Soche Pty LtdTERMS & CONDITIONS OF SALE
1. DEFINITIONS(a) “Soche” means Soche Pty Ltd ACN 005 953 159;(b) “Equipment” means the goods the subject of a Purchase Order;(c) “GST” has the meaning given in section 195-1 of the GST Act;(d) “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any regulations made thereunder;(e) “Insolvency Event” means:(i) an order is made or an effective resolution is passed for winding up or dissolution without winding up (otherwise than for the purposes of reconstruction or amalgamation) of the Purchaser and the order or resolution remains in effect for a continuous period of five (5) days;(ii) a receiver, receiver and manager, official manager, administrator, provisional liquidator, liquidator, or like official is appointed over the whole or a substantial part of the undertaking and property of the Purchaser or the Purchaser enters or proposes to enter into any scheme of arrangement or any compositions for the benefit of its creditors;(iii) a holder of an Encumbrance takes possession of the whole or any substantial part of the undertaking and property of the Purchaser or the Purchaser enters or proposes to enter into any scheme of arrangement or composition for the benefit of its creditors;(iv) the Purchaser is unable to pay its debts as they fall due;(v) as a result of section 459F or any other section of the Corporations Act 2001 (Cth), the Purchaser is taken to have failed to comply with a statutory demand;(vi) the Purchaser defaults, and such default continues for a period of ten (10) days after written notice has been given to it by Soche, in the payment of any money which is owing by the Purchaser on any account whatsoever to Soche;(vii) a demand is made on the Purchaser for payment of money under any instrument, guarantee or indemnity given to secure advances or other financial accommodation made to the Purchaser;(viii) the Purchaser (except in the case of a transfer of business during a bona fide solvent group reconstruction) ceases to carry on business for a period of more than ten (10) consecutive days; or(ix) the Purchaser, if a natural person, commits any act of bankruptcy or becomes bankrupt;
(f) “Premises” means the premises nominated in a Purchase Order for delivery or installation of the Equipment or supply of the Services, as the case may be, or any other premises to which Soche agrees to deliver or install the Equipment or to supply the Services to;(g) “Purchaser” means the person to whom Soche has agreed to supply Equipment or Services;(h) “Purchase Order” means an offer to purchase goods or services from Soche that has been accepted by Soche; and(i) “Invoice” means a tax invoice that complies with the GST Act;(j) “Services” mean services supplied by Soche to a Purchaser in connection with a supply of the Equipment and include installation services; and2. QUOTATIONS & TERMS2.1 Quotations issued by Soche shall constitute an invitation to treat and shall not be binding on Soche.2.2 A quotation that is signed and returned to Soche shall constitute an offer to purchase goods and services from Soche subject to these terms and conditions.2.3 All Purchase Orders shall be subject to these terms and conditions.
3. INVOICES3.1 The issue of an Invoice by Soche shall in no case constitute an offer by Soche to supply goods or services.3.2 Upon acceptance of a Purchase Order, Soche shall deliver an Invoice in respect of such Purchase Order to the Purchaser.3.3 The price payable to Soche in respect of Equipment and Services shall be as set out in the relevant Invoice.3.4 Unless an Invoice provides to the contrary, Invoices shall be due and payable in full and without deduction or abatement within 30 days of the invoice date.3.5 The Purchaser shall pay interest on any sums unpaid to Soche (30) calendar days after becoming due and payable and at the rate from time to time applied by the ANZ Banking Group Limited on overdrafts in excess of one hundred thousand dollars ($100,000.00) plus two percent (2%).3.6 Payments to Soche in respect of Invoices shall be made by EFT, cash, VISA card, MasterCard or Bankcard. If payment is made by VISA, MasterCard or Bankcard, the Purchaser shall pay the applicable merchant fee (if any) shown on the Invoice.4. DELIVERY4.1 If an Invoice provides for delivery, Soche shall procure that the Equipment is delivered to the Premises.4.2 If an Invoice does not provide for delivery then the Equipment shall be delivered to the Purchaser at Soche’s address shown on the Invoice.4.3 Soche may substitute any component of the Equipment or part of any component of the Equipment prior to delivery without consultation with the Purchaser and may in any other respect modify the Equipment if, in the reasonable opinion of Soche, the said substitution or modification:(a) will not adversely affect the performance or capacity of the Equipment;(b) will not alter the configuration of the Equipment