Below are the Terms and Conditions of Quotation, Sale & Repair of John Morris Scientific Pty Limited. By accepting goods or services from John Morris Scientific Pty Limited, the Purchaser acknowledges and agrees that they are entering into a contract for the supply of goods or services, other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption, and consequentially liability in John Morris Scientific Pty Limited, for any breach of any Australian Consumer Law guarantee is limited in accordance with clause 24(c) and 24 (d), below.
1. DEFINITIONS AND INTERPRETATION
In these Terms and Conditions, unless the context otherwise requires:
Australian Consumer Law means the law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
Company means John Morris Scientific Pty Limited.
Consumer Contract means a contract for the acquisition of Goods or Services as a ‘consumer’ as that term is defined
in Section 3 of Australian Consumer Law.
Goods means the goods described in the Quotation or Sales Invoice to be provided to the Purchaser by the
Company.
Order Confirmation means formal written acknowledgement by the Company of the Purchaser’s order.
Principal means any manufacturer or supplier of the Goods.
Purchaser means the person or legal entity identified in the Quotation or Sales Invoice.
Quotation means a form of quotation or tender submitted by the Company to the Purchaser in which these Terms
and Conditions are deemed to be incorporated.
Sales Invoice means the sales invoice issued by the Company to the Purchaser in which these Terms and Conditions
are or are deemed to be incorporated.
Price means the price for the Goods and /or Services set out in the Quotation or Sales Invoice.
2. GENERAL
(a) These Terms and Conditions, and those imposed by Australian Consumer Law which cannot be excluded, are the only conditions which are binding on the Company in the Quotation, sale of Goods and provision of Services by the Company, and all other terms and conditions are hereby excluded;
(b) These Terms and Conditions shall prevail over any other terms and conditions specified in a Quotation, Sales Invoice, Order Confirmation or the Purchaser’s acceptance documents unless expressly agreed in writing by a director of the Company;
(c) Any order (either verbal or written), acceptance of delivery or payment for Goods and/or Services by the Purchaser will be deemed as acceptance by the Purchaser of these Terms and Conditions;
(d) The Purchaser acknowledges that they have relied solely upon their own inspection, skill and judgement and not by reason or any representation by the Company in executing their decision to accept an offer for any Goods or Services from the Company;
(e) The Company reserves the right to vary their Terms and Conditions at any time with prior written notice to the Purchaser.
3. QUOTATIONS
(a) Quotations are valid for 30 days unless otherwise stated;
(b) All orders are subject to acceptance by the Company in writing as evidenced by an Order Confirmation. All quotations are subject to withdrawal or variation by the Company at any time prior to Order Confirmation.
(c) All Quotations are confidential and exist for the information of the Purchaser only. The Purchaser agrees to ensure Quotations received by the Purchaser will not be disclosed to third parties without prior written consent by the Company and will remain Commercial in Confidence.
4. LITERATURE AND DOCUMENTATION
Illustrative and descriptive text, photos or literature supplied by the Company to the Purchaser are for illustrative purposes only and, to the extent permissible under the Australian Consumer Law, shall not be deemed to be and shall not constitute any representation or warranty of any kind relating the Goods and/or Service to be provided.
5. PRICES
(a) All prices are net unless otherwise stated;
(b) Prices quoted are subject to the addition of Goods And Services Tax (GST) and to any tax or levy imposed by any government authority upon the Goods/Services quoted or upon the production, sale, distribution, delivery or any other applicable feature. All such taxes shall be payable by the Purchaser and may be added to the Price by the Company;
(c) Should the Purchaser be exempt from GST for export purposes the Purchaser must furnish the appropriate Australian Taxation Office documentation at the time of order or GST will be charged.
(d) The Purchaser will bear all applicable charges for freight, insurance premiums, levies, customs duties, and any importation costs relating to the Goods and/or any parts for Service where required. The Company will include in the Quotation, an estimate of such charges known to the Company at that time. In the event of any increase in these charges or in the price of the Goods and/or parts for Service quoted to the Company by the Principal before Order Confirmation and/or prior to the dispatch of the Goods to the Purchaser, then the Company will advise the Purchaser of such increase in Price and the Purchaser must pay all additional costs. In the event of any decrease in such rates or the Principal’s price, the Company will deduct this amount from the Price payable by the Purchaser;
(e) Should duty free prices be requested and quoted by the Company the Purchaser must provide the Company with the necessary documentation to enable the Goods ordered to be brought into Australia duty free. The Company will not honour requests for duty free quotations below the value of $2,500 (inclusive GST).
