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                                                    Elias Technical Service Pty Ltd   ABN  84 134 292 014

                      Unit 39, 85-115 Alfred St Chipping Norton 2170      PO Box 383,Panania,    NSW   2213   AUSTRALIA

           Telephone:   9725 6648 Telephone 2: 9724 0201 Mobile: 0420474538 Fax:  (02) 9754 1778  www.eliastechnical.com   

                                                                                Email: eliastech@hotmail.com.au

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                                                                                TERMS AND CONDITIONS


 

1.    INTERPRETATION:

 

a)     In these conditions and where the context permits:

  1. "Amount Owing" means the Price and all other amounts payable in relation to the purchase of Goods or performance of the Services.

  2. “Business Hours” means 9am to 5pm Monday to Friday except public holidays in New South Wales.

  3. “Buyer” means a purchaser of Goods or Services from ETS and includes the Buyer’s successors, executors, administrators, assigns and subsequent purchasers, its employees, agents and contractors (other than ETS).

  4. 'Buyer's Default" is as defined in clause 9 b).

  5. “Buyer's Equipment” means equipment over which the Buyer has an interest. 

  6. "Buyer's Order" means the Buyer's offer to purchase Goods from, or have Services performed by, ETS.

  7. "Claims" includes claims, demands, proceedings and liability of any kind, fines, damages, losses, costs and expenses.

  8.  “delivery" or "delivered” means the moment Goods or Serviced Equipment are collected from the premises of ETS or in relation to Services conducted on other than ETS' premises, means the time ETS notifies the Buyer that Serviced Equipment is ready for collection.

  9. “ETS” means Elias Technical Service Pty Limited ACN 134 292 014 ABN 84 134 292 014, and where the context permits, its employees, officers, agents and contractors.

  10. ETS Costs includes GST and other taxes payable by ETS in relation to the supply of Goods or Services and includes rates of exchange, freight, duty, insurance, labour and material costs.

  11. “Good” means an item of whatsoever nature supplied or agreed to be supplied by ETS to the Buyer including new or any second-hand goods, or parts and products installed in the Buyer's Equipment whilst performing the Services.

  12. "GST" is as defined under the A New Tax System (Goods and Services Tax) Act 1999 C'th.

  13. “Non-excludable Condition” is as defined in clause 8 a).

  14. "Price" means the price of Goods or Services as stated by ETS.

  15. “Including” and "for example" are not to be interpreted as terms of limitation, and so examples following those terms are not the only examples.

  16. "Serviced Equipment" means Buyers Equipment on which Services were performed.

  17. “Services” means a service of whatsoever nature provided or agreed to be provided, by ETS in relation to the Buyer's Equipment and includes repair, maintenance, modification and servicing of the Buyer's Equipment and the provision of technical advice.

  18. "Warranty Period" is 30 days from delivery.

  19. The singular includes the plural and vice versa; a reference to a whole includes a part, for example, a reference to the acceptance of a Buyer's Order may be acceptance of all or a part of it; a reference to a person includes a body corporate, an incorporated association, partnership, and government body; and a reference to a law means that law and its regulations as amended or replaced from time to time.

b)     These terms and conditions, any terms in the Buyer’s Order accepted by ETS and any additional  terms provided by ETS with a Good or Services together are referred to as the “Conditions”, and make up the entire contract between  ETS and the Buyer ("Contract") .  However, these terms and conditions prevail to the extent of any inconsistency between these terms and conditions, any terms in the Buyer’s Order and any additional terms provided with a Good or Services unless otherwise stated by ETS. 

 

2.    GENERAL:

  1. The Conditions, as amended and applicable at the relevant time, apply to each supply of Goods and Services by ETS to the Buyer.  For a Buyer's Order, the Conditions as at the date of acceptance of the Buyer's Order by ETS apply to those parts of the Buyer's Order then accepted, but otherwise, the Conditions may be amended by ETS at any time.

  2. The Price includes ETS Costs.  If ETS Costs increase after a Buyer's Order is accepted by ETS, the Buyer must pay any increase in Price due to the ETS Costs change as determined and notified by ETS in its sole discretion.

  3. Prices are based on delivery of Goods or performance of Services during Business Hours and the Price may be increased by ETS if the Buyer requests delivery or performance within a timeframe necessitating ETS to perform the Services or deliver the Goods outside Business Hours.  In this event ETS will notify the Buyer of the increased Price and the Buyer will be deemed to have accepted the increased Price if the Buyer confirms or allows ETS to perform the Services or make such delivery within the Buyer's requested timeframe. 

