Terms and conditions
GOVERNING TERMS AND CONDITIONS.
1. These terms apply to the sale of Equipment by Commercial Fridge & Freezer Sales Australia Pty Ltd a/t/f C & M Trust ABN 56 216 959 078 (“CF&FSA”) to the purchaser (“the Purchaser). These terms prevail over any terms in all other documents and represent the entire agreement between CF&FSA and the Purchaser. When the Purchaser places a request for Equipment with CF&FSA, accepts delivery of Equipment, makes any payment or complies with these terms, the Purchaser is taken to have accepted them.
2. CONSUMER RIGHTS.
Nothing in these Conditions must be read or applied so as to exclude, restrict or modify any condition, warranty, guarantee, right, remedy or consumer guarantee implied by law (including the Australian Consumer Law) which by law cannot be excluded, restricted or modified.
3. TERMS OF DELIVERY.
Any delivery time CF&FSA gives to the Purchaser is only an estimate. CF&FSA is not liable to the Purchaser for any loss or damage (including without limitation and consequential loss, economic loss and loss of profits) the Purchaser suffers or incurs as a result of late delivery by CF&FSA. The Purchaser must still accept the Equipment even if CF&FSA delivers late. The Purchaser must pay for its own electrical and plumbing connections, freights accommodation and the cost of any necessary alterations to its premises
(a) The delivery that is quoted from CF&FSA web shop is based on the delivery being conducted between 8am to 5pm Monday to Friday on business days.
(b) The location for the delivery must be on a flat and even surface. All deliveries will be to a kerb side or a loading dock, any other forms of delivery will incur additional charges.
(c) The responsibility to confirm point 2(b) is on the Purchaser. If a delivery truck has to be turned around due to 2(b) the Purchaser shall be responsible for all and any additional costs for both the delivery and or any modifications to the premises to make the delivery possible.
(d) The Purchaser must accept delivery of the Equipment within a reasonable period from the date payment is made and such reasonable period shall have a maximum of 3 months after the Equipment is ready for delivery.
(e) The Purchaser must advise CF&FSA of any damage to the goods, due to delivery or any other cause, within24 hours of delivery via Email (firstname.lastname@example.org) or Fax (1300 136 809)
(f) Warehouse stock may vary between states and may not be in stock at all times, some warehouses may not stock certain ranges.
(g) A delivery that is turned back and arranged for another day will incur the cost of the delivery again
Except as provided under the Guarantee of Performance in clause 5 and to the extent permitted by law, the Equipment is accepted without any warranty, condition, liability or representation concerning the Equipment and no action shall be maintained or is maintainable in respect of any damage alleged to have been sustained by the Purchaser by reason of any defect in the Equipment or its installation. CF&FSA shall not under any circumstances be liable for any loss or damage (including without limitation any consequential loss, economic loss and loss of profits) upon breach of any warranty express or implied and the Purchaser’s remedies are specifically limited to those appearing under the Guarantee of Performance in clause 5. Nothing in these conditions will exclude, modify or restrict the implied warranties set out in law and in the Australian Consumer Law.
The prices stated on the web-site are current prices and subject to change without notice. A purchase agreement may be cancelled by the CF&FSA at any time before delivery. The presentation of Equipment on the website is not to be construed as an offer to sell and no contractual relationship shall arise there from until CF&FSA accepts the Purchaser’s request even though uncommunicated to the Purchaser. Surcharges may apply on some brands. Additional freight charges may also apply to certain delivery locations.
6. GUARANTEE OF PERFORMANCE.
Upon acceptance of this offer CF&FSA will be deemed to have guaranteed for a period of (as shown on the invoice) from the date hereof at CF&FSA’s option to replace or repair at CF&FSA’s address at which the Equipment is usually warehoused by CF&FSA’s suppliers any part or parts of the Equipment which shall be proved to CF&FSA’s satisfaction to have been faulty or defective either in material or workmanship.
PROVIDED THAT the Purchaser shall not be entitled to any such repair, replacement and/or service which CF&FSA in its absolute discretion shall determine became necessary due to fair wear and tear only nor to any repair, replacement or service which CF&FSA in its absolute discretion determines to have been rendered necessary through any negligence or want of care in the control or use by the Purchaser of the said Equipment or any part thereof AND PROVIDED FURTHER THAT the above guarantee of performance and/or service shall cease to have any effect in the event of the Equipment being repaired or any other parts thereof being replaced or adjusted by any person other than CF&FSA’s or the Manufacturer’s authorised representatives. The Purchaser AGREES that the Equipment will be used only for the purpose for which it is ordinarily supplied. The Purchaser further AGREES that CF&FSA shall not be liable, to the extent permitted by law, for any loss (including without limitation any consequential loss, economic loss and loss of profits) arising from use of the Equipment which is not authorised by CF&FSA.
CF&FSA’s liability by reason of the Equipment or any part thereof being faulty or defective at any time or on any other account whatsoever shall be limited to (at CF&FSA’s option) the repair, replacement and/or service hereinbefore provided and shall not include liability for any loss (including consequential loss, economic loss or loss of profits) sustained by the Purchaser by reason of any fault or defect except where such liability cannot be excluded by law. The Purchaser AGREES to pay CF&FSA, in addition to the cost of any part or parts so replaced and compensation for the loss of time occupied by CF&FSA’s representatives in travelling to and from CF&FSA’s said address to the place where the Equipment is so inspected and/or repaired, the reasonable travelling and accommodation expenses incurred by CF&FSA’s servants or agents in and about the journey so undertaken at the Purchaser’s request.
