Terms & Conditions
In these conditions:-
1.1. The Seller and/or CyberChill means Cyberchill Pty Ltd.
1.2. The Purchaser means the other party to the contract.
1.3. The Contract means the contract between the Seller and the Purchaser for the supply of the Products.
1.4. The Products means the subject matter of the Contract.
1.5. The Price shall be the price for the Products contained in the most recent of the documents comprising in the Contract and shall include CyberChill' s right to increase in accordance with this Contract.
1.6. Order means an order placed by the Purchaser in accordance with Clause 2 hereof.
1.7. Component Costs shall include exchange rates, costs of labour, materials, transport, freight and insurances, indirect taxes and other costs, duties or expenses applicable.
1.8. Force majeure shall include, directly or indirectly, Act of God, fire, accident, war, strike, lock-out, shortage of labour, lack of skilled labour, breakdown of plant, non-delivery of raw materials, difficulty in procuring components or materials, delays by suppliers or sub-Contractors, delays in transit, delays by the Purchaser, legislative governmental or other prohibitions, or any other matter of any kind whatsoever which is beyond the control of CyberChill.
1.9. Termination means a Contract between CyberChill and the Purchaser herein shall be terminated immediately issuing notice which is duly delivered to the other at the delivering party's choice of the last address provided by the intended recipient for delivery by letter, fax or email.
2.1. Contracts, quotations and orders are entered into, made or accepted subject to the Sellers conditions of contract as herein printed. The Sellers conditions of contract shall not be deemed to have been altered, modified or varied save as mutually agreed by both the Seller and the Purchaser in writing. If these
conditions differ in any respect from those of any offer made or order placed by the Purchaser this document does not constitute an acceptance of such offer or order by a counter offer. The giving by the Purchaser of any delivery instructions for the Products or any part thereof, or any other conduct of the Purchaser in confirmation of the transaction set out on the face hereof shall constitute an unqualified acceptance by the Purchaser of these conditions.
2.2. The titles of the clauses in these conditions shall be disregarded when interpreting the clauses.
2.3. CyberChill may vary or amend these Terms by notice in writing to the Purchaser at any time. Any variations or amendments will apply to orders made by the Purchaser after the date of notice.
3.1. Unless previously disclosed to the Seller in writing the Purchaser will be deemed to be acting as principal and not as agent.
4.1. Subject and without prejudice to Clause 2 hereof quotations by the Seller for the Products to be manufactured to the Purchasers order are issued by the Seller on the basis that the terms quoted will remain open for the placing of orders (subject to acceptance by the Seller as set out herein) for 30 days from the date of the quotation. Thereafter, the Seller reserves the right to vary or cancel any quotation without notice.
4.2. Quotations for Products offered ex?stock are valid only for immediate acceptance and are otherwise subject to prior sale and any changes in Sellers prices.
4.3. A quotation is not an offer and may be withdrawn without notice and an order given in respect of a quotation is not binding on the Seller until accepted by the Seller.
4.4. All prices are exclusive of G.S.T. which will be charged, as applicable, by the prevailing GST rate.
5.1. The Seller shall perform no test, inspection or other examination of the Products other than those customarily carried out by it in respect of the type of Products to be supplied under the contract. If the Products satisfy such test inspection or examination they shall be deemed to be of the quality specified in the contract.
5.2. The Seller shall not be liable for defects, damage or deterioration in the Products, which are apparent on inspection unless the Purchaser gives written notice to the Seller of the defects alleged within three working days from the date the Purchaser receives the Products. On being so notified the Seller shall have the right to inspect the Products before the Purchaser uses or sells them provided that the Seller does so within fourteen working days from receipt of the Purchasers notice.
5.3. The Seller shall not be liable for defects in the Products, which are not apparent on inspection unless the Purchaser gives written notice to the Seller of the defects alleged within one month from the date the Purchaser receives the Products. On being so notified the Seller shall have the right to inspect and test the Products before the Purchaser uses or sells them provided the Seller does so within a reasonable time considering the nature of the defect alleged.