  4. Each Buyer's Order is an offer by the Buyer requiring acceptance by ETS, even if the Buyer's Order is in accordance with an estimate or quotation provided by ETS to the Buyer.

  5. The Buyer will be bound by instructions given to ETS by any person purporting to represent, or be authorised by, the Buyer.

  6. The Buyer agrees to use, operate and handle Goods and Serviced Equipment, strictly in accordance with ETS' instructions and any manufacturer's instructions accompanying the relevant Goods or Serviced Equipment which are consistent with ETS' instructions.

  7. The Buyer must not disclose or use any confidential information of which the Buyer becomes aware as a result of the supply of Goods or performance of Services except for the purpose for which it was imparted and in accordance with conditions stated by ETS.  This clause does not apply to the extent that a law, which cannot be excluded, requires otherwise.

 

3.  PAYMENT & DELIVERY:

  1. The Amount Owing is due and payable to ETS by the Buyer immediately on the issue of ETS' invoice.  The Buyer must pay ETS the Amount Owing within 7 days of the date of ETS' invoice.

  2. ETS will use reasonable endeavours to meet ETS'  stated or agreed delivery dates, but such dates are deemed estimates and ETS is not liable for any loss or damages suffered by the Buyer, nor is the Buyer entitled to cancel the relevant Buyer's Order, for non-delivery on the stated delivery date or for late delivery.

  3. The Buyer must take delivery of Goods or Serviced Equipment, either by itself or through a carrier organised by the Buyer from ETS’ premises or in the event that the Services were performed by agreement on another site, then from that site.

  4. If the Buyer fails to collect Goods or Serviced Equipment within 7 days of ETS giving notice that they are available for delivery, ETS is entitled to payment by the Buyer for storage charges. If the Buyer fails to collect Goods or Serviced Equipment within 14 days of ETS giving such notice, ETS may send the Goods or Serviced Equipment to the Buyer at the Buyer's cost or may remove the Goods or Serviced Equipment from where they are stored or sell them without liability to the Buyer.

 

4.    TITLE AND RISK:

  1. The risk of the Goods and Serviced Equipment passes to the Buyer on delivery. For clarity, the Buyer is liable for any damage to those Goods and Serviced Equipment from the date of delivery.

  2. Title in Goods passes to the Buyer on full payment to ETS of all Amounts Owing in relation to the Goods.

  3. Until the Buyer has paid in full the Amount Owing:

  1. the Buyer holds any delivered Goods as a bailee for ETS;        

  2. the Buyer owes fiduciary obligations to ETS in respect of the Goods;  and

  3. the Buyer must pay to ETS the proceeds of any on-sale of those Goods holding those proceeds on trust for ETS until paid to ETS.

  1. If the event of the Buyer's Default then, on ETS' request, the Buyer must immediately return all Goods over which ETS has title and ETS may, without notice, forcibly enter any premises where those Goods are stored and repossess them without liability for trespass.

 

 

  1. The Buyer must insure the Goods for theft, loss and damage for their full replacement value from delivery and, if required to do so in writing by ETS, cause ETS' interest in the Goods to be noted on the Buyer’s insurance policy.

  2. The Buyer must insure the Buyer's Equipment for theft, loss and damage for their full replacement value at all times, even if that equipment is in ETS' possession or control.

 

5.    ACCEPTANCE OF GOODS AND SERVICED EQUIPMENT:

a)     Unless the Buyer notifies ETS to the contrary in writing and within two (2) Business Days from delivery, the Goods and Serviced Equipment will be deemed to have been accepted by the Buyer. The Buyer will not be entitled to withhold payment of the Amount Owing in relation to those Goods or Serviced Equipment after acceptance or deemed acceptance nor whilst any claim of non-acceptance by the Buyer (which may only be made within two (2) Business Days from delivery) is being investigated by ETS.

b)     In relation to Serviced Equipment, the Buyer may not refuse acceptance on the grounds of insignificant defects which do not affect the general operation of the Buyer's Equipment.

 

6.    GOODS RETURNED FOR CREDIT:

No return of Goods will be accepted for credit by ETS without ETS' prior written approval and any returns must comply with the following conditions.  For clarity, compliance with the following conditions is not deemed to be ETS' approval to a return:

  1. All credit claims and return requests must be made in writing to ETS within 3 Business Days of delivery of the Goods, quoting ETS’ invoice number or other identifying details and the invoice date.

  2. Goods for which ETS has accepted a request for return, must be freight prepaid to ETS' premises arriving during a Business Day and within 2 Business Days of ETS' acceptance of the request for return.

