Conditions of Sale
General
In these Conditions of Sale, “Pulsetech” means PTH Global Pty. Ltd. and “Purchaser” means the person, firm, corporation or body described in Pulsetech’s quotation who orders Pulsetech goods or services. Unless otherwise agreed in writing, these conditions constitute the entire agreement between Pulsetech and the Purchaser for the supply of goods and/or services by Pulsetech. A reference in these conditions to the “Contract” means these conditions and any other documents agreed by the parties in writing to form part of the contract for the supply of goods and/or services by Pulsetech to the Purchaser. In the event of any conflict or inconsistency between these conditions, any quotation by Pulsetech, any order by the Purchaser, or any other document forming part of the Contract, Pulsetech's quotation shall prevail to the extent of that conflict or inconsistency.
Quotations
Unless previously withdrawn, any quotation given by Pulsetech for the supply of goods or services to the Purchaser is valid for the period stated therein and, when no period is stated, for thirty (30) days from its date. Notwithstanding anything to the contrary, Pulsetech’s quotation shall not create any obligation to sell and no contractual relationship shall arise until Pulsetech by writing has accepted the Purchaser’s written order made on the basis of Pulsetech’s quotation.
Acceptance
The Purchaser’s order shall be accompanied by sufficient information to enable Pulsetech to decide whether to accept the order. Any date of despatch or delivery specified in Pulsetech’s quotation is subject to amendment or variation at Pulsetech’s discretion at any time up to Pulsetech’s acceptance of the Purchaser’s written order.
Prices
Unless otherwise stated in Pulsetech’s quotation, all prices quoted by Pulsetech are subject to adjustment at any time up to Pulsetech’s acceptance of the Purchaser’s written order, including without limitation where there have been changes to any of the following since the date of Pulsetech’s quotation:
(i) the costs of materials or labour before shipment and/or before delivery of the relevant goods and/or provision of the relevant services;
(ii) fluctuations in the rates of foreign exchange;
(iii) the rates of freight (air, ocean, rail, truck etc.) marine or other insurance, shipping expenses;
(iv) the rates or classifications determining any applicable taxes, duties or levies, including customs duty at the time of importation of the relevant goods and/or the provision of the relevant services.
All prices quoted or specified by Pulsetech are exclusive of State and Federal taxes, duties, or levies that may apply or be imposed in relation to the Contract or the provision of goods and/or services by Pulsetech.
Taxes, Duties and Levies
Notwithstanding any other provision of the Contract:
(i) the Purchaser agrees to pay any tax or duty, including without limitation any consumption tax, value added tax, goods and services tax, stamp duty, customs duty and similar taxes or duties levied in respect to the goods and/or services supplied under the Contract; and
(ii) for any supply priced in a foreign currency where Australian goods and services tax (GST) is applicable, Pulsetech will follow the guidelines of the Australian Tax Office and convert the GST amount into Australian dollars using the rate of exchange as stated in the invoice.
Outstanding Payment
Outstanding amounts payable to Pulsetech will attract interest at a rate equal to 2% over Citibank Australia’s prime lending rate from time to time charged to commercial borrowers, accruing daily, from the due date to receipt in full.
Variations
If any variation to the Contract or suspension of works is agreed by the parties (which agreement shall be in writing), any expense incurred by Pulsetech as a consequence of such variation or suspension shall be added to the price of the relevant goods and/or services and Pulsetech may extend the date of delivery by a period considered appropriate by Pulsetech in its discretion acting reasonably.
Drawings and Specifications
Any descriptive and shipping specifications, drawings and particulars of weights and dimensions submitted with Pulsetech’s quotation are approximate only, and the descriptions and illustrations contained in Pulsetech’s catalogues, and other advertisement materials are intended merely to present a general idea of the goods described therein, and none of these shall form part of the Contract unless so specified in writing by Pulsetech. After acceptance of the Purchaser’s order, Pulsetech on the Purchaser’s request shall provide to the Purchaser such certified drawings as Pulsetech may consider appropriate in connection with the relevant goods or services. Any drawings requiring the Purchaser’s approval before manufacturing commences shall be returned to Pulsetech within fourteen (14) days of submission to the Purchaser and the Purchaser shall signify in writing its approval or otherwise of the relevant drawings.
Inspection and Performance Tests
Pulsetech’s products are inspected and where appropriate subjected to Pulsetech’s standard test at Pulsetech’s works before despatch. Any tests which are agreed to by Pulsetech other than Pulsetech’s standard tests or those specified in the Contract shall be charged to the Purchaser. In the event of delay on the Purchaser’s part in attending a test which Pulsetech has agreed to perform in the presence of the Purchaser or the Purchaser’s representative, after seven (7) days notice that Pulsetech is ready, the test will proceed in the Purchaser's absence and shall be deemed to have been made in the Purchaser’s presence.
