Terms and conditions of sale for registered business customers

1. INTRODUCTION

1.1 These conditions, together with the documents expressly referred to in it, tells you information about us and the legal terms and conditions (Terms) on which we sell any of the goods (Goods) listed on our website to you.

1.2 Please read these Terms carefully and make sure that you understand them, before ordering any Goods from our website. Please note that by ordering any of our Goods, you agree to be bound by these Terms and the other documents expressly referred to in it.

1.3 You should print a copy of these Terms or save them to your computer for future reference. We amend these Terms from time to time. Every time you wish to order Goods, please check these Terms to ensure you understand the terms which will apply at that time.

1.4 Any communications between us, and these Terms, shall be in the English language only.

2. INFORMATION ABOUT US

2.1 We operate the website Atlas Copco Australia. In these terms “we”, “our” and “us” means: Atlas Copco Australia Pty Limited ABN 85 620 125 153.

2.2 References to “you” and “your” when used in these Terms are to you as our registered business customer or a guest customer who is in possession of a valid and active ABN number and who is interested in ordering our Goods for its own commercial activities. By accepting the present terms and conditions, you certify that you are the end user of the Goods and that these Goods will be exclusively used in your own production or research and development in your own facility. You also certify that the Goods will not be used for any military activities and the products will be used for peaceful civil end use only. The Goods will not be used for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons. If you are not the end user, you must indicate on the order form, before placing the order, the full identity of the end user.

 

2.3 To contact us, please see our Contact page.

 

3. USE OF OUR WEBSITE

3.1 Your use of our website is governed by our Website Terms of Use. Please take the time to read these, as they include important terms which apply to you.

3.2 We only use your personal information in accordance our Privacy Policy. Please take the time to read this, as they include important terms which apply to you.

 

4. HOW THE CONTRACT IS FORMED BETWEEN YOU AND US

4.1 These Terms apply to the contract between you and us to the exclusion of any other terms that you may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

4.2 The steps you need to take to place on order on our website are shown on each product’s webpage.

4.3 Our order process allows you to check and amend any errors before submitting your order to us. Please take the time to read and check your order at each page of the order process.

4.4 After you place an order, you will receive an e-mail from us acknowledging that we have received your order. However, please note that this does not mean that your order has been accepted, whether or not your order is based on a quotation. Our acceptance of your order will take place as described in clause 4.5.

4.5 We will confirm our acceptance to you by sending you an e-mail confirming the order (Order Confirmation). The Contract between us will only be formed when we send you the Order Confirmation.

4.6 Only such Goods as are specified in our Order Confirmation are included in the scope of the contract of sale. Any representations or warranties made or given by us or anyone acting on our behalf are expressly excluded unless they are included in our Order Confirmation.

4.7 When the order is dispatched we will advise you that the Goods have been dispatched and provide a full VAT invoice.

4.8 If we are unable to supply you with a product, for example because that product is not in stock or no longer available or because of an error in the price on our website as referred to in clause 7.3, we will inform you of this by e-mail. If you have already paid for the Goods, we will refund you the full amount as soon as possible.

4.9 Once we have issued and Order Confirmation you cannot cancel or change your order (including, to avoid doubt, a delivery date or any specifications or requirements).

5. SPECIFICATIONS

5.1 All drawings, descriptive matter, weights, dimensions and specifications supplied by us are approximate only unless otherwise stated and all descriptions and illustrations contained in our catalogues, price lists and advertising matter are by way of general description, are approximate only, and in no way are binding on us. We will supply a set of certified outline drawings after conclusion of the contract and on your request if separately contracted so to do.

5.2 The images of the Goods on our website are for illustrative purposes only. Although we have made every effort to display the colours accurately, we cannot guarantee that your computer’s display of the colours accurately reflect the colour of the Goods. Your Goods may vary slightly from those images.

5.3 All Goods shown on our website are subject to availability. We will inform you by e-mail as soon as possible if Goods you have ordered are not available and we will not process your order if made.

5.4 You shall be responsible for ascertaining whether the capacity and performance of the Goods are sufficient and suitable for your purpose.

5.5 We shall not be obliged to alter the performance or features of the Goods following our Order Confirmation unless, at our absolute discretion, we agree in writing to do so and subject to the payment by you of an extra charge.

6. TESTS

Our Goods are carefully inspected, and where practicable, submitted to our standard tests at our works before dispatch.