6. CURRENCY FLUCTUATION
(a) Indent items from overseas may be subject to alteration in price because of variation in currency rates between the Principal’s currency and the Australian dollar at the date of the Sales Invoice.
(b) Goods originating from Principals trading in currencies other than EURO or USD such as JPY or GBP or where the value is higher than $10,000 (including GST) shall follow the Currency Fluctuation calculation formula displayed below unless otherwise agreed in writing by a Director of the Company.
Quoted Exchange Rate x Quoted Price
Exchange Rate at Date of Sales Invoice
7. TERMS OF PAYMENT
(a) Where credit terms have been agreed, all accounts must be paid in full not later than 14 days from date of Sales invoice.
(b) Where credit terms have not been agreed upon, the Company will require prepayment with the order.
(c) For orders in excess of $50,000 AUD the Company requires a level of prepayment to accept the order. As a guide we normally require 40% of the purchase price upon placement of order, 40% prior to shipment of the order and 20% upon installation completion. Terms of Payment may be varied at the discretion of the Company and will be outlined on the quotation.
(d) Time for payment is of the essence. In the event of non-compliance with the Company’s payment terms, the Company reserves the right to suspend deliveries and / or cancel contracts and/or apply a service fee at the rate of 2.5% per month on all outstanding monies from the due date and /or void warranty.
(e) If Goods are not paid for in full within 3 months from date of Sales Invoice, the Company may demand the Purchaser deliver up the Goods to the Company or if the Purchaser fails to do so, the Company may retake possession of the Goods (and for that purpose the Purchaser authorises the Company and its employees and agent to enter the Purchaser’s premises and remove the Goods without notice). The cost of retaking possession of the Goods shall constitute additional charges payable by the Purchaser to the Company. This right is without prejudice to any other remedy which may be available to the Company.
8. MINIMUM ORDER VALUE
Orders below the net value of $100.00 (inclusive of GST) may incur a $25.00 processing charge payable by the Purchaser.
9. CANCELLATION
(a) Orders placed may be cancelled by the Purchaser in full or part only prior to dispatch to the Purchaser and with the Company’s prior written consent. The Purchaser must pay any cancellation fee as reasonably charged by the Company.
(b) The filing a petition of bankruptcy or commencement of any legal action for insolvency, or creditor’s petition for winding-up of the Purchaser’s company shall be deemed a cancellation by the Purchaser.
(c) Should pre-payment be required for Goods or Services the Purchaser acknowledges the Company’s right to cancel the order for Goods or Services if pre-payment is not received within 1 month of written request for payment.
10. LIENS
In addition to any lien to which the Company may be entitled by statute or common law the Company shall, in the event of the Purchaser’s insolvency, bankruptcy or winding up, be thereupon entitled to a general lien on all property whatsoever owned by the Purchaser but in the Company’s possession at the time, such lien to cover the unpaid price of any Goods sold by the Company to the Purchaser.
11. GOOD EX STOCK
Goods quoted ex stock are subject to prior sale by the Company unless otherwise stated in the Quotation.
12. DISPATCH, TITLE & RISK
(a) Unless otherwise specified by the Company the point of delivery of the Goods shall be at the Purchaser’s premises.
(b) Goods delivered elsewhere at the Purchaser’s request, shall be at the Purchaser’s risk immediately from dispatch to such premises. The Purchaser will indemnify the Company against any claim or liability, damage or injury to or by the Goods after dispatch and shall specify in writing on his official order if insurance is to be taken out on his behalf and at his cost. This provision will apply notwithstanding the fact that the Company has agreed to install the Goods at the premises nominated by the Purchaser.
(c) Title to the Goods shall not pass to the Purchaser until the Goods are paid for in full. The risk in all Goods shall pass to the Purchaser upon dispatch of the Goods from the Company.
(d) The Purchaser accepts that partial deliveries of Goods from the Company are acceptable.
13. AVAILABILITY OF GOODS & DELIVERY TIMES
(a) The Company shall have no direct or indirect liability for delay in delivery.
(b) The delivery time for Goods quoted on an indent basis is an estimate only and is based upon the Company’s knowledge of conditions prevailing at the time the quotation is made. The delivery time is subject to variation in accordance with the Principal’s manufacturing program and the availability of shipping space from the source of supply and also to any delay through Act of God, labour disputes, strikes, lockouts, fire, accident, non-delivery of parts by other manufacturers or any other causes or contingencies beyond the Company’s control and/or the control of the Principals.
