Thermodata Pty Ltd Terms and Conditions
Last updated: October 10, 2017
In these conditions:
(1) “Vendor” means THERMODATA PTY LTD (ABN 60 097 016 165) of PO Box 125, Warrnambool, Vic 3280, Australia.
(2) “Purchaser” means the purchaser of the goods and services offered by the Vendor.
(3) “Goods” means electronic devices and associated computer software and accessories offered by the Vendor.
(4) “Services” means the certification, customisation and maintenance services offered by the Vendor.
(5) “Intellectual Property Rights” means all rights in relation to patents, copyrights, designs, trade marks (registered and unregistered), source code, work processes, trade secrets, know-how, confidential information, and other registered and unregistered rights.
(6) Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Trade Practices Act 1974) which by law cannot be excluded, restricted or modified.
(1) The Vendor has agreed to supply the Goods and Services to the Purchaser, and the Purchaser has agreed to accept the supply, on these terms and conditions.
(2) These terms and conditions (which shall only be waived in writing signed by the Vendor) shall prevail over all conditions of the Purchaser’s order to the extent of any inconsistency.
(3) Prices and/or specifications for Goods and Services are subject to change without notice.
3. Life Support
The Purchaser shall not use the Goods or Services as critical components in life support appliances, devices or systems. As used herein:
Life support devices or systems are devices or systems which,
(a) are intended for surgical implant into the body, or
(b) support or sustain life, and whose failure to perform, when properly used in accordance with instructions for use provided in the labelling, can be reasonably expected to result in a significant injury to the user.
A critical component is any component of a life support device or system whose failure to perform can be reasonably expected to cause the failure of the life support device or system, or to affect its safety or effectiveness.
4. Manufacturer’s Specifications and Instructions
The Vendor shall make available to the Purchaser on request the manufacturer’s specifications and instructions in relation to the Goods.
The price in relation to the Goods and Services are payable net and payment shall be made on purchase of the Goods or the provision of the Services unless other terms of payment are expressly agreed in writing.
All products are sold in Australian Dollars (AUD) regardless of originating location of Purchase.
6. Intellectual Property
The Goods and Services include Intellectual Property to which the Vendor has exclusive Intellectual Property Rights. The Purchaser must take all reasonable steps to protect the Vendor’s intellectual property rights including but not limited to immediately notifying the Vendor in writing of any possible infringement of the Vendor’s rights.
Any performance figures given by the Vendor are estimates only. The Vendor shall be under no liability for damages for failure to attain such figures unless specifically guaranteed in writing and any such written guarantee shall be subject to the recognised tolerances applicable to such figures.
The delivery times made known to the Purchaser are estimates only and the Vendor shall not be liable for late delivery or non-delivery and under no circumstances shall the Vendor be liable for any loss, damage or delay occasioned to the Purchaser or its customers arising from late or non-delivery or late installation of the Goods.
9. Loss or Damage in Transit
The Vendor does not accept any obligation to ship Goods and, subject to any written agreement to the contrary, the Vendor is not responsible for any loss or damage to Goods in transit. Goods shall be shipped and insured in accordance with the Purchaser’s instructions and at the Purchaser’s expense.
The Purchaser is responsible to press claims on carriers for loss or damage of Goods in transit. The Vendor shall render the Purchaser reasonable assistance to press any such claims.
10. Guarantee and Limitation of Liability
(1) Where the Goods are not manufactured by the Vendor, the guarantee or warranty of the manufacturer of the Goods shall be accepted by the Purchaser and is the only guarantee or warranty given to the Purchaser in respect of the Goods.
(2) The Vendor’s total liability for any and all losses and damages arising out of any cause whatsoever shall in no event exceed the purchase price of the Goods or Services in respect of which such cause arises.
(3) The Vendor shall not be liable for and the Purchaser releases the Vendor from any claims in respect of faulty or defective design of any Goods supplied, unless such design has been wholly prepared by the Vendor and the responsibility for any claim has been specifically accepted by the Vendor in writing.
(4) Except as provided herein and to the extent permitted by law, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, material or workmanship or otherwise are hereby expressly excluded.