7. PRICES

7.1 All prices quoted by us are exclusive of carriage and packing costs and exclusive of GST, unless otherwise stated.

7.2 Our prices are subject to alteration without notice and, unless otherwise agreed in writing, Goods will be sold at the prices applicable at the date of dispatch.

8. PAYMENT

8.1 Payment for the Goods is made when you place your order with us.

9. DELIVERY

9.1 We shall endeavour to deliver the Goods within the time stated in our Order Confirmation or otherwise agreed by us, but we shall not be liable for late delivery. In the event of late delivery, we shall have no liability and delay in delivery shall in no case entitle you to cancel the order unless such cancellation is agreed by us in writing.

9.2 If you fail to give us proper delivery instructions when required or to accept delivery of the Goods when tendered in accordance with these Terms, you shall be liable for all storage and other costs incurred by us as the result of such failure which shall be immediately due and payable on demand, but such liability shall not affect your obligation to purchase the Goods and our right to claim damages for breach of such obligation.

9.3 In the event that the Goods are delivered at a time and place agreed with you but you or your representative is not present when the Goods are so delivered we reserve the right to deposit such Goods at the specified place and shall have no liability in respect of loss or damage resulting therefrom.

10. DAMAGE IN TRANSIT

10.1 We shall have no liability in respect of Goods lost or damaged in transit unless such loss or damage shall occur prior to delivery and:

10.1.1 in the case of a whole consignment failing to arrive, you give us notice in writing within 14 days of receipt of our invoice or dispatch note; or

10.1.2 in any other case, you give us notice in writing within seven days of the receipt of the Goods.

10.2 Subject to paragraph 10.1, our liability in respect of Goods lost in transit shall be limited to replacing such Goods and our liability in respect of Goods damaged in transit shall be determined in accordance with clauses 11 and 13.

11. ACCEPTANCE

11.1 You shall not be entitled to reject the Goods unless:

11.1.1 within 14 days after delivery of the Goods you give us notice in writing that the Goods are defective;

11.1.2 you shall have provided us with such access to the Goods as we require and we have failed to remedy the defect within 14 days after receipt of your notice or such longer period as agreed between us;

11.1.3 the defect materially affects the performance of the Goods; and

11.1.4 the defect is covered by our guarantee in clause 13.

11.2 In the event that you reject the Goods, we shall have no liability to you except for the return of any payments you made to us in respect of the purchase of the Goods.

12. TITLE AND RISK

12.1 We shall retain title to the Goods until you have paid us in full for all sums due to us on any account whatsoever.

12.2 Clause 12.1 shall not prevent you from embodying the Goods in any products so long as they remain identifiable or from selling the Goods or any products embodying the Goods but, in the event of such sale (to the extent of your indebtedness to us in respect of the Goods) you:

12.2.1 shall hold the proceeds of sale or the right to receive the same on trust for us;

12.2.2 shall place the proceeds of sale in a separate account you control in such a way as to be identifiable as in our beneficial ownership; and

12.2.3 at our request, shall assign the right to receive the proceeds of sale to us.

12.3 In the event that you suffer any distress or execution to be levied against you or entering into any arrangement with your creditors or (being an individual) becoming subject to the bankruptcy laws or (being a company) entering into liquidation otherwise than for the purposes of amalgamation or reconstruction or having a receiver appointed of the whole or any part of its assets, we, without prejudice to our other rights under these Terms, shall be entitled to enter upon any land or premises where the Goods or any products embodying the Goods may be for the time being, to detach the Goods if so embodied and to recover possession of them.

12.4 The risk in the Goods shall pass to you on delivery.

13. GUARANTEE AND LIMITATION OF LIABILITY

13.1 The provisions of this clause shall apply except insofar as any statute or regulation shall provide to the contrary and shall not affect your statutory rights.

13.2 Subject to clauses 10.1 and 11, we shall, at our option, repair, replace or credit you with the whole or a due proportion of the purchase price of any Goods supplied to you by us in respect of which any defect shall arise due to faulty materials or workmanship, provided that:

13.2.1 the defect becomes apparent within 12 months from the date of delivery;

13.2.2 you give notice of the defect to us in writing within 14 days after the defect becomes apparent;

13.2.3 the defect is not attributable to misuse, failure to comply with our instructions regarding storage, operation or maintenance, damage caused by any factors beyond our control, or fair wear and tear;

13.2.4 the Goods have not been repaired or altered without our written approval; and

13.2.5 you provide us with such access to the Goods as we require or, at our request, return the Goods to us for inspection.

