C6893
1. APPLICATION
1.1 These Terms and Conditions of Sale ("Terms")
apply to all goods sold by TE (PNG) Limited ("the Company"). "Goods" means
all goods sold and/or delivered by the Company to the Customer from time
to time and includes goods delivered on consignment.
1.2 No amendment, alteration, waiver or cancellation of any of these Terms
is binding on the Company unless confirmed by the Company in writing.
1.3 The Customer acknowledges that no employee or agent of the Company has
any right to make any representation, warranty or promise in relation of
the Goods or the sale of the Goods other than as contained in these Terms.
2. TERMS OF PAYMENT
2.1 Prices quoted are ex Company's premises
and are subject to change without notice.
2.2 Payments are to be made direct to the Company, strictly net, without
any deduction or discount other than as stated herein or in the relevant
invoice or statement.
2.3 Payments are to be made before the goods are delivered, otherwise noted
in writing or indicated on our company's invoices.
2.4 Payment by cheque will not be deemed to be made until and unless the
relevant cheque is cleared.
2.5 Interest is payable on all overdue accounts calculated on a daily basis
at the rate of 2% per month as from the due date for payment until payment
is received by the Company.
2.6 A handling fee as determined by the Company from time to time will be
charged for each invoice.
3. PROPERTY IN GOODS
3.1 Legal and beneficial ownership of Goods
supplied by the Company will not pass to the Customer until such time as
the Goods so supplied and all other goods supplied by the Company to the
Customer from time to time, have been paid in full in cash or cleared funds.
4 RE-SALE OF GOODS
4.1 Should the Customer be a re-seller then, subject to sub-clause 4.2.4,
the Customer has the right to sell the Goods in its own name at full market
value and in the ordinary course of business.
4.2 Until the amount payable to the Company in respect of the Goods, and
in respect of all other goods previously supplied by the Company to the
Customer, has been paid in full in cash or cleared funds:
4.2.1 the Customer will hold the Goods only as bailee for the Company;
4.2.2 the Goods must be stored in such manner that they are readily distinguishable
from other goods owned by the Customer or other persons and so as to clearly
show that they are the property of the Company;
4.2.3 the Customer must indemnify the Company from and against any claim,
action, proceeding, damage, loss, cost, expense or liability incurred or
suffered by the Company arising out of the possession, use or disposal of
the Goods by the Customer or repossession or attempted repossession of them
by the Company; and
4.2.4 any sale of the Goods under clause 4.1 will only
be effected by the Customer as trustee for the Company and the proceeds
of such sale and the rights of the Company's Customer against its Customer
arising from such sale will be held on trust for the Company. The said proceeds
must be held in a separate account or otherwise clearly identified in the
books and records of the Customer.
4.3 If the Customer resells any Goods
then, unless the Goods are clearly identifiable by serial numbers or other
distinguishing marks, the Customer is deemed to have disposed of the Goods
in the chronological order of supply by the Company to the Customer (oldest
to most recent).
5. DEFAULT if:
5.1 the Goods are not paid for in accordance with
these Terms or any other written agreement between the Company and the Customer;
or
5.2 the Company receives notice of, or reasonably believes that a third
party may attempt to levy execution against or attach the Goods; or
5.3
any other event occurs which is likely to adversely affect the Customer's
ability to pay for the Goods (including but not limited to the appointment
of a receiver, receiver and manager, administrator, controller, liquidator,
provisional liquidator, trustee or similar person (each an "insolvency representative")
to the Customer's undertaking), then the Company may at any time thereafter,
without notice to the Customer and without prejudice to any other rights
which it may have against the Customer, terminate any contract relating
to the Goods and the bailment referred to in clause 4.2.
6 RIGHT TO ENTER PREMISES in any of the circumstances referred
to in the preceding clause, the Customer:
6.1 authorises the Company by
itself, its agents or representatives at all reasonable times, without notice,
to enter onto (with force if reasonably necessary) and at all necessary
time(s), to remain in and on any premises where the Goods are located in
order to collect the Goods, without being guilty of any manner of trespass;
and
6.2 assigns to the Company all the Customer's rights to enter onto and
remain in and on such premises until all the Goods have been collected.
7 ADMINISTRATION, RECEIVERSHIP ETC.
7.1 In any of the circumstances
referred to in clause 5.3, neither the Customer nor its insolvency representative
or any other person acting for the Customer and/or its creditors is entitled
to sell, charge, remove, dispose of, use or otherwise deal with the Goods
in any way inconsistent with the Company's ownership of the Goods, without
the Company's prior written approval.
7.2 The Customer, its insolvency representative
or any other person acting for or on behalf of the Customer and/or its creditors
is obliged to re-deliver the Goods to the Company immediately or immediately
on his appointment at its or his expense.