  3. Goods for which ETS has accepted a request for return, must be returned to ETS' premises in the same condition as delivered, including in its original packaging which must not be damaged.

  4. Any credit given by ETS for returned Goods will be reduced by an amount as determined by ETS in its sole discretion, if the condition of the Goods or its packaging is not as required under subclause 6c) (including if the Goods or its packaging are soiled, marked or damaged in any way).  Such credit will also be reduced by handling or freight charges incurred by ETS.

  5. ETS will not credit any delivery, packing and handling charges incurred by ETS or the Buyer in relation to the original delivery, and in the event that the Goods were not defective on delivery to the Buyer, any credit given will be reduced by ETS' then applicable handling charge.

 

7.    SERVICES

  1. ETS will undertake the Services at ETS' premises or on other premises as agreed with the Buyer.

  2. Unless a different scope of work has been agreed in writing by ETS, the Services will cover work identified as necessary by ETS on the basis of the details the Buyer provides to ETS, if any, ETS' examination of the Buyer's Equipment and during the course of the performance of the Services.

  3. ETS is entitled to engage third parties for the performance of the Services.

  4. The Price stated by ETS for the Services are estimates based on the information which the Buyer provides and any initial examination of the Buyer's Equipment by ETS.  If while performing the Service ETS forms the opinion, in its sole discretion, that additional Services or additional parts for the Services are necessary, ETS is authorised to complete the additional Services and use the additional parts, as relevant, without seeking authorisation from the Buyer provided that this does not cause the Price of the Services to exceed the Price by 50%.  Otherwise, ETS will inform the Buyer of its new Price and if the Buyer decides not to proceed or continue with the Services, ETS is entitled to charge the cost of all Services (including costs for the time taken to attend on site, initial examination and quotation) performed to that point.

  5. ETS must be allowed unrestricted access to the Buyer's Equipment for the duration of the Services and work in performing the Services must not be delayed nor interrupted by the Buyer or its requirements.  In the event that ETS is delayed in providing or completing the Services arising from an act, omission or negligence on the part of the Buyer, ETS may charge an additional cost for the delay at ETS' current on-sale labour rates.

  6. In providing the Services, ETS may use parts or products that are new or refurbished as ETS deems acceptable in its sole discretion.  ETS will retain any replaced part that is removed from the Buyer's Equipment during the Services as its property.

  7. Where relevant in relation to the Buyer's Equipment, Services may result in loss of data.   It is the Buyer’s responsibility to back up all existing data, software and programs stored in or relating to the Buyer's Equipment prior to the commencement of the Services. ETS is not responsible for loss, recovery or compromise of data, programs or loss of use of the Buyer's Equipment arising out of the Services provided by ETS.

 

8.    WARRANTIES & LIMITATIONS OF LIABILITY

  1. To the extent permitted by law, ETS excludes all conditions, warranties, and rights and remedies of the Buyer, implied by custom, general law or statute except any implied condition, warranty, right or remedy, the exclusion of which would contravene any statute or cause any part of the Conditions to be void (“Non-excludable Condition”).  To the extent permitted by law, ETS' liability to the Buyer for breach of any express provision of the Conditions or breach of any Non-excludable Condition is limited, at ETS’ option, to the replacement or repair of any Goods, the resupply of any Service or a refund of the Price paid for the Goods or Service.

  2. Except as otherwise provided by any Non-excludable Condition and then only to the extent as provided by that condition and to the extent permitted by law, ETS is not liable for and the Buyer releases and indemnifies ETS from Claims:

  1. arising from or in any way related to any attempt to repair, alter, modify, tamper with or  do any other work  to, a Good or Buyer's  Equipment not undertaken by ETS;

  2. arising from or in any way related to any repair, alteration, modification, tampering with or  doing of any other work  to a Good or Buyer's  Equipment not undertaken by ETS;

  3. arising from or in any way related to, any accident to the Goods or Buyer's Equipment, or  any negligence, act or omission by the Buyer, or the use of non-genuine or not appropriate or faulty parts in the Goods or the Buyer's Equipment by the Buyer;

  4. whether direct or indirect, and whether or not resulting from or contributed to, by the default or negligence of ETS unless covered by warranties specifically given by ETS in the Conditions and then only to the extent limited in the Conditions;

  5. for defects arising from or contributed by goods provided, or  specifications, designs or descriptions specified, by the Buyer.