in any material respect; and(c) will not otherwise materially affect the obligations of Soche or prejudice the rights of the Purchaser.5. INSTALLATION & OTHER SERVICESIf an Invoice provides for installation of the Equipment, the following provisions will apply.5.1 The Purchaser shall at its own cost prepare and make suitable the Premises, including without limitation in relation to available electrical supplies and any other necessary facilities. The Purchaser shall be responsible for delivering the Equipment to such premises, unless such premises are nominated for delivery pursuant to clause 4.1.5.2 The Purchaser shall procure a license for Soche and its employees and agents to enter upon the Premises for the purpose of undertaking installation services.5.3 Unless otherwise specified in an Invoice or agreed by Soche, such installation services shall be supplied during Soche’s standard business hours and on a date agreed to by Soche and the Purchaser.5.4 The Purchaser shall indemnify Soche against all losses, costs, expenses, demands and claims incurred by Soche and arising out of any failure of or delay in the Purchaser complying with clauses 5.1 & 5.2 & 5.3.6. TRAININGSoche will provide training in the use of the Equipment, if requested by the Purchaser, subject to payment of such additional charge as may be agreed.7. TITLE & RISK7.1 Equipment shall be at the Purchaser’s risk on and from delivery to the Purchaser or delivery at the Purchaser’s direction (and whether title has passed or otherwise).7.2 Property in the Equipment shall not pass to the Purchaser until full payment has been made of the purchase price and any other sums whatsoever outstanding from the Purchaser to Soche from time to time on any account.7.3 If the Purchaser becomes subject to an Insolvency Event:(a) all valid Tax Invoices issued by Soche to the Purchaser shall, to the extent not otherwise then due, become immediately due in full;(b) property in the Equipment shall not pass to the Purchaser and the Purchaser shall keep the Equipment as bailee for Soche (returning the same to Soche upon request); and(c) Soche is hereby irrevocably authorised to enter any premises where the Equipment is kept, and to use the name of the Purchaser and to act on its behalf if necessary to recover possession of the Equipment.7.4 Until title to the Equipment has passed to the Purchaser, the Purchaser may only affect sale of the Equipment or any part thereof in the usual course of its business upon the following conditions:(a) that the Purchaser holds any and all proceeds of sale relating to such Equipment on trust for Soche in an account opened in Soche’s name; and(b) that the Purchaser agrees (if required) to assign to Soche any rights to any outstanding monies relating to the sale or disposal of such Equipment.7.5 Each part of the Equipment shall be deemed to be a chattel notwithstanding any affixation to any premises.
8. WARRANTIES & INDEMNITIES8.1 Soche warrants that it will repair or, at its option, replace any new Equipment sold by it where that Equipment is defective by reason of faulty workmanship or materials, and it will do so free of charge for parts and labour as follows: (a) The warranty is 12 months from the date of installation on parts and labour;(b) The warranty only applies if the machine has been installed and used in accordance with the relevant instruction manual;(c) The defect must be notified to Soche within 12 months of the date of delivery to the Purchaser;(d) Soche’s determination as to whether the Equipment demonstrates a defect shall be in Soche’s sole discretion and shall be conclusive;(e) The warranty is void in the event of any service undertaken by an unauthorized service person or any tampering of any nature with the machine by unauthorized persons;(f) Free service calls will only be made where the owner lives within 30 kilometers of the CBD of a capital city. A travel fee may be charged on service calls outside those areas;(g) The warranty does not apply to:(i) damage caused by accident, misuse or negligence;(ii) products repaired or tampered with by anyone other than Soche Pty Ltd or its authorized representatives;(iii) calls to attend, or requests for service in respect of any adjustments or cleaning which could have been performed by the owner, external power supply or other faults in any ancillary or other equipment or external interferences of any nature whatsoever;(iv) machines where the serial number has been removed or defaced;(v) age caused in transit or when in the possession of a transport company; and(vi) any circumstances which constitute an “Act of God” (e.g. earthquakes, typhoons, flash floods, etc8.2 Save for the foregoing and to the maximum extent permitted by law, all terms and warranties express or implied in respect of these terms and Soche’s supply of Equipment and Services are hereby expressly negatived and excluded.8.3 Soche’s