7.3 If the Goods are returned
to or collected by the Company, the Company will within 28 days, account
to the Customer or its legal representative for all monies received for
the Goods from the Customer less the Company's reasonable administration
charges, expenses incurred and loss of profits involved.
8 CONSIGNMENT If the Company supplies goods on consignment ("Consignment
Goods") then:
8.1 the Customer must bear all risk of loss and/or damage
to the Consignment Goods and must, in addition, effect and maintain insurance
against loss, fire and theft of the Consignment Goods, in an amount adequate
to cover the Company's interest as owner of such Consignment Goods;
8.2
the Customer must keep the Consignment Goods free from liens, encumbrances
and adverse claims of all kinds which might otherwise diminish or adversely
affect the Company's exercise of its full rights of ownership of the Consignment
Goods;
8.3 if the Consignment Goods are lost or damaged while in the Customer's
possession or care, the Customer undertakes to reimburse the Company, within
30 days of date of replacement or repair, as the case may be, the full cost
of such replacement or repair; and
8.4 the Customer must provide to the
Company, a monthly statement by the 15th of the following month, listing
in full all Consignment Goods supplied to the Customer as well as full details
of all purchasers of the Consignment Goods sold during the preceding month,
together with the quantities of the Consignment Goods purchased and the
relevant prices paid.
9. CUSTOMER AS TRUSTEE If the Customer carries on business as trustee
of a trust then the Customer warrants that:
9.1 the Customer enters into
the contract as trustee of a trust;
9.2 the Customer has all requisite powers
to enter into the contract;
9.3 the beneficiary of the trust approves the
purchase of the Goods on the terms of the contract; and
9.4 the assets of
the trust are available to the Company in satisfaction of any debt incurred
by the Customer.
10. VALUE ADDED TAX AND GOODS AND SERVICES TAX
10.1 VAT and Goods
and Services Tax , are not included in the quoted price.
10.2 Unless the
Customer produces a Tax Exemption Certificate applicable to the Goods and
quotes its Tax Exemption Number, the Customer must pay all sales tax payable
for the Goods at the date of invoice.
10.3 If VAT or GST is imposed on the
Company in respect of the Goods then the Customer must pay to the Company
the amount of such VAT or GST in addition to the quoted price.
10.4 The
Company will give the Customer written notice of the amount of any VAT or
GST payable under this clause and provide a tax invoice showing the amount
of Taxpayable.
11. CUSTOMS DUTIES, TARIFFS AND LEVIES
11.1 All applicable customs
duties, tariffs and levies are payable by the Customer unless the order,
order confirmation, invoice or other writing indicates otherwise.
12. DELIVERY
12.1 Availability dates are estimates only, but the
Company will use its best endeavours to maintain these estimates.
12.2 At
the Customer's request, the Company will arrange for the delivery of the
Goods into the Customer's premises at the Customer expense.
13. DELIVERY BY INSTALMENTS
13.1 The Company reserves the right
to deliver the Goods in whole or by instalments, as well as to deliver prior
to the date for delivery and in such event the Customer must not refuse
to take delivery of the Goods.
13.2 Where the Goods are delivered by instalments,
each instalment is sold under a separate contract.
13.3 Any failure on the
part of the Company to deliver instalments within any specified time does
not entitle the Customer to repudiate the contract with regard to the balance
remaining undelivered.
14. RISK
14.1 The Goods are entirely at the risk of the Customer from
the moment the Goods leave the Company's premises.
15. INSPECTION
15.1Unless the Customer has inspected the
Goods and given written notice to the Company within seven (7) days after
collection or delivery that the Goods do not comply with the relevant specifications
or descriptions, the Goods are deemed to have been accepted in good order
and condition.
16. RETURN OF GOODS
16.1 No claim for credit or damaged goods shall
be considered unless notification is made within 7 days in writing to the
Company.
16.2 The Company reserves the right to charge a re-stocking fee
of not less than than, but not limited to 10% of the invoice value of the
goods.
17. CANCELLATION OF ORDER
17.1 No order may be cancelled, modified
or deferred without the prior written consent of the Company and if such
consent is given, the Company will be reimbursed for all losses, including
loss of profits, and paid a cancellation and restocking fee (being not less
than 10% of the invoice value of the Goods).
18. COMPANY'S LIABILITY LIMITED
18.1 These Terms do not affect
the rights, entitlements and remedies conferred by the Laws of the Independent
State of Papua New Guinea.
18.2 The Company is not subject to, and the Customer
releases the Company from any liability (including but not limited to consequential
loss or damage, removal costs or re-installation costs or liability for
loss of use or profit) because of any delay in delivery or fault or defect
in the Goods. The Customer acknowledges that the Company is not responsible
if the Goods do not comply with any applicable safety standard(s) or similar
regulation(s), and that the Company is not liable for any claim, cost, damage
or demand resulting from such non-compliance.
