SEWING MACHINES AUSTRALIA PTY LTD TERMS OF TRADE
These Terms of Trade are an agreement between you and Sewing Machines Australia and apply to each supply of goods and/or services made by Sewing Machines Australia notwithstanding that this document is not reproduced with each supply.
1. APPLICABILITY AND ACCEPTANCE OF TERMS OF TRADE – (“THESE CONDITIONS”)
1.1 These Conditions apply to each order placed by a customer (you) for the supply of goods and/or services by Sewing Machines Australia ACN 115 795 198 (SMA) provided SMA has accepted that order.
1.2 Acceptance of delivery of any good, or the use of any service, by you will be deemed to be your acceptance of these Conditions, notwithstanding anything that may be stated to the contrary in your inquiries or on your order. These Conditions apply to each supply of goods and/or service made by SMA to you notwithstanding that this document is not reproduced with each supply.
1.3 Unless agreed to in writing by SMA, any qualification or variation to these Conditions contained in any document issued by you will be of no force or effect. No modification or alteration of any provision of these Conditions will be valid except in writing signed by you and SMA.
2. PRICES, CHARGES AND PAYMENT
2.1 Payment for the amount specified in any invoice rendered on you by SMA for your order must be made by you in full (unless otherwise agreed in writing).
2.2 Individual deliveries or deliveries of separate installments may be invoiced separately and must be paid for accordingly.
2.3 You will be required to pay for any cost of importing into Australia any product ordered by you and which is manufactured by someone other than SMA. The estimated importation cost will be included in the actual price for that product. In addition, SMA may charge you a fee for delivering that product, or any other product ordered by you, to your delivery address.
2.4 If you purchase goods which are manufactured by someone other than SMA, and SMA converts any price or charge from one currency to another in order to process your order, you agree that SMA has absolute discretion on the exchange rate actually used to make the conversion.
3.1. Dates given for delivery are stated in good faith but are not to be treated as a condition of the sale. Delivery will be deemed to be complete either when SMA delivers the goods (whether or not the goods are installed) or when the goods are dispatched to your delivery address through the post or other courier service.
3.2. Goods ordered by you will be delivered to the delivery address which you provide to SMA at the time you make your order, or such other address agreed to by SMA in writing.
4. UNFORESEEN CIRCUMSTANCES
4.1. SMA may cancel, suspend or delay delivery of any ordered goods or services in the event of any delay or non-performance due directly or indirectly to wars, terrorism, strikes, lockouts, delays or defaults of manufacturers or suppliers, act of God, or any other cause (whether similar or dissimilar) beyond SMA’s reasonable control.
5. RISK AND TITLE
5.1 It is expressly agreed and declared that the title of the subject goods does not pass to you until payment in full of the purchase price. You will in the meantime take possession of the goods and retain them as the fiduciary agent and bailee of SMA.
5.2 The risk in any goods ordered by you from SMA passes to you on delivery.
5.3 Until payment in full, SMA will be entitled to retake possession of the goods. To allow SMA to do that, you grant SMA an irrevocable right to enter, at any time, upon any premises or place where the goods are held, or thought to be held, and to remove the goods. SMA may then resell the goods and retain the proceeds of such sale. Any shortfall will be a debt owed by you.
6.1 If you default in performing your obligations under these Conditions and SMA incurs expenses in enforcing its rights under these Conditions (for example and without limitation, expenses incurred by SMA in recovering any moneys owed by you to SMA), you must pay those expenses to SMA on demand (including all legal costs on a full indemnity basis).
7. DISCLAIMER OF LIABILITY AND WARRANTIES – APPLICABLE TO SUPPLIES OF GOODS & SERVICES
7.1 The Trade Practices Act 1974 (Cth) and similar laws may confer rights and remedies on you in relation to the provision by SMA of goods or services ordered by you which cannot be excluded, restricted or modified (Non-excludable Rights). SMA does not exclude any Non-excludable Rights but does exclude all other conditions and warranties implied by custom, law or statute.
