Subject to the provisions of clause 1(b) herein, unless varied in writing and signed by an officer of DMF International Pty Limited (“the Company”) the terms of the offer and acceptance made incorporating these conditions constitute the whole of the Contract between the parties and any purported qualification of these conditions by a buyer will be treated as inapplicable and of no effect. No employee or agent of the Company has authority to alter these conditions other than in writing endorsed hereon or annexed hereto.
Those conditions, guarantees and/or warranties implied by law and incapable of exclusion are deemed to be expressly incorporated herein. Nothing herein contained is intended nor shall be permitted to be inconsistent with any such conditions, guarantees and/or warranties. To the extent permitted by legislation all conditions, guarantees and/or warranties which are capable of exclusion are hereby expressly excluded.
The Contract made between the parties shall be deemed entered into in the State of New South Wales and shall be construed enforced and performed in accordance with the law applicable in the said State.
INTELLECTUAL PROPERTY INDEMNITY:
In ordering equipment, apparatus or goods to his own design, the buyer guarantees that in the making of them the Company will not be liable for any infringement of Letters Patent, Trade Marks, Registered Designs or the like and agrees to indemnify the Company against any action, loss or damage that may be brought against or suffered by the Company for such manufacture.
PROPERTY AND RISK:
Property in the goods will pass to the buyer only when the goods subject of this contract and all other goods the subject of any contract between the Company and the buyer which, at the time of payment of the full price of the goods sold under this Contract, have been supplied to the buyer but not paid in full, have been paid for in full. Until such time the buyer may sell the goods and receive moneys as the Company’s agent and shall account for such moneys. The buyer indemnifies and saves harmless the Company from any loss liability or damage caused whilst acting as such agent. The goods shall be at the buyer’s risk from the moment of delivery ex the Company’s works. The insurance of the goods from the time of delivery ex the Company’s works shall be entirely the responsibility of the buyer. The Company shall have no liability for any damage howsoever caused (including damage caused by negligence) during the delivery of the goods ex the Company’s works to the buyer.
Unless otherwise specifically stated on the front hereof the terms of payment shall be C.O.D. If you like to set up an account (30 days) and you have purchased from DMF on, at least, three occassions previously, contact us so that our accounts department can send you a credit application as a first step towards setting up an account, for your next purchase (Note that this Credit Application can only be sent by post and must be sent back to DMF by post).
LIMITATION OF LIABILITY FOR NON-DOMESTIC GOODS:
If and to the extent that this contract does not relate to the supply of goods ordinarily acquired for personal, domestic or household use or consumption, the Company’s liability for breach of any condition or warranty (other than those as to title, encumbrances and acquired possession implied by Section 69 of the Trade Practices Act) applicable to the goods is to be deemed limited in accordance with Section 68A of the Trade Practices Act to any one or more of the following as deemed by the Company:
- The replacement of the goods or the supply of equivalent goods;
- The repair of the goods (in which case repairs shall take place in the Company’s factory, with the buyer to bear all costs of transport to and from the factory);
- The payment of the cost of replacing the goods or acquiring equivalent goods;
- The payment of the cost of having the goods repaired.
In the event of any of the terms of the Contract being rendered impossible of performance by the Company due to any occurrence beyond its control such as but not limited to, strikes, lockouts, industrial disputes, war, acts of Government or other prevailing authorities, Acts of God or default of third parties then such non-performance shall be declared not to constitute a breach of the Contract. If any of the above events occur to the extent that this Contract cannot be enforced or performed according to its terms for a period in excess of thirty days then the Company may terminate the contract forthwith by notice in writing to the buyer.
If the buyer defaults in the due observance or performance of any or all of his obligations hereunder or being a natural person, dies or commits an act of bankruptcy, or being a company, takes or shall have taken against it any action for the winding up of the company or the placing of the company under official management or receivership, or allows any judgement against him or it to remain unsatisfied for fourteen days without taking formal steps to have the same set aside, or has execution levied against any of his or its assets,
then the Company without prejudice to any other rights or remedies open to it may:
- Determine the Contract and/or suspend manufacture or delivery, installation, fitment, commissioning or testing of any goods then outstanding;
- Retain any security given or moneys paid by the buyer or available through the enforcement of guarantee or security bonds lodged and apply this against the assessed loss and damages incurred by it in the performance of the Contract;
- Take possession of and/or remove any goods supplied under the Contract for which payment has not been received;
- Take such steps as it may deem necessary to mitigate the damages suffered, including putting to use, hiring out, sale or disposal of any goods supplied or to be supplied under the Contract and in its possession;
- Sue for the full Contract sum then outstanding.
The Company warrants that all goods are of merchantable quality and are free from defect as at the date of installation; for a period of three (3) months from the date of installation as to workmanship and for a period of twelve (12) months from the date of installation as to materials, but in any case excluding wilful impact damage or misuse or abuse of doors on the part of the buyer or any third party.
- All prices are quoted on the basis of the buyer warranting that door openings are adequately prepared and suitable to accept the mechanical forces and necessary methods of fixing applicable to use of impact doors therein.
- Where the buyer has supplied door opening dimensions and they prove to be incorrect the buyer shall bear all costs of or arising out of alteration to the doors or the door openings including installation or reinstallation of the doors.