(1) These Conditions shall apply to all contracts of sale between IMO Pacific Pty Ltd ("IMO") and the Buyer.
(2) The terms of the Contract shall consist of the particulars overleaf and these Conditions of Sale. Any term overleaf which is at variance with these Conditions shall prevail over these Conditions, which shall be construed accordingly, except with regard to price in respect of which condition 5(2) shall prevail.
(3) No other terms (whether contained in the document issued by the Buyer or in any written or oral communication between the parties) shall apply to the Contract nor shall these Conditions or the particulars overleaf be modified without IMO's written agreement. IMO shall be entitled to amend technical specifications of the Goods without notice.
(4) In order that these Conditions and the particulars overleaf shall be a complete record of the agreement between the parties with regard to the sale of the Goods, the Buyer must ensure that any pre-contractual representation on which the Buyer wishes to rely has been specified in the particulars overleaf. In entering into the Contract, the Buyer does not rely upon any such representation made by or on behalf of the Company which has not been so specified.
(1) Unless accepted before lapse or withdrawal, or renewed in writing by IMO, quotations shall lapse automatically after 30 days, but may be withdrawn earlier.
(2) Quotations are for information only and are not firm offers. There shall be no binding contract until IMO has accepted the Buyer's order by despatching IMO's official Acknowledgement of Order or Invoice.
(1) Although IMO will endeavour to deliver the Goods within any delivery time specified overleaf, that time is an estimate and not a term of the Contract.
(2) Any such time specified shall be extended by any period or periods during which the manufacture or delivery of the Goods or other work by IMO in connection with the Contract is delayed due to fire, explosion, flood, storm, tempest, sabotage, strikes (official and unofficial), riot, invasion, acts of war, shortage of labour, power or materials, civil commotion, accidents, plant breakdowns, compliance with an order of an apparently competent authority, and any other event beyond IMO's control.
(3) If any such delivery time is so extended by more than 90 days then the Buyer shall be entitled to give written notice to IMO requiring the Goods to be delivered within 30 days of the date of such notice failing which the Buyer shall have the right to give further written notice determining the contract forthwith.
(4) IMO shall be entitled to deliver the Goods by instalments.
(5) In the case of Australian customers, unless otherwise stated, IMO will deliver to the Buyer's premises and will charge separately for packing and carriage. In the case of exports, unless otherwise stated delivery will be ex-works, but IMO will arrange sea carriage with a shipper nominated by the Buyer and carriage to the port of export on behalf of the Buyer and all carriage will be charged forward for direct payment by the Buyer.
(6) The delivery by IMO of a greater or lesser quantity of the Goods than the quantity provided for in the Contract, the delivery of other goods not provided for in the Contract, or the delivery of Goods only some of which are defective, shall not entitle the Buyer to reject all of the Goods delivered. In order that IMO can comply with its carriers conditions, a claim in respect of error in quantity or type of Goods or in respect of the condition of the Goods delivered must be made in writing to IMO and the carrier notified within 3 days of receipt. Failure to make such claim shall constitute unqualified acceptance of the Goods and waiver by the Buyer of all claims relating to error in quantity or type of Goods delivered or relating to the condition of Goods delivered. Similarly, if any Goods invoiced by IMO are not delivered, the Buyer must notify IMO within 25 days or the carrier and IMO within 28 days of the date of invoice, failing which the Buyer will be liable to pay for the Goods in full.
(1) The risk in the Goods shall pass to the Buyer upon delivery.
(2) The property in the Goods shall pass to the Buyer upon payment of all sums owing to IMO under the Contract. In the event of the Buyer failing to pay any part of the Contract price when it becomes due, IMO shall be entitled to recover possession of the Goods at any time thereafter and shall for that purpose be entitled to enter into any premises where the Goods may be situated. The Buyer shall execute all such documents and give IMO all such assistance as it may require in order to register IMO's interest in the Goods in the Buyer's country or which might otherwise be necessary in order to preserve and protect IMO's interest in the Goods. Notwithstanding the above IMO shall be entitled at any time to pass the property in the goods to the Buyer by written notice to that effect.
(1) Unless otherwise stated overleaf, prices for the goods shall be ex-works, and shall be exclusive of GST, may be subject to export duty and foreign import duty, packing, carriage, insurance and any other costs, all of which shall be the subject of additional charges.
