FARMSCAN AG PTY LTD, GENERAL TERMS AND CONDITIONS OF SALE
The expression “the products” wherever the context permits shall be constructed both as reference to each product sold by the Company to the Buyer and also as a reference to all of the products sold by the Company to the Buyer.
2. SITE PREPARATION
The Buyer shall at the Buyer’s expense prepare the site for installation of the product sold so as to satisfy the product’s electrical environment and any special physical requirements as specified by Farmscan AG or the manufacturer.
Farmscan AG shall use its best endeavours to deliver the products to the Buyer on or before the estimated delivery date but except as may otherwise be provided by law Farmscan AG shall be under no liability whatsoever for any failure or delay in the delivery of the products.
Unless otherwise agreed, payment for all products shall be made on delivery.
5. LIMITATION OF LIABILITY
In no event shall Farmscan AG be under any liability to the Buyer or to any third party for any loss or damages of any kind whatsoever including without limitation loss of profit and consequential loss caused by any act, negligent or otherwise, or omission by Farmscan AG its servants or agents or any other persons in any way related to or arising out of the supply or non-supply or performance or non-performance of anything or any service provided for or contemplated by or in pursuance of this Agreement.
6.1 In relation to goods not manufactured by Farmscan AG , the Buyer acknowledges that Farmscan AG passes on to the Buyer only the guarantee (if any) in respect of the products given by the manufacturer of the products and gives no guarantee itself in respect of the products.
6.2 In relation to goods manufactured by Farmscan AG, Farmscan AG gives the guarantee in terms of the written guarantee document (if any) delivered with the products.
7. FITNESS FOR PURPOSE
Should the Buyer either expressly or by implication have made known to Farmscan AG or to any person by whom any antecedent negotiations were conducted in relation to the products any particular purpose for which the products are being acquired the Buyer acknowledges that he has not relied nor would it have been reasonable for him to have relied on the skill or judgement of Farmscan AG when deciding whether the product was reasonably fit for that purpose.
8. TITLE AND PROPERTY IN PRODUCTS
Title to and ownership of and property in the products shall pass to the Buyer only upon Farmscan AG receipt of payment of the full purchase price and while the products remain the property of the Company the Buyer holds the products on trust for the Company in terms of these General Conditions and the Buyer shall store or keep the products in a manner which clearly identifies the products as the property of the Company.
9. RISK AND INDEMNITY
Notwithstanding any other of the terms of these General Conditions the risk in the products shall pass to the Buyer on delivery to the Buyer or the Buyer’s agent and should the products be lost or damaged after delivery and prior to payment the Buyer shall indemnify Farmscan AG for such loss or damage.
10. ON SALE
The Buyer is at liberty to on-sale the products prior to payment in full of the purchase price as agent for the Company provided that the proceeds received from the on-sale are held on trust for the Company until payment in full of the purchase price and are not mixed with other funds of the Buyer until the purchase price is paid to the Company.
11. STATUTORY RIGHTS
Certain Federal, State and Territory legislation including but not limited to the Trade Practices Act 1974 as amended (“the Act”) has the effect of giving consumers certain rights which cannot be excluded, restricted or modified by agreement. The provisions of this Agreement must therefore be read having regard to such legislation to the extent that it may be applicable and nothing in this Agreement shall have the effect of excluding, restricting or modifying such rights. Should Farmscan AG be liable for breach of a condition or warranty implied by the Act, Farmscan AG’ liability for such breach shall be limited to:
11.1 in the case of goods any one or more of the following as determined by Farmscan AG;
11.1.1 the replacement of the goods or the supply of equivalent goods; or
11.1.2 the repair of the goods; or
11.1.3 the payment of the cost of replacing the goods or acquiring the equivalent goods;
11.2 in the case of services any one or more of the following as determined by Farmscan AG
11.2.1 the supplying of the services again; or
11.2.2 the payment of the cost of having the services supplied again.
12. FORCE MAJEURE
Without prejudice to any other provision hereof Farmscan AG shall not be liable for any failure to fulfil any terms of this Agreement if such fulfilment has been delayed, hindered or prevented by any circumstances whatsoever not within Farmscan AG’ direct control including without limiting the generality of the foregoing strikes or lock-outs, material shortages. Farmscan AG’ suppliers failure to supply, labour disputes, war, hostilities or the threat or apprehension thereof or compliance with any order or request of any competent government authority or department.
13. WHOLE AGREEMENT
These conditions and all annexures and schedules incorporated herein by reference constitute the whole of the agreement and understanding between the parties with respect to the subject matter hereof and representations and agreements not expressly contained herein or incorporated herein by reference shall not be binding upon Farmscan AG as conditions, warranties or otherwise.
All conditions, warranties and representations on the part of Farmscan AG whether express or implies, statutory or otherwise whether collateral or antecedent hereto or otherwise with the exception of these conditions and any applicable statutory warranties and representations and any guarantee expressly referred to herein are expressly excluded.
The Buyer shall not be entitled to assign the benefit of any agreement with the Company for the supply of products without the Company’s written consent which consent the Company may give or withhold in its absolute discretion.
16. ADDITIONS, MODIFICATIONS
All additions and modifications of these conditions shall be in writing and shall be signed by both Buyer and Company.
17.1 If the Buyer:
17.1.1 fails to pay the purchase price on the due date;
17.1.2 fails to perform any of its obligations under these conditions or any other agreement with the Company;
17.1.3 being an individual commits any act of bankruptcy or being a corporation passes a resolution for winding up (except for the purpose of
17.1.4 has a receiver and manager appointed over any of its property or assets; or
17.1.5 makes an arrangement for the benefit of its creditors or enters into any scheme of arrangement pursuant to any of the provisions of the Companies
17.1.6 has a petition presented for its winding up which is not dismissed within 21 days from the date of presentation thereof then the Company may, at its
option do any or all of the following;
(a) demand immediate payment of the balance of the purchase price;
(b) require payment in advance for all deliveries;
(c) enter the Buyer’s premises and repossess the products and any other products or goods sold by the Company to the Buyer for which payment is overdue; or
(d) immediately suspend or terminate the supply or further supply of products pursuant to any agreement between the Company and the Buyer for the supply of products or goods.
17.2 The Buyer indemnifies the Company against all losses, damages and expenses incurred or sustained by the Company as a result of the cancellation
or partial cancellation of any agreement pursuant to this clause 17.
In the event that any agreements, arrangements or understandings between the Buyer and the Company in relation to supply of products is terminated by agreement between the Buyer and the Company, the Buyer shall at the cost of the Buyer be obligated to arrange the return of any relevant products to the Company using the same method of freight as that used to transport the relevant products to the Buyer and the risk in the product shall remain with the Buyer until the same are re-delivered to the Company.
19. APPLICABLE LAW
These conditions shall be governed by the laws of the State of Queensland.