18.3 If any statutory provisions,
any other statute(s) apply to the Agreement then, to the extent to which
the Company is entitled to do so, the Company's liability under the statutory
provisions is limited, at the Company's option, to:
18.3.1 replacement or
repair of the Goods or the supply of equivalent Goods; or
18.3.2 payment
of the cost of replacing or repairing the Goods or of acquiring equivalent
goods; or
18.3.3 refund of the purchase price, and in any case, the Company
will not be liable for any consequential or other direct or indirect loss
or damage.
19. WARRANTY
19.1 The Company warrants to the Customer that the
Goods will be supplied in an undamaged condition and will be free from defects
in material and workmanship.
19.2 On discovery of any defect in the Goods,
the Customer must notify the Company in writing of such defect. All warranty
claims must be received by the Company within seven (7) days of the day
of delivery.
19.3 The Company provides a warranty on parts and labour against
faulty material or workmanship for a period of twelve months from the date
of delivery. The warranty covers faulty workmanship on the equipment. The
warranty covers all components contained within the equipment housing but
does not include elements, heat lamps, light bulbs, fittings or glass, hoses,
external fittings or consumable items. The warranty is void if the Goods
have not been maintained and serviced, or if the Goods have been subject
to misuse, negligence or accident, operated incorrectly, serviced by unauthorised
persons or at the date of the claim the Goods have not been paid in full.
19.4 The Customer must not carry out any remedial work to alleged defective
Goods without first obtaining the written consent of the Company to do so.
The Customer's failure to provide written notice to the Company within the
required time of any alleged breach of the above warranty will release and
discharge the Company from any obligation or liability for that breach of
warranty. The above warranty extends only to the Customer and to no other
person.
19.5 The provisions of any act or law implying terms, conditions
and warranties, or any other terms, conditions and warranties which might
otherwise apply to or arise out of the agreement between the Company and
the Customer in relation to the Goods (the "Agreement") are hereby expressly
negatived and excluded to the full extent permitted by law.
19.6 The Customer
expressly acknowledges and agrees that it has not relied, and the Company
is not liable for any advice given by the Company, its servants, agents,
representatives or employees in relation to the suitability for any purposes
of the Goods.
19.7 The warranty covers defects and faulty workmanship under
normal use (single shift) with recommended service maintained on the equipment.
19.8 Warranty work is to be undertaken during normal business working hours
(8:00am to 5:00pm) and does not include travel to and from the equipment's
location.
19.9 Delivery to and from the Company or service agents, is at
the Customer's care. Credit on replacement parts will ONLY be issued on
receipt and examination of damaged parts and determined by the Company to
be defective.
20. CATALOGUES
20.1 Particulars in leaflets, catalogues, drawings,
brochures and other printed material are illustrations only, and form no
part of the contract between the Company and the Customer, and are not binding
on the Company.
21. SAMPLES
21.1 Any sample inspected by the Customer is solely
for the Customer's convenience and does not constitute a sale by sample.
All samples remain the property of the Company.
22. SPECIFICATIONS
22.1 Unless otherwise agreed in writing, the
Goods are supplied subject to any specification as to weight, quantity,
size, dimensions, finishes, chemical composition and physical properties
as may be published generally by the Company or as may be set out in any
specification issued by the Company in relation to the Goods, or, if no
such specification has been published or set out, subject to such specification
as is normally regarded as being commercially acceptable.
22.2 Where any
specification for the Goods are to be supplied by the Customer, they must
be supplied in a reasonable time to enable the Company to complete delivery
by the date for delivery.
23. CONTRACT
23.1 The terms of contract between the parties are
wholly contained in these Terms and any other writing signed by both parties.
The contract is deemed to have been made at the Company's place of business
in Port Moresby and any cause of action is deemed to have arisen there.
23.2 The provisions of the United Nations Convention on contracts for the
International Sale of Goods adopted at Vienna, Austria on 10 April 1980
does not apply to any Goods supplied by the Company to the Customer.
24. FORCE MAJEURE
24.1 The Company will not be liable for any breach
of contract due to any matter or thing beyond the Company's control (including
but not limited to transport stoppages, transport breakdown, fire, flood,
earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots
or civil commotion, intervention of public authority, explosion or accident).
25. WAIVER OF BREACH
25.1 No failure by the Company to insist on
strict performances of any of the terms in these Terms is a waiver of any
right or remedy which the Company may have, and is not a waiver of any subsequent
breach or default by the Customer.
26. NO ASSIGNMENT
26.1 Neither the Agreement nor any rights arising
under the Agreement may be assigned by the Customer without the prior written
consent of the Company which is at the Company's absolute discretion.
27. SEVERABILITY
27.1 If any provision contained in these Conditions
of Sale is held by a court to be unlawful, invalid or unenforceable, the
validity and enforceability of the remaining provisions are not affected.