(c) The Company does not accept orders under penalty for late delivery and the Purchaser agrees to waive any and all penalties for late delivery where they may apply.
14. INSPECTION & ACCEPTANCE OF GOODS
(a) The Purchaser shall inspect the Goods immediately upon delivery for damaged, missing, defective or incorrect supply and shall within 7 days from delivery give notice in writing to the Company of any matter or thing by reason which the Purchaser alleges is not in accordance with the Purchaser’s order.
(b) If the Purchaser fails to give such notice the Goods shall be deemed to be in all respects in accordance with the order and the Purchaser shall be deemed to have accepted the Goods and pay for the same accordingly.
(c) The Purchaser agrees not to withhold and will not be entitled to withhold payment of all or any of the Price whilst any claim is being investigated by the Company.
15. INSTALLATIONS AND COMMISSIONING
(a) Installing and/or commissioning will only be carried out by the Company where a Quotation for this service has been accepted by the Purchaser.
(b) In the case of Goods which the Company or the Principal undertakes to install, the Purchaser must provide all service utilities required, e.g. electric power outlets, water outlets, drains, compressed air lines, etc.
(c) The Purchaser must also bear the cost of hire or use, and all associated charges of any special handling equipment required, (for instance heavy lifting gear) for movement of equipment at the installation site, as well as the cost of any required alterations to the Purchaser’s infrastructure or premises to position or transit the Goods to their final destination.
(d) Installation will be made at the time of delivery or as soon as practicable thereafter and any special handling equipment will be at the Purchaser’s risk.
(e) Unless otherwise agreed the Company’s responsibility to install such Goods may cease if the installation is deferred by the Purchaser for a period of 3 months or more beyond the delivery date. Any requests for storage of Goods by the Purchaser will be limited to 3 months whereupon commercial storage fees may be charged. Goods held/stored on request of the Purchaser by the Company will be at the Purchasers sole risk.
16. RETURN OF GOODS
Returns will be accepted on the following basis:
(a) Returns may only be made with prior written consent of the company. Authorised returns must be made within 7 days from the date of the Sales Invoice, and all Goods must be in saleable condition. Freight costs on goods being returned to the Company must be paid by the Purchaser. A 20% restocking fee may be charged for any Goods returned under this provision.
(b) For any valid return, the Company may at its option, replace the Goods with an identical or substantially similar product or offer a credit less any re-stocking fee/s to be used against future purchases from the Company.
(c) Packaging: Where goods were originally supplied in a special Principal’s carton, any return shall be made in that original carton including all packaging materials in a condition no worse than that delivered to the Purchaser and the Goods shall be in their original and unmarked condition, complete with any instruction sheets or supplied documentation.
(d) The following goods cannot be returned for credit under any conditions-
(i.) Goods specially made to order, including items cut to length.
(ii.) Goods altered or damaged by the Purchaser.
(iii.) Goods having a Sales Invoice value of $50.00 or less.
(iv.) Goods especially indented and which are not normal stock lines.
(v.) Goods no longer in original packaging, with original accessories or in a condition below that supplied.
17. SERVICE CONTRACTS
(a) Where a Quotation for Services specifies a fixed period of time during which such Services will be provided, either party may cancel such Quotation before the expiry of the fixed period by giving at least 60 days written notice. Such termination will be effective 60 days after receipt of such notice, or at such later date if specified in the notice ("Termination Date"). The Company will cease performance of the relevant Services on the Termination Date or on such earlier date if specified by the Purchaser in writing ("Cessation Date").
(b) Upon termination the Company will calculate, in its reasonable opinion, and the Purchaser agrees to pay the total price of Services actually performed and expenses actually and reasonably incurred in providing the relevant Services up to the date the services cease (Cessation Date).
(c) The Purchaser's total payment obligation to the Company will equal whichever is greater of:
(i) The amount calculated by the Company; or
(ii) The pro-rated price of providing the Services up to the Cessation Date.
18. MINOR MODIFICATION
The Company may need to undertake minor modifications (e.g. power leads, plugs, fuse holders, etc.) but the Company will not interfere with any function of the Goods that may jeopardise the Principals warranty. Purchasers who wish to make further modifications without jeopardising the Principals warranty must obtain prior written permission from the Company.
19. INTELLECTUAL PROPERTY IN GOODS
The Purchaser will protect and indemnify the Company or other parties against all claims for damages or profits arising from infringements of patents, intellectual property, designs, copyrights or trade-marks, with respect to any Goods supplied either in whole or part to the Purchasers specifications.