13.3 We shall have no liability to you for any information or advice given to you in connection with the Goods, unless confirmed in the Order Confirmation.

13.4 Except as provided in clauses 10, 11 and 13, we shall have no liability to you in respect of any defect in the Goods, and all conditions and warranties, whether express or implied, as to the quality of the Goods, their fitness for any particular purpose, or their design, manufacture, materials, components, specification and performance are excluded. Further, we shall have no liability for any loss of production, loss of profit, loss of use, loss of contracts or any other consequential, economic or indirect loss whatsoever suffered by you as a result of any defect in the Goods.

13.5 We shall have no liability to any third party for any injury, damage or loss caused directly or indirectly by the Goods, whether as a result of their operation or use or otherwise and whether as a result of any defect therein or otherwise, and you shall indemnify us against any claim arising from any such injury, damage or loss.

13.6 Our total liability for loss or damage of any kind not excluded by any other provision in this contract is limited in aggregate for any and all claims to the price of the Goods.

14. RETURNS

Returns of Goods not suffering from defects will only be accepted by us with our prior written agreement. All items which are accepted as returns will be subject to a handling charge, and must be forwarded to our address listed at clause 2.1 at your expense.

15. FORCE MAJEURE

Notwithstanding the provisions of any other term of the contract, a party shall not be regarded as in breach thereof to the extent that such party is prevented from or hindered in fulfilling its obligations by any circumstances outside its reasonable control (including strikes, lockouts, shortages of materials, delays in transportation or governmental regulations) provided that such party shall have given written notice to the other party of such circumstances within a reasonable time after learning of them. If such circumstances shall continue to prevent or hinder the performance of the contract by such party for more than three months then the other party may by written notice terminate the contract with regard to the unperformed portion thereof.

16. LEGAL CONSTRUCTION

The contract shall in all respects be governed by and construed in accordance with the laws of New South Wales, Australia.  The parties submit to the non-exclusive jurisdiction of the courts of New South Wales, Australia.

17. CONFIDENTIAL INFORMATION & INTELLECTUAL PROPERTY

17.1 A party must keep the other party’s confidential information confidential and only disclose or use it to meet its obligations under this contract.  We may disclose confidential information to our Related Bodies Corporate (as that term is defined in the Corporations Act 2001 (Cth).

17.2 Before a party discloses confidential information to a third party, they must tell them that it is the other party’s confidential information and that it must only be used to assist the disclosing party to meet its obligations under this contract.

17.3 If we give you any material or information of any kind (including mauals and maintenance procedures) (Our Material), you can only use it for the purposes of this contract.  We reserve all other rights in it.

17.4 Without limiting clause 17.3, you must not use (or allow anyone else, including a service provider, to use) any of Our Material to: (i) work on any of our Goods (including to perform maintenance) other than where the work is permitted by clause 17.5  below; or (ii) create a document (including a maintenance schedule or a repair manual).

17.5 You may use documents that we provide with a Good to perform maintenance or repair work on that Good.

18. PPSA

 

18.1 You acknowledge and agree that:

18.1.1 this contract is a security agreement, and creates a purchase money security interest in our favour (Security Interest), in accordance with the Personal Property Securities Act 2009 (Cwlth) (PPSA);

18.1.2 value has been given to you for the Security Interest or you have done an act by which it has arisen;

18.1.3 we may register a financing statement for the Security Interest;

18.1.4 you waive your right to receive a registration event notice;

18.1.5 the collateral is a class (“Other Goods” (non inventory, commercial property)) comprising all goods supplied under this contract; and

18.1.6 PPSA Sections 95, 130, 132(3)(d), 132(4), 135 and 143 will not apply.

18.2 You:

18.2.1 must not do (or fail to do) anything which could (or does) interfere with (or affect) a security interest of ours (including a right to enforce or register one);

18.2.2 must assist us in registering, perfecting, enforcing or otherwise dealing with a security interest of ours or any of our other rights; and

18.2.3 must (if you breach this clause 18.2) comply with our instructions as to the treatment of any goods provided under this contract (including procuring access to third party premises).

18.3 Each of clauses 18.1.1. to 18.1.6 and 18.2.1 to 18.2.3 are severable without affecting the others in any way. This clause 18 does not affect any other security interests or limit our rights or remedies under the PPSA.

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