  6. for defects arising from or contributed by a non-compliance by the Buyer with the Conditions or with instructions provided by ETS, or  the improper use or handling of the Goods or Buyer's Equipment, or the use of the Goods or Buyer's Equipment at above or below  rated capacities or not under normal conditions of operation;

  7. for defects arising from or contributed by transportation, storage or maintenance by the Buyer;

  8. relating  to normal wear and tear or deterioration, abrasion, or corrosion;

  9. for defects arising more than 30 days from the date of delivery;

  10. for loss of income arising from lack of parts available by the manufacturer in Australia

  11. for defects arising from or contributed by the operation by the Buyer of Goods or Buyer's Equipment over speed humps or not along smooth surfaces;

  12. for defects arising from or contributed by pest infestation in the Goods or Buyer's Equipment;

  13. for defects arising from or contributed by the Buyer using chemicals, fuels or lubricants in or for the Goods or the Buyer's Equipment other than those specified by ETS or their manufacturer;

  14. for defects arising from or contributed by the Buyer using re-manufactured parts and batteries;

  15. arising  from or contributed by the transportation of the Goods or Buyer's Equipment by any carrier;

  16. in respect of damage to person (including injury or death) or in respect of damage to other property (including other items, plant, equipment, buildings  and land);

  17. arising from or contributed to by latent defects in the Goods or Buyer's Equipment;

 

 

  1. relating to drawings, illustrations, specifications, catalogues, photographs, advertising matter and details in instruction books, operator’s handbooks, publicity material or other publications supplied by ETS  which the Buyer acknowledges are informative only, and do not form part of the Conditions and are expressly excluded from the Conditions;

  2. arising from or contributed by  any representations not specifically confirmed by ETS in the Conditions;

  3. in relation to indirect and consequential damages; and

  4. arising from, or in any way related to, the Buyer’s breach of the Conditions

  1. To the extent permitted by law and subject to any Non-excludable Condition:

  1. the Buyer acknowledges that all specified  weights, measurements, power capacities and other particulars in relation to the Goods or Serviced Equipment are stated in good faith by ETS, and any inaccuracy shall not vitiate the Contract nor be the basis of any Claims against ETS, nor justify rejection of the Goods or Services;

  2. and notwithstanding anything to the contrary, new Goods sold by ETS to the Buyer are warranted to be free from defects on delivery to the Buyer, in accordance with the new Good's manufacturer's warranty.  For clarity, this warranty is to the same extent, in the same terms and for the period honoured by that manufacturer's warranty and such defects must appear within that period; 

  3. In relation to Goods obtained  from  other resellers or manufacturers,  the Buyer indemnifies and releases ETS in relation to any Claims arising from those Goods;

  4. the Buyer accepts all risks in relation to Goods and Buyer's Equipment modified by any person not being ETS, and their performance including where ETS has provided Services on those Goods and Buyer's Equipment, and the Buyer warrants that it does not rely on ETS to provide advice regarding such modifications. 

  1. Subject to subclauses 8a),8b) and 8c), all Services are warranted to be free from defects in workmanship by ETS ("ETS Defect") on delivery to the Buyer for the Warranty Period ("Services Defects Warranty").  For clarity, the ETS Defect must appear within the Warranty Period. 

  2. Subject to subclauses 8a),8b) and 8c), all second-hand Goods sold by ETS are warranted to be free from defects ("Second-hand Goods Defect") on delivery to the Buyer  for the Warranty Period ("Second-hand Goods Defects Warranty").  For clarity, the Second-hand Goods Defect must appear within the Warranty Period.

  3. To the extent permitted by law and subject to any Non-excludable Condition, and notwithstanding the Warranty Period, any warranty under the Conditions or under a Non-excludable Condition ("Warranty") will terminate  immediately in the event of any work being carried out on, or any installations to, the Goods or Serviced Equipment, by any person not authorised by ETS in writing, or by any event for which triggers a limitation of liability of ETS under clause 8 and ETS shall have no further responsibility in respect to those Goods or Services including under the Services Defects Warranty and the Second-hand Goods Defects Warranty. 

  4. Except as otherwise specifically stated in the Conditions and to the extent permitted by law, ETS is not liable for the Buyer's expense of claiming under any Warranty.