20. WAIVERS
No failure or delay by the Company in exercising any power or right under these Terms and Conditions shall operate as a waiver of any rights of the Company or preclude the Company from exercising any further right or power.
21. LAWS
These Terms and Conditions and any contract constituted by the acceptance by the Company of the Purchaser’s order or by the Purchaser’s acceptance of the Company’s tender/quotation shall be construed to be in accordance with the laws of the State of New South Wales. The Purchaser and the Company Submit to the Jurisdiction of the Courts of the State of New South Wales.
22. ASSIGNMENT
The Purchaser shall not assign the contract or any rights and obligations under these Terms and Conditions without the written consent of the Company.
23. VALIDITY
If any provision of these Terms and Conditions is held by any relevant authority to be invalid or unenforceable, the remainder of these Terms and Conditions shall be read as if that provision has been severed.
24. WARRANTIES
IF THESE TERMS AND CONDITIONS RELATE TO AN ACQUISITION BY A CONSUMER AS DEFINED IN THE AUSTRALIAN CONSUMER LAW, THEN NOTWITHSTANDING ANYTHING ELSE IN THIS DOCUMENT:
(a) Our Goods and Services come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the Goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
(b) The guarantees with respect to goods generally include:
(i) The Goods are of acceptable quality
(ii) The Goods are fit for any specified purpose
(iii) The Goods match any description we might have used
(iv) The Goods match any sample demonstration model we may have shown to you
(v) We can provide good title to the Goods
(vi) We can provide you with undisturbed possession of the Goods
(vii) There are no undisclosed securities on the Goods
(viii) The guarantees with respect to services generally include:
The services will be rendered with due care and skill
The services will be reasonably fit for the purpose indicated by the purchaser
The services will be provided within a reasonable time or as otherwise specified
(c) A CAP ON LIABILITY – NO CONSEQUENTIAL LOSS – GOODS
This sale relates to the acquisition of goods other than Goods of a kind ordinarily acquired for personal domestic
or household use or consumption, and the Purchaser acknowledges and agrees that liability under the Australian
Consumer Law with respect to any breach of the guarantees by John Morris Scientific Pty Limited is limited to
liability to one or more of the following:
(i) The replacement of the Goods or the supply of equivalent goods
(ii) The repair of the Goods
(iii) The payment of the cost of replacing the Goods or acquiring equivalent Goods
(iv) The payment of the cost of having the Goods repaired.
(d) A CAP ON LIABILITY – NO CONSEQUENTIAL LOSS – SERVICES
This sale relates to the acquisition of services other than Services ordinarily acquired for personal domestic or household use or consumption, and the Purchaser acknowledges and agrees that liability under the Australian Consumer Law with respect to any breach of the guarantees by John Morris Scientific Pty Limited is limited to liability to one or more of the following:
(i) The supplying of the Services again, or
(ii) The payment of the cost of having the Services supplied again
25. ADDITIONAL WARRANTY - WARRANTY AGAINST DEFECTS
(a) In addition to the guarantees provided under the Australian Consumer Law, if they apply to this transaction, John Morris Scientific Pty Limited provides a further Warranty Against Defects set out below in accordance with Regulation 90 of the Competition and Consumer Regulations.
(b) In addition to any rights the Purchaser may have under the Australian Consumer Law and subject to this clause the Company warrants that Goods it supplies (except fragile or consumable goods) will be free from defects in material and workmanship for a period of 12 months from the date of despatch.
(c) DETAILS OF AND LIMITATIONS IN THE SCOPE OF THE ADDITIONAL WARRANTY AGAINST DEFECTS
1. This Warranty Against Defects is provided by John Morris Scientific Pty Limited
2.The business address for John Morris Scientific Pty Limited is 61 - 63 Victoria Avenue Chatswood NSW 2067
AUSTRALIA;
3. The telephone number for John Morris Scientific Pty Limited is 1300 501 555;
4. The e-mail address for John Morris Scientific Pty Limited is info@johnmorrisgroup.com.
5.You may only claim this warranty in the event that the defect appears within 1 Year of the date it was supplied
to the Purchaser from John Morris Scientific Pty Limited;
6. The procedure to claim under this warranty against defects is as follows:
(i) Any warranty claim by the Purchaser under this Warranty Against Defects must be in writing, contain full particulars, and be submitted to the Company within 15 days of when the cause of the claim first came to the Purchaser's attention, together with proof of purchase;
(ii) Goods must be held intact by the Purchaser and made available for inspection by the Company;
(iii) The Warranty Against Defects is a “Return-to-Base” warranty and the Goods must be returned to one of the Company’s Service Departments freight prepaid. Should the Purchaser require the Company’s engineer to inspect the Goods at their premises, then the Purchaser agrees to pay the cost of the
Company’s engineers travel time and expenses
7. The address to which the Goods having a warranty claim must be sent is: John Morris Scientific Pty Limited; 61- 63 Victoria Avenue Chatswood NSW 2067;
8. The expense of claiming the warranty must be borne by the Purchaser;
9.The benefits to the Purchaser under this warranty are in addition to the rights and remedies available to the Purchaser under the law.