7.2 Except as provided for by the Non-excludable Rights:
(a) all goods and services ordered by you are provided without warranties of any kind, either express or implied, unless otherwise provided for in these Conditions; and
(b) SMA does not warrant that those goods and services will be complete or free from all errors.
7.3 Subject to clause 7.1, under no circumstances (including but not limited to any act or omission on the part of SMA) will SMA be liable for any loss or damages (including, without limitation, indirect, incidental, special or consequential or punitive damages and damages for loss of profits) whatsoever which result from any use, or any inability to use, SMA’s goods or services.
7.4 To the fullest extent permitted by law, SMA’s liability for breach of any implied warranty or condition which cannot be excluded is limited at the option of SMA to the supply of the goods or services ordered by you again or paying for their re-supply.
8. LIMITED WARRANTY FOR INDUSTRIAL SEWING MACHINES
8.1. This clause 8 only applies where SMA has been engaged by you to install a new and complete industrial sewing machine (“Industrial Machine”).
8.2. This limited warranty is provided by SMA to the original purchaser only of the new Industrial Machine sold by or for SMA. This warranty is void if the Industrial Machine is leased, sold or otherwise disposed of to a third party by you.
8.3. SMA agrees to make good any defects in the Industrial Machine by repairing the defects or at SMA’s option by replacement, within a period of three (3) calendar months after the goods have been delivered so long as:
(a) the Industrial Machine has not received maltreatment, inattention or interference; and
(b) SMA is promptly notified of the defect.
8.4. SMA agrees to make good any defects in the Industrial Machine by repairing the defects or at SMA’s option by replacement, within a period not exceeding twelve (12) calendar months after the goods have been delivered so long as:
(a) the defects have arisen solely from faulty materials and workmanship; and
(b) the goods have not received maltreatment, inattention or interference; and
(c) SMA is promptly notified of the defect.
8.5.If the Industrial Machine fails within the Warranty Period you must contact SMA immediately to arrange for the repair of the Industrial Machine. Where any works are conducted on the Industrial Machine by any party other than SMA, this warranty will be void and clause 8.6 will apply.
8.6 Where SMA must travel more than 30 kilometers from the Brisbane central business district to conduct the repairs, you must pay SMA’s travel expenses on an hourly basis or as otherwise indicated to you prior to the repairs being conducted.
8.7 Where the Industrial Machine has failed due to improper use of the Industrial Machine by an operator or by any works done to the Industrial Machine other than by SMA, SMA is entitled to charge a repair fee. (To avoid unnecessary repair fees being charged, SMA recommends that you telephone SMA to discuss any problems with the Industrial Machine prior to making a service booking.)
8.8 This limited warranty does not include maintenance kits (periodic or otherwise), accessories and consumable items, cleaning, normal wear and tear, damage caused by accident, neglect, misuse, improper operation, removal or re-installation of the Industrial Machine by any party other than SMA, acts of God, including but not limited to lightning, flood, earth quake, and fire, foreign matter entering the product such as liquid, moisture, insects or dirt or any damage caused by services, maintenance, modification or tampering by any party other than SMA, or where parts, consumable items or accessories have been used on the Industrial Machine which are not recommended by SMA or the manufacturer.
8.9 Operation of the Industrial Machine contrary to the Industrial Machine’s specifications or intended purpose will be deemed as improper use of the Industrial Machine and any necessary repairs will be at your cost.
8.10 Where any Industrial Machine must be transported to SMA, you are responsible for all transportation costs including packaging, postage and insurance costs and the transportation is at your risk. Any damage caused to the goods during transportation will not be covered by this limited warranty.
8.11 SMA will make all reasonable efforts to correct any faults in the goods. You are responsible for providing safe access to the goods and the site where the goods are located. You must be in attendance when the goods are being serviced or repaired by SMA.
8.12 SMA may charge you fees for cleaning the goods if necessary to properly service or repair the goods. SMA may also charge you fees for general servicing where SMA finds that the goods are not defective.
8.13 You are responsible for all costs associated with the relocation of the goods from their original position if required.
9. GOVERNING LAW
These Conditions will be governed by and construed according to the law of Queensland and the parties agree to submit to the jurisdiction of the courts and tribunals of that State.