Terms & Conditions
1.1. “Conditions” means these conditions of sale.
1.2. “Contract” means any agreement pursuant to which we agree to supply the products to you. A Contract may arise in different ways such as when we issue a purchase order confirmation to you or when you accept a sales quotation submitted by us.
1.3. “Products” means the products that we are selling to you and that are the subject of a contract.
2.1. All sales by us to you shall be subject to these Conditions.
2.2. These Conditions supersede any other terms and conditions in conflict therewith, including those on your purchase order form, if any. However, any special conditions contained in a Contract shall supersede these Conditions.
2.3. Your receipt of the Products shall constitute your acceptance of these conditions.
2.4. To modify these Conditions, both parties must sign an agreement to that effect.
2.5. Our agents and representatives have no authority to make representations, statements, warranties, conditions or agreements that conflict with these conditions. Any such unauthorised representations, statements, warranties, conditions or agreements shall not bind us nor shall they form a part of the Contract.
2.6. Unless otherwise stated in the Contract, the price of the products does not include any applicable taxes.
2.7. Credit Accounts will be closed if not used within 12 months.
3 .1. Unless otherwise stated in the Contract, our payment terms are by credit card or direct deposit into our account prior to production.
3.1.1. NB: We will send you a copy of the invoice on receipt of your signed order confirmation.
3.2. You shall not withhold payment, make deductions or apply off sets unless you obtain our written consent beforehand.
3.3. If your account exceeds our trading terms and is passed over for collection, the Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by ESP Australia Pty Ltd for enforcement of obligations and recovery of monies due from the Customer to ESP Australia Pty Ltd.
3.4. If we do not receive payment within the agreed trading terms, ESP Australia Pty Ltd may suspend any further deliveries. Additionally, ESP Australia Pty Ltd may charge interest (as liquidated damages) at the rate of two percent (2%) above the rate of interest fixed from time to time under Section 2 of the Penalty Interest Rates Act 1983 on any amounts outstanding until such time as payment has been received in full.
4.1. Unless otherwise stated in the Contract, the price excludes delivery.
4.2. Risk of loss or damage to the products shall pass from us to you upon receipt of goods.
4.3. By prior agreement with you, we may make partial shipments or split deliveries. We shall mutually agree who will bear any extra costs resulting from partial shipments or split deliveries.
5.1. If we are delayed because of any act, omission, default or request by you, we may, in our discretion and without prejudice to our other rights, demand partial payment of the Contract price equal to the value of the work performed. We may also recover our reasonable costs and expenses incurred as a result of such delay.
5.2. If such delay continues beyond a reasonable time, we may, in our discretion and without prejudice to our other rights, cancel the Contract.
6.1. We warrant that the products will comply with the then current product specifications for those products as set out (on the Company’s website) for a period of 12 months from the date of dispatch of the Products from the Company’s premises, or as described in the then current product specification.
6.2. On condition that you give us written notice of any defect in material and workmanship within 5 working days from the date of it’s appearance, and, if we so request, provide us with proof of such defect, we will in our sole discretion repair or replace the defective products in question at our own cost and expense, including the cost of re-delivery of any replacement products, but shall have no other liability whatsoever to you with respect to such products.
6.3. This warranty does not apply:
6.3.1. If you have without our prior written approval attempted to repair or dismantled or in any other manner tampered with the products.
6.3.2. If the products have been used in a manner contrary to or outside their stated specifications (including its product or installation specifications) or other instructions, including:
22.214.171.124. In detrimental environmental or other conditions.
126.96.36.199. Or in a manner likely to cause excessive wear and tear.
188.8.131.52. Or not have been appropriately charged by light prior to use in darkened conditions.
6.4. You must examine the products immediately following your receipt of the products. If you have any claim for short count, or for breach of the warranty in paragraph 6.1 above, which should have been obvious on examination, then, you must give us notice within 5 business days of the date you take possession of the products, or they are deemed to have been received complete and in good order. Payment for the products may not be withheld pending such examination.
6.5. Except as expressly set out in the warranty given pursuant to paragraph 6.1, conditions of Sale and to the extent permissible at law, we exclude all other liability whatsoever we may have in respect of the products or to you. This exclusion applies for the benefit of all our employees and contractors and to everyone else for whom we are responsible. None of them are liable to us or have to pay us for anything that any of them does or does not do, or delays in doing, whether or not it is contemplated or authorised by this agreement. This exclusion applies whatever you are claiming for, and however, liability arises or might arise if it were not for this clause.