liability for breach of clause 8.1, or if any legislation implies in these terms a term or warranty and further provides that such term or warranty may not be excluded, then in respect of such term or warranty, shall be limited, at Soche ’s option, to one or more of the following:(a) if the breach relates to goods:(b) the replacement of the goods or the supply of equivalent goods; (c) the repair of such goods;(d) the payment of the cost of repairing the goods or acquiring equivalent goods; or(e) the payment of the cost of having the goods repaired; and(f) the supplying of the services again; or(g) the payment of the cost of acquiring equivalent services.8.4 Without limitation to clause 8.2, in no case shall Soche be liable for:(a) loss of profit (whether direct or indirect); or(b) special, indirect, incidental or consequential damages, whether or not the possibility of such damages could have been reasonably foreseen, in connection with the supply of Equipment or Services.8.5 If Equipment carries the benefit of a separate manufacturer’s warranty in favour of the Purchaser, it shall be the Purchaser’s sole responsibility to register or take whatever other action may be necessary to obtain the benefit of such warranty. If Soche agrees to assist the Purchaser in making a claim under a manufacturer’s warranty and such claim is rejected by the provider of such warranty, the Purchaser shall meet Soche’s reasonable costs in supplying such assistance.8.6 The Purchaser shall indemnify and hold Soche harmless in respect of all losses, costs, damage, expenses, demands and claims incurred by Soche and arising out or in connection with:(a) damage or loss occasioned to Soche’s property and occurring within or without the premises; and(b) injury or death to any employee or agent of Soche and arising within or without the Premises.
9. RETURNS9.1 Subject only to clause 9.2, returns of Equipment shall be at the sole discretion of Soche and shall not be considered by Soche unless:(a) such Equipment is unused and not marked or damaged;(b) such Equipment remains in its original un-damaged packaging together with all user manuals and components as supplied;(c) the Purchaser requests a return within 10 days of delivery of such Equipment;(d) the purchase price in respect of such Equipment has been paid in full; and(e) the Purchaser agrees to pay Soche a re-stocking fee (20% of the purchase price).9.2 Equipment that is dead on arrival may be returned, provided: (a) such Equipment is not marked or damaged;(b) such Equipment is returned with its original packaging together with all user manuals and components as supplied; and(c) such Equipment is returned within 5 days of delivery. 9.3 Returns shall in all cases be on the following terms:(a) the Purchaser shall at its own cost deliver returned Equipment to Soche at its address shown overleaf;(b) returned Equipment shall remain at the risk of the Purchaser until delivered into the possession of Soche; and(c) the Purchaser shall be entitled to a credit note, but not a refund, in respect of returned Equipment, provided that the quantum of such credit note shall be an amount equal to the GST exclusive price of such Equipment – the Purchaser shall not be entitled to credit in respect of any other amounts paid to Soche in respect of such equipment or its delivery.10. GST10.1 The amount or value of any payment or other consideration payable or to be provided under or in connection with a Purchase Order that is accepted by Soche is the value for GST purposes of any taxable supply to which that payment or other consideration relates.10.2 If in connection with a Purchase Order, Soche makes a supply that is taxable for the purposes of GST to the Purchaser, Soche may, subject to and upon issuing an Invoice, in addition to any consideration provided or to be provided to Soche by the Purchaser in respect of such supply, recover from the Purchaser a payment on account of GST, such payment to be calculated by multiplying the value of such taxable supply by the prevailing GST rate. Such additional payment shall be payable by the Purchaser:(a) where the consideration provided or to be provided by the Purchaser is monetary, at the same time and in such manner as such monetary consideration is payable to Soche; and(b) where such consideration provided or to be provided by the Purchaser is monetary is not monetary, within 14 days of the Purchaser’s receipt of a Valid Tax Invoice and in such manner as Soche reasonably requires.
11. ENTIRE AGREEMENTThese terms and conditions shall in all cases constitute the entire agreement between Soche and the Purchaser with respect to the supply of goods and services by Soche to the Purchaser. Without limiting the generality of the foregoing, these terms and conditions of shall in all cases exclude the terms and conditions on which an offer to purchase goods and services been made to Soche (if any).