5.4. The total liability of the Seller in respect of all breaches of contract in relation to the Products shall not exceed the difference between the value of the Products in question at the time of delivery and their value as set out in the invoice. The Seller shall have the option of replacing the Products in question and in such case the Purchaser shall permit the Seller to retake possession of the Products originally delivered and the Seller shall deliver the replacement Products within a reasonable time. The replacement Products shall be accepted by the Purchaser in substitution for its right in respect of the Products replaced. In no circumstances shall the Seller have any liability for any incidental or consequential loss or damage whatsoever and the Purchaser is expected to insure accordingly.
5.5. The Purchaser shall not be entitled by reason of any claim against the Seller to withhold payment of the price of the Products or to claim any right of set off against any payment due to the Seller under this or any other contract.
5.6. Any warranties contained herein or implied by law apply to the original Purchaser only and are not transferable.
5.7. No other warranty as to fitness for particular purpose, even if such purpose is known to the Seller, or of satisfactory quality shall apply to the supply of the Products by the Seller hereunder. The Purchaser acknowledges the Products purchased are to be placed and operated in accordance with the Products specification detailed in this Contract. CyberChill Products are carefully designed to operate within their published specifications and not otherwise. In the event of the Purchaser not operating the Products in strict accordance with its specifications the CyberChill warranty shall not apply.
6.1. CyberChill will nominate and coordinate a carrier on the Purchasers behalf unless otherwise instructed by the Purchaser.
6.2. The Purchaser may nominate its own carrier, in which case it must coordinate the delivery with CyberChill.
6.3. All costs and expenses of transportation from the Sellers stores to Purchasers address shall be paid for by the Purchaser in accordance with Sellers standard delivery charges as in force at the time of delivery.
6.4. Any extra carrier charges due to difficult access, wrong or misleading instructions provided by the Purchaser, frustrated delivery, or the requirement for extra personnel, will be charged to the Purchaser at cost, plus a 10% service fee, plus GST charged by CyberChill.
6.5. Unless otherwise specifically agreed in writing and subject to these conditions all risk of loss or damage to the Products shall pass to the Purchaser upon delivery of the Products in accordance with Clause 5 hereof.
6.6. If CyberChill does not receive forwarding instructions sufficient to enable it to despatch the Products within 14 days of notification that the Products are ready, the Purchaser shall be deemed to have taken delivery of the products from such date. The Purchaser shall be liable for storage charges payable monthly on demand.
6.7. A completed drivers manifest or delivery docket whether signed by the driver or by the Purchaser or its employee or agent will be proof of delivery of Products invoiced.
7.1. Cancellation of orders, in whole or in part, cannot be accepted without the Sellers consent in writing and will be accepted on the basis that the Purchaser indemnifies the Seller in respect of all losses, costs and expenses incurred by the Seller up to the date upon which the Seller accepts the Purchasers notice of cancellation.
8.1. The Products supplied have a warranty covering faulty workmanship or component failure for a period of 24 months from the date of despatch, subject to the Products having been installed and used in accordance with the instructions supplied or good engineering practice, and that the Products have not been subjected to misuse or external influences such as lightning strikes and supply disturbances. The Seller will determine the cause and liability for failure.
8.2. All warranties provided by CyberChill shall commence to run from either the date of payment stated in the invoice issued by CyberChill or the date of delivery of the Products to the Purchaser, whichever occurs first.
8.3. The Purchaser shall be responsible for any costs to return the Products to the Seller and, subject to failure resulting from a warrantable cause; the Seller will be liable for the cost of return to the Purchaser by normal methods. The Seller shall have no liability for any incidental or consequential damage whatsoever.
9.1. The Purchaser shall pay at the end of the month following the month of delivery (Those Purchasers who have an approved account with CyberChill). The Seller may charge interest at the rate of 3 percent per annum above the National Australia Bank's base rate in force at the time on any overdue payment.
9.2. If delivery of any Products is delayed at the request of the Purchaser, the Seller shall give notice to the Purchaser when the Products are available for delivery and the Purchaser shall pay for such Products at the end of the month following the month when they receive such notice and the risk of such Products shall pass to the Purchaser on the date of the giving of such notice by the Seller. The Purchaser shall pay the Sellers storage costs for such Products.