(2) Prices stated in any quotation or in IMO's Acknowledgment of Order are provisional only and subject to adjustment to take account of increases in IMO's costs and overheads. The contract price shall be IMO's price ruling at the date of despatch.
(1) If IMO has granted the Buyer monthly account credit facilities, then payment of the price must be made within 30 days of the date of invoice. Otherwise payment must be in cash prior to delivery. Payment shall be made direct to IMO in the currency invoiced. The Buyer shall not be entitled to exercise any right of set-off against payment due to IMO.
(2) IMO shall be entitled to charge daily interest on any overdue sum at the rate of 5 per cent per annum above the base lending rate for the time being of Australia and New Zealand Banking Group Limited (ANZ) from the due date until the date of actual payment.
(1) IF UNDER PROPER USE THE GOODS DEVELOP ANY DEFECT DURING THE WARRANTY PERIOD DUE TO DEFECTIVE ARTICLES OR MATERIALS SUPPLIED OR WORK CARRIED OUT BY IMO (OTHER THAN MATERIALS ORDERED, PROVIDED OR SPECIFIED, OR WORK CARRIED OUT TO THE SPECIFICATION OF THE BUYER OR HIS AGENT) IMO SHALL AT ITS OWN EXPENSE REPLACE OR REPAIR SUCH GOODS AS ARE DEFECTIVE SO AS TO REMEDY THE DEFECTS EXCEPT WHERE SUCH DEFECTS ARE ATTRIBUTABLE TO ACCIDENT, FAIR WEAR AND TEAR, OR ANY ACTION OMISSION OR NEGLECT OF THE BUYER OR OF ITS AGENTS. THE BUYER MUST GIVE IMO NOTICE OF ANY ALLEGED DEFECT AS SOON AS IT BECOMES APPARENT, AND SHALL (UNLESS OTHERWISE INSTRUCTED BY IMO) RETAIN THE GOODS AT THE BUYER'S PREMISES FOR INSPECTION BY IMO AND GIVE IMO ADEQUATE FACILITIES TO INVESTIGATE THE COMPLAINT AT THE BUYER'S PREMISES. THE "WARRANTY PERIOD" SHALL MEAN THE PERIOD SPECIFIED OVERLEAF AS THE WARRANTY PERIOD AND IF NO SUCH PERIOD IS SPECIFIED, THEN A PERIOD OF 12 MONTHS FROM THE DATE OF DELIVERY.
(2) EXCEPT AS EXPRESSLY STATED ABOVE, THERE SHALL BE EXCLUDED FROM THE CONTRACT ANY WARRANTY, CONDITION OR STATEMENT, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO QUALITY, MERCHANTABILITY, OR FITNESS OF THE GOODS FOR ANY PARTICULAR PURPOSE.
(3) IMO SHALL NOT BE LIABLE IN ANY EVENT WHATSOEVER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF THE USE OF THE GOODS AT ANY TIME OR HOWSOEVER CAUSED BY THE GOODS.
In the event of the buyer becoming (or appearing to IMO to become) bankrupt or going (or appearing to IMO to be about to go) into liquidation, suspending payment of debts or making any arrangement with creditors, or failing to pay in accordance with the terms of the Contract or being in breach of any other term of the Contract IMO shall be entitled, without prejudice to its other rights, to postpone delivery or manufacture, (both in respect of the Contract in question and any other contracts with the Buyer) until such payment has been made or other breach rectified and/or (at its option) to determine the Contract (and/or any other such contracts) and to recover payment for all deliveries already made and for the cost of materials and labour already expended for the purpose of future deliveries (less any allowance of the value thereof as utilised by IMO for other purposes) and also to recover from the Buyer a sum equivalent to IMO's loss of profit arising out of such determination. The exercise of IMO's option to postpone delivery or manufacture shall not prevent the subsequent exercise of IMO's option to determine the Contract and/or any other such contracts.
The Contract may be cancelled by the Buyer only with IMO's written consent. In the event of such cancellation the Buyer shall pay to IMO a cancellation charge, commensurate with IMO's costs incurred up to the date of cancellation plus IMO's loss of profit.
The proper law of the Contract shall be Australia law and shall except where otherwise herein provided be dealt with by the Courts Western Australia, save that IMO shall be entitled to bring proceedings against the Buyer in the Courts of the Jurisdiction where the Buyer resides or carries on business.