Standard Terms and Conditions of Sale – December 2005

1. GENERAL

All orders on quotations and price list placed with Kelba (Australia) Pty. Limited hereinafter called the ‘Company’ shall be deemed to be subject to the following terms and conditions, and to the extent these have not been varied or added to in writing by the Company these are the only terms and conditions on which orders are accepted.

2. ACCEPTANCE

All orders based on quotations and price lists are subject to acceptance by the Company. The Company reserves the right to accept in whole or in part any order or decline an order and any order or part order not excepted is deemed cancelled.

3. VALIDITY

Quotations are valid for a period of 60 days from the date thereon unless previously withdrawn.

4. PRICES

All prices quoted are net, ex- factory Sydney, and do not include G.S.T. The Company reserves the right to correct all typographical or clerical errors which may be present in quotations or specifications.

5. TERMS OF PAYMENT FOR KELBA ACCOUNT HOLDERS

Payment shall be made by the purchaser no later than the last day of each month for equipment dispatched by the Company during the proceeding month as shown by the date of the Company’s relevant invoice.

6. DELIVERY

Not withstanding subsequent confirmation by the Company, the delivery period indicated is approximate only. The Company shall be under no liability for any loss or damage however arising if the goods are not delivered within that time period.

7. CANCELLATION

The purchaser may cancel his or her order only with the Company’s prior written consent and upon payment on demand of reasonable and appropriate cancellation charges to be determined by the Company

8. RETURNED EQUIPMENT

If the equipment ordered, or any part thereof has been shipped to the purchaser, the equipment may be returned only after authorization by the Company. Credit for the returned equipment shall be determined by the Company after factory inspection. Goods special in any nature whatsoever cannot be returned. A restocking charge may apply to returned goods.

9. WARRANTY

The Company warrants that all the equipment manufactured by the Company is free from defects in workmanship and materials under normal use and service. Equipment or any part thereof which is returned to the Company, transportation prepaid by the purchaser, within three years after original shipment and found by the Company, after examination not to be free from such defects in workmanship or materials will at the option of the Company, be repaired or replaced free of charge ex-factory Sydney.

This warranty may not apply to replacement or repair which is required as a result of improper installation, misuse, maladjustment, corrosion, modification or lack of routine maintenance by others.

The Company does not guarantee the overall performance of any plant or the result of any process with which the Company’s equipment is integrated or for which other services are provided by the Company. The Company’s responsibility is limited to making the equipment manufactured by the Company perform in accordance with the Company’s specifications.

The Company makes no warranty whatsoever with respect of equipment, materials or parts supplied or manufactured by others and such equipment, materials and parts will be repaired or replaced only to the extent of the original supplier or manufacturer warranty.

The warranty does not extend to, and the Company accepts no liability for consequential and/or secondary damages, injury or losses of any kind sustained directly or indirectly as a result of failure or defect in any product, material, installation or service.

The liability of the Company under this clause and in the respect of any other liability as manufacturer of the goods shall be limited to the cost of replacing the goods or of having the goods repaired at the election of the Company.

10. SHIPMENT AND DELAYS

The Company shall not be liable for delay in delivery or failure to manufacture due to causes beyond its control such as but not limited to acts of god, fires, floods, accidents to machinery, differences with workmen, strikes, lockouts, breakdowns, labour shortages, priorities required or requested by any government or agents thereof, delay in transportation, lack of transportation facilities or restrictions imposed by any laws.

Partial shipments may be made and invoiced on completion or manufacture.

If delivery is delayed at the request of the purchaser, equipment may be stored while the Company will invoice the full value of the equipment stored.

11. PASSING OF RISK

Risk of loss or damage to goods from whatever cause arising shall pass from the Company to the purchaser immediately upon delivery by the Company into the hands of the carrier.

12. TITLE

Unless payment in full to the Company of the total contract price:
(a) property in the goods remains with the Company and the purchaser agrees to hold the goods as Bailee for the Company;
(b) the Company may at any time terminate any contract relating to the goods and the bailment without notice to the purchaser and may thereupon take possession of the goods without prejudice to any other remedy.
(c) the purchaser authorises the Company by its servants or agents to enter any premises owned, leased or otherwise occupied by the purchaser for the purpose of taking possession of the goods and authorises the Company by its servants or agents to use all reasonable force to obtain such possession;
(d) if the goods are sold by the purchaser, the purchaser acknowledges that such sale is by the purchaser as bailee for and on behalf of the company and agrees to hold the proceeds of sale on trust for the company until payment in full to the Company for the goods.

13. INSURANCE

The Company will not arrange insurance cover of any type on any goods unless otherwise specified by the purchaser and accepted by the Company in writing.

14. INJURY AND DAMAGE

The purchaser shall indemnify the Company and its employees and agents To the extent permitted by law against all claims whether made under any contract or statute or under common law in respect to any loss or damage to any property whatsoever, or injury to any person whatsoever arising out of failure or any defect in material or workmanship in connection with any goods manufactured and/or sold or services provided by the Company, or for any default or negligence on the part of the Company’s personnel in connection with or during the carrying out of any work by the Company on the purchaser’s or any other person’s property.

15. DRAWINGS AND PRINTED MATTER

All information contained in printed or descriptive matter represents generally the goods specified therein, but shall not be taken as necessarily representing the goods the subject of an order and shall not form part of a contract. Certified outline drawings applicable to the equipment ordered can be supplied on request. The purchaser acknowledges that all property and rights including copyright in such printed or descriptive matter belongs to the Company absolutely for its own use and benefit.

16. MISCELLANEOUS

The validity and interpretation of quotations or any contract of sale arising out of quotations, and the rights and duties of the parties thereto shall be governed by the laws of New South Wales, Australia and the parties hereto accept the exclusive jurisdiction of Courts exercising jurisdiction in the State.

17. SUITABILITY FOR TRADE USE

Unless specified as Trade Approval, none of the goods supplied by the Company can be assumed to be certified for Trade weighing purposes.