Whether or not any tests show that any particular goods comply with any specifications set out in the Contract shall be decided by Pulsetech in its absolute discretion. If in Pulsetech’s opinion any particular goods do not meet specification, Pulsetech within a reasonable time after completion of the relevant tests may alter the relevant goods such that they meet specification. Notwithstanding anything else in the Contract, Pulsetech does not warrant or represent that as the result of any testing it will or will not be able to identify any latent faults or defects in any goods supplied by Pulsetech. Except as specified in clause 11(a) and to the extent permitted by law, Pulsetech excludes all responsibility and liability for any loss, damage, injury, expense, cost, claim, outgoing or other liability suffered or incurred by the Purchaser arising from or in connection with Pulsetech’s failure to identify or misidentification of any latent faults or defects in any goods supplied by Pulsetech.
Purchaser Supplied Goods
Any goods supplied by the Purchaser or by a third party at the direction of the Purchaser which are to be used or applied in connection with goods supplied by Pulsetech (“Purchaser Supplied Goods”) are the sole responsibility of the Purchaser. Pulsetech shall not be responsible or liable for the quality or suitability of any Purchaser Supplied Goods, any failure of Purchaser Supplied Goods, any failure of Purchaser Supplied Goods to operate properly in connection with goods supplied by Pulsetech, any failure of goods supplied by Pulsetech that is caused or contributed to by Purchaser Supplied Goods, or any loss, damage, injury, expense, costs, outgoings, claims, demands, or other liabilities arising from or in connection with any of the foregoing.
Despatch
Risk shall pass as specified in the Contract. If no other terms regarding delivery or passing of risk are specified, delivery shall be deemed to occur and risk shall pass Ex-works. After risk has passed, any transport or off-loading conducted by Pulsetech shall be as the Purchaser’s agent and Pulsetech shall not be liable for any cost, loss, or damage suffered thereby and the Purchaser shall indemnify Pulsetech with respect to any costs, loss, or damage incurred by Pulsetech thereby. Any times specified in the Contract for despatch or delivery are to be counted from the date of the Contract. The time for despatch or delivery shall be extended by a period considered appropriate by Pulsetech if delay in despatch or delivery, in Pulsetech’s opinion, is caused by lack of instruction from the Purchaser or by any industrial dispute or other cause beyond Pulsetech’s control. If Pulsetech does not receive forwarding instructions sufficient to enable Pulsetech to despatch by the agreed delivery date and within fourteen (14) days after notification that the goods have been tested and are ready for despatch, the Purchaser shall be deemed to have taken delivery of the goods and payment shall be due as though the goods had been delivered on the date of notification. If the Purchaser fails to accept delivery within the aforementioned time, storage will be arranged by Pulsetech and all charges for storage, insurance, demurrage and other appropriate contingent charges shall be payable by the Purchaser.
Terms of Payment
Unless specified otherwise in the Contract, payment in full shall be due on notification by Pulsetech that the goods are ready for despatch or, in the case of services, when the services have been performed. Where a credit account has been approved by Pulsetech in its absolute discretion, accounts are payable 30 days from the date of the invoice unless specified otherwise in the Contract. Pulsetech shall retain title to any goods supplied until Pulsetech has received full payment for them.
The Purchaser acknowledges that
(i) the Contract creates a purchase money security interest in the goods supplied by Pulsetech and the proceeds of those goods (Security Interest) without the need for any further action by any party;
(ii) Pulsetech may perfect its Security Interest by registering the Security Interest on a security register such as in Australia the Personal Property Securities Register in accordance with the Personal Property Securities Act 2009 (Cth), its regulations or any amendment or re-enactment thereof;
(iii) the Purchaser waives its right to receive notice of verification statements in relation to the registration of Pulsetech's Security Interest.
The Purchaser shall store separately, clearly mark as belonging to Pulsetech, and not use any goods supplied by Pulsetech, but not yet paid for in full, until Pulsetech receives payment in full in respect of those goods. The Purchaser shall insure such goods against damage of all kinds and theft and all risk in connection with such goods shall be the Purchaser’s. If payment is overdue Pulsetech shall be entitled to repossess any goods belonging to Pulsetech and may enter the Purchaser’s premises for this purpose.
Patents and Design Rights
(i) In the event of any successful claim or claims by any third party in respect of any infringement of letters patent, registered design, trade mark or copyright the specification of which is published prior to the date of the Contract, relating to any part of the goods supplied by Pulsetech (other than a part based on a design specified by the Purchaser) Pulsetech will at its expense either replace or modify such part with a noninfringing part or procure for the Purchaser the right to use such part provided that Pulsetech is given full opportunity to conduct all negotiations in respect of such claims, but in no event shall Pulsetech have liability for losses arising from use or non use of any infringing part. The Purchaser on its part warrants that any design or instruction furnished or given by the Purchaser shall not be such as it will cause Pulsetech to infringe any letters patent, registered design, trade mark or copyright in performing Pulsetech’s obligations under the Contract.
(ii) Patent, design rights, trade marks and copyrights relating to goods offered or supplied by Pulsetech shall remain Pulsetech’s absolute property and Pulsetech’s specifications, designs, drawings, technical data, software, instructions and manuals shall not be reproduced or disclosed without Pulsetech’s written consent. The Purchaser shall not, without Pulsetech’s written consent, copy or allow others to copy or use any specifications, designs, drawings, technical data, software, instructions or manuals supplied by Pulsetech.