6.6. You expressly acknowledge that the provisions of this warranty are reasonable and that you are stopped from claiming the contrary at any future date in the event of any dispute with us.
6.7. Some states and provinces do not allow certain disclaimers, limitations and exclusions may not apply to you. This warranty gives you specific legal rights. You may have other rights or remedies pursuant to the laws of your state or province. Nothing in this limited warranty should be construed as limiting or restricting any other right or remedy available to you, except as allowed by the law in your state or province.
7.1. Either party may cancel a Contract if the other party has committed a material breach and fails to cure such breach within 30 days after notice thereof. Otherwise, this Contract is non-cancellable.
8. Force Majeure
8.1. We shall not be liable for any total or partial failure or delay in delivery resulting from circumstances beyond our reasonable control. Such circumstances include, without limitation: Unavoidable delays in production; delays by suppliers; shortages of raw materials; delays caused by you; strikes and labour unrest; shipping delays; delays in procuring any required import/export documentation; war; government intervention; fire; flood; accident; natural disaster; or any other event commonly referred to as an “Act of God”.
8.2. We shall use all reasonable endeavours to meet the delivery dates specified in the Contract. However, time is not of the essence of the Contract.
9.1. The Products comply with some building codes and/or other standards.
9.2. Please check our website for further information. It is your responsibility to ascertain whether the products need to comply with any other building code requirements, regulations, local ordinances or standards.
10. Personal Property Securities Act 2009
10.1. You grant a security interest in the Goods and the proceeds (as defined in the Personal Property Securities Act 2009 (‘PPSA’)) to secure the obligation to pay the purchase price of the Goods and other of your obligations to us under this agreement (together the “Indebtedness”). You warrant that the Goods are not purchased for personal, domestic or household purposes.
10.2. Where the Goods and/or proceeds are not readily identifiable and/or traceable or their recoverable value is insufficient to pay the Indebtedness, the security interest shall also extend to all the goods present and after acquired by the Customer, of which the Goods form part, to the extent required to secure the Indebtedness.
10.3. You waive any right to receive notice in relation to any registration or amendment to a registration on the Personal Property Security Register (‘PPSR’). At your own expense, you will provide all reasonable assistance and relevant information to enable us to register on the PPSR and generally to obtain, maintain, register and enforce the security interests created by this agreement.
10.4. Any payments received from you shall be deemed to be made and applied by us in the following order (unless we otherwise determine): (1) to any obligation owed by you which is unsecured, in the order in which the obligations were incurred; (2) to any obligations that are secured, but not by a purchase money security interest (‘PMSI’), in the order in which those obligations were incurred (3) to obligations that are secured by a PMSI, in the order in which those obligations were incurred.
10.5. Until you have paid all money owing to us, you must at all times ensure that (1) all Goods, while in your possession, can be readily identified and distinguished, and/or (2) all proceeds (in whatever form) that you receive from the sale of any of the Goods are readily identifiable and traceable.
10.6. Subject to other provisions of this agreement, if the Goods are held by you as inventory (as defined in the PPSA), then you may sell or lease the Goods in the ordinary course of business. Otherwise until you have paid all money owing to us you must not sell or grant a security interest in the Goods without our written consent.
10.7. To the extent permissible by law, you agree that the following provisions of the PPSA will not apply and you will have no rights under them: Section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notice to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142; section 143.
10.8. Section 115(7) of the PPSA allows for the contracting out of the provision of the PPSA, the following provisions of the PPSA will not apply and the Customer will not have any rights under them: section 127; section 129(2),(3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.
10.9. Unless otherwise agreed and to the extent permitted by the PPSA, the parties agree not to disclose any information of a kind referred to in section 275(1) of the PPSA to an interested person or any other person. You waive any right you may have, or but for this clause may have had, under section 275 (7)(c) of the PPSA to authorise the disclosure of the above information.
11. Governing Law
11.1. The laws of Victoria shall govern all Contracts between us.
11.2. The courts of Victoria shall have non-exclusive jurisdiction to decide any matter arising out of the Contract.