  5. If any defect covered by a Warranty appears during the period that a Warranty is effective, the Buyer must during that period, notify ETS of the defect.  Such notice must be in writing and must be sent to the address for ETS as stated at the beginning of these terms and conditions.  If a notice is sent by email, it must be confirmed by notice delivered by hand or post or by fax.  Subject to the Buyer’s compliance with this notification condition and to the extent permitted by law, the relevant Goods or Serviced Equipment, must be returned freight prepaid by the Buyer to ETS for assessment within  2 Business Days of such notification, together with a full written description of the alleged defect, what fault occurred, what the Goods or Serviced Equipment were being used for and how they were being used, at the time fault occurred.  Proof of purchase or Services (or a copy of such) must be returned with the Goods or Serviced Equipment.     If no defect covered by a Warranty can be found by ETS, the Buyer must pay ETS a charge for ETS' review of the alleged defect at ETS' then hourly rate, plus return delivery costs and applicable ETS Costs.  

  6. Defects under Warranty for which the Buyer has complied with all conditions of the Warranty, will be repaired or replaced free of charge at ETS' option and the Buyer’s reasonable freight charges for return of the goods will be reimbursed. 

  7. The benefits of all warranties given under the Conditions are in addition to any other rights and remedies the Buyer has under a law in relation to the Goods and Services pursuant to Non-excludable Conditions.

  8. This clause is in accordance with the Australian Consumer Law.  In this clause references to "our" refers to ETS and to "you" refers to the Buyer. Our goods 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 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. 

  9. This clause is in accordance with the Australian Consumer Law. Goods presented for repair may be replaced by refurbished goods of the same type rather than being repaired. Refurbished parts may be used to repair the goods. The repair of Goods may result in loss of data.

 

9.    BUYER DEFAULT:

a)    Should the Buyer not pay the Amount Owing within 7 days of the due date for payment, then interest on the Amount Owing at the rate 15% per annum calculated on a daily basis, is payable by the Buyer to ETS from the date the Amount Owing was due to the date of actual payment and such interest forms part of the Amount Owing.

b)     If any one or more of the following events occurs:

i.      payments of the Amount Owing due to ETS are not received within 7 days of due date for payment;

ii.     ETS believes, whether on reasonable grounds or not and in its absolute discretion, that the Buyer is unable to pay its debts in the ordinary course of business;

iii.    if the Buyer is an individual he or she dies or otherwise becomes insolvent or if any step is taken to appoint a trustee in bankruptcy, or for all Buyers steps are taken to appoint a receiver, a receiver and manager, a provisional liquidator, a liquidator, an administrator or other like person, or if a mortgagee enters into possession of any part of the Buyer’s assets or business,

(the "Buyer's Default") then, without prejudice to the ETS' other contractual, legal and equitable rights and remedies:

iv.    all Amounts Owing are immediately due and payable in cleared funds, notwithstanding any inconsistent term or credit or earlier period granted to the Buyer for payment; and

v.     ETS is irrevocably appointed the attorney of the Buyer for the purpose of exercising its rights under the Conditions.

 

10    FURTHER GENERAL PROVISIONS:

  1. If any provision of the Conditions is illegal or unenforceable, it will be read down to the extent necessary to make it legal and enforceable, but if this is not possible, then that provision will be severed and the validity and enforceability of the remaining provisions will not be affected.

  2. These conditions are governed by laws of New South Wales and the Buyer agrees to submit to the exclusive jurisdiction of the Courts of New South Wales.

  3. A waiver, delay, failure or indulgence by ETS in exercising any right or power, does not operate as a waiver of that right or power in the future, nor of any breaches by the Buyer unless in writing by ETS.

  4. For abundant clarity, nothing in the Conditions affects the Buyer’s statutory rights which cannot be excluded, except to the extent they can be excluded.

  5. ETS' address for notices and for the return of Goods in accordance with the Conditions and ETS' other contact details, appear at the top of these terms and conditions.  ETS may change such address and details by notice to the Buyer.

  6. The Buyer agrees to ETS undertaking any search in relation to the Buyer on, and registering its security interest in the goods in, any register of security interests, including the Personal Property Securities Register at the cost of the Buyer.

  7. These conditions shall not be interpreted or construed to confer any rights or remedies on any third parties.

  8. ETS is not responsible for any failures or delays in performing Services or delivering Goods or Serviced Equipment that are due to events outside ETS’ control.

  9. Without ETS' prior written consent, the Buyer cannot assign or otherwise transfer any of its rights or obligations relating to the Goods and Services or under the Conditions.

 

 

 

11.   TERMINATION:

  1. Where the Buyer is not otherwise in breach of the Conditions, and by giving the Buyer notice, ETS may terminate any and all Contracts made with the Buyer for any reason and at any time, without compensation excepting a refund of any payment made to ETS for a Good yet to be delivered.

  2. Termination of the Contract is without prejudice to the rights of either party in relation to any antecedent breach matter or thing.

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