(5) The Vendor shall not be liable for physical or financial claims, injury, loss or damage, or for consequential loss or damage of any kind arising out of the supply of the Goods or Services.
11. Goods and Services Tax
Where the Purchaser is located in Australia, and subject to a valid tax invoice being delivered to the Purchaser, the Purchaser shall pay all goods and services tax in relation to the supply of the Goods and Services by the Vendor.
12. Rights in Relation to Goods
(1) The risk in the Goods shall, unless otherwise agreed in writing, pass to the Purchaser upon delivery to the Purchaser or his Agent or nominated carrier.
(2) The property or title in the Goods shall not pass to the Purchaser until the Vendor has been paid in full the price of the Goods and all other monies which are owing by the Purchaser to the Vendor on any account whatsoever, whether under the Contract of Sale of the Goods or any other contract between the Vendor and the Purchaser.
(3) Payment in full by the Purchaser shall be deemed made upon receipt of payment in cash, or completion of clearance of a cheque, draft or electronic transfer by the Vendor’s bank, in favour of the Vendor and for the full amount payable for the Goods and Services.
(4) Until such time as property or title in the Goods has passed to the Purchaser, the Purchaser shall keep the Goods separate from other goods not belonging to the Vendor and mark them as the property of the Vendor, and the Purchaser shall not represent or warrant to any party that the Goods are the property of the Purchaser.
(5) On the happening of any of the following events:
(a) the Purchaser defaults in the due and punctual payment of the price of the Goods or Services or any other monies due to the Vendor;
(b) the Purchaser parts with possession of the Goods other than in the ordinary course of business where the property or title in such Goods has not passed to the Purchaser;
(c) the Purchaser, being a company, receives a winding up notice pursuant to the Corporations Law;
(d) the Purchaser, being an individual, receives a bankruptcy notice;
(e) the Purchaser enters into a scheme or arrangement with creditors or is placed under some form of official management or any such meeting is convened for any such purposes,
and in addition to any other remedies the Vendor may have, all monies which the Purchaser may owe to the Vendor on any account whatsoever, whether under this Agreement or otherwise, shall thereupon without the necessity of any notice or demand to the Purchaser become immediately due, payable and recoverable and the Vendor may without previous notice to the Purchaser repossess the Goods in which property or title has not passed to the Purchaser and recover from the Purchaser all costs incurred and damages sustained in connection with the costs of repossession.
(6) No time or indulgence or waiver of the Vendor’s rights under these Terms and Conditions shall constitute a waiver or release of any breach committed by the Purchaser.
(7) The Purchaser shall not alter, remove or in any way tamper with any of the trade or other marks or numbers that the Vendor attached to or placed upon the Goods.
13. Force Majeure
The Vendor shall not be liable for any failure to perform, and shall be relieved of, its obligations under these Terms and Conditions occasioned by force majeure including but without limiting the generality of the foregoing to war, legislation, civil commotions, fire, floods, explosions, acts of God, strikes, lockouts, sabotage, embargoes, labour employment difficulties, accidents, breakdowns, restrictions, prohibitions or any action by any government or quasi-government authority, and any other causes outside the reasonable control of the Vendor.
14. Purchaser’s Property
Any property of the Purchaser, including retained Data, under the Vendor’s custody or control shall be entirely at the Purchaser’s risk as regards to loss or damage caused to the property or by it.
15. Returned Goods
The Vendor shall not be under any obligation to accept Goods returned by the Purchaser without a Returned Merchandise Authorisation (RMA), issued by the Vendor, that specifies the Goods to be returned by the Purchaser.
16. Goods and Services Sold
All Goods and Services to be supplied by the Vendor shall be as described on the sales invoice agreed by the Vendor and the Purchaser and the description on such sales invoice as so agreed shall prevail over all other descriptions including any Purchaser’s specification or enquiry.
No order for Goods or Services may be cancelled except with the Vendor’s consent in writing and on terms which will indemnify the Vendor against all losses.
18. Place of Contract
This contract for sale of the Goods and Services and the rights and obligations of the parties hereunder shall be made in, governed, interpreted by and enforced in accordance with the laws in force in the State of Victoria, Australia, and the parties agree to submit all disputes arising between them to the courts of the said State and any court competent to hear appeals therefrom.