jurisdiction of the courts of New SouthWales and the Federal Court of Australia and agree that any lawsuit must be heard in those courts.
New and Increased Taxes: Any increase in the direct or indirect cost to FSA of supplying the goods and/or services pursuant to the tender/purchase order/contract as a result of any new tax, duty or other impost or any change in the rate of any tax, duty or other impost (including by not limited to a tax relating to goods and/or services) which comes into force after the date of FSA ‘s tender/quotation shall be borne by the purchaser and the contract price shall be adjusted accordingly.
Personal Properties Securities: The Buyer acknowledges that by virtue of these terms FSA has or will have a security interest in the Goods for the purposes of the Personal Property Securities Act 2009 (Cth) (PPS Act) and to the extent applicable the PPS Act applies: The Buyer acknowledges that FSA may do anything reasonably necessary, including but not limited to registering any security interest which FSA has or claims to have over the Goods on the Personal Property Securities Register established under section 147 of the PPS Act in order to perfect the security interest and comply with the requirement of the PPS Act. The Buyer agrees to do all things reasonably necessary to assist FSA to undertake the matters set out above. The Buyer waives pursuant to s.157(3)(b) of the PPS Act the right to receive notice of a verification statement in relation to any registration on the register.
The Buyer and FSA agree that, pursuant to section 115 of the PPS Act, the following provisions in the PPS Act do not apply in relation to a security interest in the goods to the extent, if any, mentioned (words in this provision have the same meaning as in the PPS Act):
i. section 129 (disposal by purchase);
ii. section 125 (obligation to dispose of or retain collateral) in that FSA may extend the time for delay as FSA considers appropriate;
iii. section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor before disposal;
iv. subsection 132(4) (statement of account if no disposal);
v. section 135 (notice of retention);
vi. section 142 (redemption of collateral);
vii. section 143 (reinstatement of security agreement);
ABN 61 059 040 998 Unit 25 1 Talavera Rd, Macquarie Park NSW 2113 Telephone 02 9886 2000 Fax 02 98891171
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