9.3. Until payment for the Products is made in full the Purchaser shall on request, provide a list of the current whereabouts of each unpaid Product to CyberChill, plus the name of the person in possession of the premises in which the Products are situated and the times when reasonable access to the Products is available to CyberChill.
10. PASSING OF PROPERTY
10.1. Legal title to and the beneficial interest in the Products shall not pass to the Purchaser until the price due under The contract (or any other contract made prior to the date of the contract between the Purchaser and the Seller) has been paid, provided nevertheless that the Purchaser shall bear the risk of any loss of or damage to, or deterioration of the Products from whatever cause arising after the date of delivery.
10.2. If Products the property of the Seller are mixed with Products the property of the Purchaser or are processed with or incorporated therein, the product thereof shall become and/or shall be deemed to be the sole and exclusive property of the Seller. If Products the property of any person other than the Purchaser are reprocessed with or incorporated therein, the product thereof shall become or shall be deemed to be owned by the Seller in common with that other person.
11. INTELLECTUAL PROPERTY RIGHTS
11.1. CyberChill's Products incorporate its copyright, patent, design and trade mark rights (CyberChill's Intellectual Property) which remain CyberChill's permanent property.
11.2. CyberChill grants to the Purchaser and any person thereafter holding any interest in the Products, the right to use CyberChill's Intellectual Property only to the extent of use of the Products in its intended operation and not otherwise.
11.3. The Products will display CyberChill's trade mark and other markings (CyberChill's markings) which are part of CyberChill's Intellectual Property. It is a condition of this Contract that the Purchaser will maintain all CyberChill's markings as they appear at the time of delivery and will not remove, deface, obscure or cover any of them so that they are less conspicuous than the time of delivery; all markings indicating the name CyberChill shall be maintained to be visible and in good order and condition during operation of the Products.
11.4. It is a condition of this Contract that the Purchaser warrants and promises to CyberChill that if the Purchaser resells the Products or parts with possession of it, the Purchaser will require any person howsoever obtaining possession of the Products at any time thereafter to agree to conditions in the same terms as to CyberChill's Intellectual Property as are herein set out. The Purchaser agrees that it will indemnify CyberChill against any breach of these terms by any successor to possession of the Products.
11.5. The Purchaser shall be responsible to comply with all laws concerning labelling, use, operation and disposal of the Products.
11.6. The Purchaser acknowledges that CyberChill is selling the Products on the condition that the Purchaser will not infringe any of CyberChill's Intellectual Property rights. The Purchaser acknowledges that damages alone does not comprise an adequate remedy for such a breach and CyberChill shall have the right without diminution of any of CyberChill's statutory rights to protect its interests by injunction or any other appropriate processes including the taking of possession of infringing matter.
11.7. In the event that the Purchaser shall make any drawing, diagram, picture, photograph, electronic representation, electronic program (representation) whereby the whole or any part of the Products is represented, the Purchaser agrees that the representation shall be CyberChill's copyright property and its rights relating thereto shall be as owner.
12. AGREEMENT BETWEEN THE PARTIES
12.1. These conditions together with the Contract constitute the whole agreement between the Seller and the Purchaser and supersedes and extinguishes any prior quotes, agreements, undertakings, representations, warranties, assurances and arrangements of any nature, whether in writing or oral. The Purchaser acknowledges that it has not been induced to enter into the Contract by any representation, warranty, promise or assurance by the Seller or any other person.
13. LAW AND ARBITRATION
13.1. The law applicable to this these conditions shall in respect of any Purchaser whose address is in Australia or in any other country shall be the law applicable in the State of New South Wales and any court proceedings shall be brought only in that State
14.1. CyberChill is bound by the Privacy Act 1988 and takes steps to ensure that all personal information obtained in connection with the Purchaser will be appropriately collected, stored, used, disclosed and transferred in accordance with the National Privacy Principles. Such information may be accessed by request to CyberChill in accordance with the Privacy Act.
14.2. CyberChill requires that the Purchaser comply with the National Privacy Principles in connection with any personal information supplied to it by CyberChill in connection with this Agreement
15.1. In the event that CyberChill makes any bona fide error or omission in any statement concerning the Products including any representation as to price, the Purchaser indemnifies CyberChill from any claim otherwise available to the Purchaser, howsoever arising.