(d) CONDITIONS ON THE AVAILABILITY OF THIS WARRANTY AGAINST DEFECTS
1. This warranty against defects only operates in the event that such Goods are installed by the Company and maintained and operated strictly in accordance with instructions provided by the Principal and/or Company from time to time.
2. For the purposes of the Warranty Against Defects, fragile and consumable goods are defined to include but are not limited to electronic tubes and components, illumination sources, items wholly or partly of glass, silica or ceramic material, thermocouples, batteries, or components considered to be consumable/wear components, electrical elements and reconditioned replacement parts, such as exchange circuit boards.
3. Subject to any guarantees implied by statute, the decision to repair or replace any parts of the Goods or offer a credit under the Warranty Against Defects will be made by the Company on the basis of which approach will provide the Purchaser with the best service. Refurbished parts may be used to repair the Goods.
4. Only the Company or the Company’s authorized representatives are permitted to undertake repairs to Goods under the Warranty Against Defects, any attempt to repair Goods by a non-authorized representative of the Company will void any Warranty obligations of the Company under the Warranty Against Defects.
5. The Warranty Against Defects includes a warranty with respect to repairs/service carried out by the Company or by the Principal but this warranty is limited to three months from the date of the repair or service, and is applicable to the repair work done and not to any subsequent failure of unrelated parts and/or software.
6. Apart from this Warranty Against Defects and the guarantees implied by statute which are incapable of exclusion, restriction or modification, the Company makes no warranties in respect of the Goods or Services provided or anything else.
7. In addition to any rights the Purchaser may have under the Australian Consumer Law, where an extended warranty is offered and purchased, the above clauses will apply to this extended warranty period. Where a Principal offers more than 12 months warranty on Goods this Warranty Against Defects is for parts only and does not include any labour component provided by the Company.
(e) EXCLUSIONS & LIMITATIONS ON WARRANTY AGAINST DEFECTS
The Company will not be liable for any defects, damage, fault, or malfunction in the Goods under the Warranty Against Defects which are the result of:
1. Normal wear and tear;
2. Accidents, improper use, abuse or mismanagement of the Goods by the Purchaser or their associates;
3.Operation of the Goods other than in accordance with the operating manual supplied by the Company or its Principals;
4. Use of the Goods with parts or reagents which have not been approved by the Company;
5. Tampering, modification and/or servicing not authorised by the Company or their agents;
6. Subjection of the Goods to unusual or un-recommended physical, environmental or electrical stress, exposure to liquid, infiltration of foreign particles or entry by insects or vermin;
7. Re-installation or moving of the Goods by a person other than an authorised representative of the Company; or
8. The Purchaser/s or their agent/s failure or refusal to install engineering changes or enhancements recommended by the Company; and/or;
9. Acts of God or similar causes.
(f) LIABILITY WITH RESPECT TO WARRANTY AGAINST DEFECTS
1. The Company will not be liable in contract or in tort under this Warranty Against Defects for any loss or damage suffered and the Purchaser’s rights are limited to those set out in these Terms and Conditions and under statute;
2.With respect to this Warranty Against Defects, the Company’s total liability in respect of each event or series of connected events will not exceed the total price paid for the purchase of Goods and/or Services under these Terms and Conditions;
3. With respect to this Warranty Against Defects any Service response times stated by the Company in any Service contract are approximate only and the Company will not be liable for any direct or indirect loss or damage arising from its failure to meet such response times.
26. INDEMNITY
The Purchaser will indemnify and release the Company and keep the Company fully indemnified against any loss of or damage to any property or injury to or death of any persons caused by any negligent act or omission or wilful misconduct of the Purchaser, its employees, agents or sub-contractors or by any breach of its contractual obligations arising out of these Terms and Conditions.
27. ERRORS & OMISSIONS
To the extent permitted by law, any typographical, clerical or other error or omission in sales literature, Quotation, price list, Order Confirmation, Sales Invoice or other documents or information issued by the Company will be subject to correction without any liability on the part of the Company.