Without limiting the foregoing, the Purchaser shall not reverse engineer any goods supplied by Pulsetech, nor use any specifications, designs, drawings, technical data, software, instructions, or manuals supplied by Pulsetech for the purposes of reverse engineering, and shall not permit any third parties to do any of these things.
Confidentiality
A party (the “Recipient Party”) shall keep confidential and shall not disclose to any third party any information of any kind (whether or not recorded in material form) received from the other party (the “Disclosing Party”) which is specified by the Disclosing Party as being confidential or is by its nature confidential, unless that information at the time of disclosure was already in the public domain or in the possession or knowledge of the Recipient Party without breach of the Contract, or the Recipient Party is ordered or directed by a Court of competent jurisdiction to disclose that information.
Warranty and Liability
(a) Pulsetech at its option shall repair or replace any goods manufactured and supplied by Pulsetech pursuant to the Contract in which defects appear under proper use, fair wear and tear excluded, within a period of twelve calendar months after the goods have been despatched provided that such defects arise solely from Pulsetech’s faulty design, materials or workmanship and that, at Pulsetech’s option: (i) the defective goods or parts of goods are returned by the Purchaser at the Purchaser’s cost to Pulsetech’s nominated works; or (ii) the Purchaser bears all additional costs (other than the direct cost of Pulsetech performing the repair or replacement services) associated with Pulsetech undertaking repair or replacement of the relevant goods at any other location agreed between the parties.
(b) For goods not of Pulsetech’s manufacture, Pulsetech shall use reasonable endeavours to pass on to the Purchaser such warranties (if any) as the manufacturer of such goods may provide to Pulsetech in respect of those goods.
(c) Pulsetech shall perform the services specified in the Contract (if any) in the manner and for the price specified in the Contract. Pulsetech gives no warranties and makes no representations of any kind in connection with its provision of services under the Contract including that it will or will not be able to identify any faults or defects (whether patent or latent) in any goods that Pulsetech has been engaged to inspect, service, or maintain (whether those goods were manufactured or supplied by Pulsetech, the Purchaser, or a third party) and to the extent permitted by law Pulsetech excludes all responsibility and liability arising from Pulsetech’s failure to identify or misidentification of such faults or defects.
(d) Pulsetech’s liability under this clause 11 is in lieu of any warranty or condition implied by law including as to the quality, manner of delivery, or fitness for any particular purpose of any goods or services supplied by Pulsetech. Save as provided in this clause 11 Pulsetech shall not be under any liability, whether in contract, tort or otherwise in respect of defects in goods delivered or for any injury, damage or loss resulting from such defects or from any services performed whether or not in connection with the supply of goods. All conditions or warranties not expressed in this clause 11 that, but for this clause 11(d), may have applied to or been implied into the Contract, to the extent permitted by law, are excluded.
(e) The Australian Consumer Law and similar state legislation implies certain contracts conditions that may not be excluded. If any law that may not be excluded by agreement implies into the Contract, or imposes, any guarantees conditions or warranties, the Purchaser’s exclusive remedy for any breach of such guarantees, conditions or warranties shall be at Pulsetech’s option:
(i) if the breach relates to goods, to the repair or replacement of those goods or the cost of having those goods repaired or replaced; and
(ii) if the breach relates to services, to the performance of those services again or the cost of having those services performed again.
(f) The Purchaser is solely responsible for determining the sufficiency and suitability of any goods for their intended purpose, regardless of whether the Purchaser has specified that the goods are intended to be used for a particular purpose.
(g) Notwithstanding anything else in the Contract, under no circumstances whatsoever shall Pulsetech be or be held liable or responsible:
(i) in respect of any indirect or consequential loss or damage including loss of profit or loss of opportunity; or
(ii) to the extent that any loss, damage, injury, expense, cost, claim, outgoing or other liability is caused or contributed to by any acts or omissions of the Purchaser or the Purchaser’s officers, employees, agents, representatives, partners, or contractors.
Prohibited Exports
The goods and information to be supplied under the Contract may be controlled goods subject to the Customs (Prohibited Export) Regulations of Australia. Where this is the case Pulsetech’s entering into the Contract shall be on the basis of the representations made by the Purchaser as to the end-use and the destinations of the controlled goods.
The Purchaser shall comply with the Customs (Prohibited Exports) Regulations of Australia and with all other statutes, rules, regulations, by-laws, gazetted notices and with all advices affecting the exportation or resale of goods from Australia which are prescribed or issued or otherwise brought into force by the Department of Defence or any other competent governmental authority or government at any time (“the Regulations”) including, without limiting the generality of the foregoing, any requirement of the Regulations prohibiting the export or re-export by the Purchaser, directly or indirectly, to a destination not being the specified destination without the Purchaser’s first obtaining all necessary governmental authority, in Australia and in any other country where permission is required for such export or re-export.
Legal Construction
The Contract shall be governed by and construed in accordance with the law of the State of New South Wales, Australia.