PROVIDED HOWEVER THAT in the event of CF&FSA deciding that all such repairs and/or replacements fall within the terms of this Guarantee of Performance and service hereinbefore contained then and in any such event such repair and/or replacements shall be effected free or charges to the Purchaser absolutely.
The Purchaser indemnifies CF&FSA for all liabilities, losses, damages, costs or expenses (including without limitation any consequential loss, economic loss and loss of profits) directly or indirectly suffered or incurred by CF&FSA or contributed to by any of the following:
(a) compliance by CF&FSA with any instruction from the Purchases regarding the Equipment;
(b) loss, including any product liability claims, arising from any use of the Equipment which is not authorised by CF&FSA;
(c) failure by the Purchaser to: (i) adequately provided or display safety information on or relating to the Equipment (ii) comply with the laws relating to the use, sale, marketing, labelling or marking of Equipment; (iii) take any reasonable precaution to bring to the attention of any potential users of the Equipment any dangers associated with the Equipment; (iv) detect and bring to CF&FSA’s attention matters for which CF&FSA may become liable whether for negligence, under any part of the Australian Consumer Law or otherwise;
(d) any statement that the Purchaser makes about the Equipment without CF&FSA’s written approval;
(e) negligent use of Equipment by the Purchaser or a third party; negligence or breach of this document by the Purchaser; and any negligent or faulty repair or replacement of the Equipment or parts of the Equipment which is conducted by any person other than CF&FSA or the manufacturer’s authorised representative.
All Equipment and services are to be paid for in full before they are shipped from a CF&FSA supplier warehouse or provided without prior agreement in writing between the purchaser and CF&FSA.
(a) the Purchaser acknowledges and agrees that payments made by credit card will incur a surcharge equal to 2.5% of the total amount payable to CF&FSA (including GST) for MasterCard and Visa payments should CF&FSA choose to charge it to the customer invoice.
(b) the Purchaser acknowledges and agrees that payments made by PayPal will incur a surcharge equal to 2.5% of the total amount payable to CF&FSA (including GST if applicable)
(c) EFT payments direct to CF&FSA bank account will not incur a surcharge.
In the event that the Purchaser defaults in any payment due to CF&FSA and such default continues for a period of seven (7) days after notice is issued by CF&FSA to the Purchaser in writing requiring the Purchaser to rectify such default, CF&FSA may in its sole discretion, and without prejudice to any other right or remedies available to it, suspend delivery of goods hereunder and, where it still retains title to the Equipment hereunder, retake possession of them.
Should the Purchaser countermand this request or neglect or refuse to accept delivery of the Equipment, the Purchaser AGREES to forfeit all monies already paid hereunder, not as a penalty but as a genuine pre-estimate of the damages sustained by CF&FSA in the procurement or manufacture of the Equipment. Should the Purchaser countermand this request or neglect to accept delivery prior to payment of any monies to CF&FSA, the Purchaser AGREES to pay CF&FSA an amount of 20% of the total purchase price specified in such agreement.
PROVIDED THAT CF&FSA will not accept the return of non-standard Equipment or Equipment designed to Purchasers specifications.
Unless stated otherwise, the prices quoted are GST exclusive. In addition to the price for the Equipment payable by the Purchaser, the Purchaser must pay CF&FSA an amount equal to any GST that CF&FSA are liable for on any supply by CF&FSA under this document. The Purchaser must pay amounts for GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Purchaser pay the price (or the first part of it if the parties agree payment by instalments).
11. TITLE TO EQUIPMENT/PRODUCTS.
CF&FSA remains the sole and absolute owner of the Equipment and products until the whole of the purchase price and transport and other charges have been paid in full. Equipment will not leave a CF&FSA supplier’s warehouse until payment is made for the Equipment and the expected delivery charges and funds are cleared. Subject to full payment being received, when the purchased Equipment leaves a CF&FSA supplier’s warehouse the Equipment are deemed to be the Purchaser’s Equipment and always at the Purchaser’s risk. CF&FSA will endeavour to deliver the item or items to the customer’s premises as per the details supplied by the customer. The delivery charged is based on information provided as part of the purchase process and the Purchaser must pay CF&FSA any unforeseen delivery, unloading and reloading costs and expenses that are reasonably incurred in the delivery of the Equipment. If CF&FSA has not been paid the full amount owing in respect to CF&FSA Equipment within seven (7) days of being incurred, its right of possession to reclaim its Equipment and products will commence when: the time of payment expires.
13. PROMOTIONAL MATERIAL
Photographs, drawings, illustrations, specifications and any other particulars accompanying or associated with either a web-site listing or any catalogue, price list or advertising material provided by CF&FSA represent generally the Equipment described therein but do not form part of the agreement and CF&FSA accepts no responsibility as to the accuracy thereof nor will CF&FSA be liable for any consequential loss or damage caused by such misinformation or otherwise and the Purchaser must inform themselves of the suitability of the Equipment for their purpose.
Unless agreed to the contrary in writing, CF&FSA reserves the right to supply Equipment and services with the same properties and capacities as the Equipment in substitution for the Equipment.
No provision hereof and no breach of any provision shall be deemed waived by reason of any previous waiver of any breach hereof.
16. GOVERNING LAW.
These terms and conditions are governed by the law in force in the state of Victoria. CF&FSA and the Purchaser both submit to the non- exclusive jurisdiction of the courts of Victoria and any courts which may hear appeals form those courts.
Dated: 1st of December 2015. Rev 6