TERMS AND CONDITIONS OF SALE
The terms of this agreement commence upon acceptance of your original quotation from Smokeshield Australia P/L.
All orders require full payment up front prior to any work being started, unless alternative payment terms are agreed to in writing.
For customers that are granted payment terms, the agreed payment terms must be adhered to or late payment fees referred to in the “Late Payments” clause will be applicable.
You can cancel an order in writing within seven (7) days of making that order but in such a case we will retain an amount of 10% of the order value as a cancellation fee, but you have no right to cancel your order after seven (7) days of making that order.
If any amount due to us is not paid on the due date, you will pay interest to Smokeshield Australia P/L on the amount not paid under that invoice
(Overdue Amount). Interest on any Overdue Amount will be calculated monthly, at the rate of eighteen (18%) percent per annum on the Overdue Amount, from and including the due date to and including the date that we receive the Overdue Amount.
Acceptance of Quotations
The quotation is in accordance with the scope of works. By accepting the scope of works any variation thereafter is additional to the original quotation.
When are the Goods delivered to you?
(a) You acknowledge delivery and acceptance of the Goods as stated in our original quotation;
(b) We endeavour to deliver as per our delivery time specified at time of order but will not be held responsible for any delays;
(c) Please Note: Container orders unable to be delivered due to issues beyond the control of Smokeshield Australia P/L, for example, your site is inaccessible or dangerous or the ground unstable. In accordance with our delivery procedure you will be contacted on the day via the contact number you have supplied for yourself or the nominated site contact. If you are unavailable on the nominated contact number and the delivery cannot proceed a futile charge may be applicable at our discretion. This charge is generally the delivery price doubled as the truck will be required to return the container back to our depot;
(d) Waiting time as a result of delivery delays outside the control of Smokeshield Australia P/L may be charged at a rate of $150 + (10%) GST per hour.
Retention of title
You acknowledge and agree that title to the Goods sold to you will only pass or be transferred to you when we receive payment in full of all money owing to Smokeshield Australia P/L in relation to the Goods. Until we receive payment of such money you will hold the Goods, at our sole discretion, as bailee only. Prior to receipt by Smokeshield Australia P/L of the full Purchase Price you must:
(a) Not intermingle the Goods with any other property;
(b) Change the Goods in any way;
(c) Not change or obscure in any way any identification marking that we have placed on the Goods by lettering and numbering;
(d) Not sell the Goods except to a bona fide purchaser for full value;
(e) Keep all proceeds from the sale of the Goods in trust for, and on, our behalf in a separate trust account;
(f) Promptly pay the proceeds of any sale of the Goods to Smokeshield Australia P/L. The payment of the proceeds from the sale of the Goods by you does not relieve you of your obligation to pay to Smokeshield Australia P/L the full Purchase Price.
What are our rights if you commit a breach?
If you fail to pay any amount payable by you to Smokeshield Australia P/L under these terms and conditions on the due date or you cease doing business, become insolvent, commit an act of bankruptcy or become the subject of any proceeding under any bankruptcy act, or its counterpart under the law of any territory outside of the jurisdiction of Australia, then without limiting our rights or remedies in any way we may (but are not obliged to) immediately without notice to you and without releasing you from any accrued obligations do one or more of the following:
(a) terminate this agreement for the sale of the Goods to you;
(b) declare the balance of the Purchase Price due and payable by you;
(c) retake possession of the Goods; and
(d) remedy any default that you commit under these terms and conditions (at your cost).
Your rights to possession of the Goods cease
Despite any provision in these terms and conditions to the contrary, in the event that we terminate this agreement for the sale of the Goods to you, you will no longer be entitled to Possession of the Goods with our consent and you must immediately return the goods to Smokeshield Australia P/L (at your cost) and nothing in these terms and conditions gives you any express or implied right or entitlement to, and you must not attempt or accordance with the terms of these terms and conditions. After we terminate the agreement for the sale of the Goods to you, purport to, sell, services, lease, encumber, grant any right or interest (of any nature) in or over the Goods.
Right to recover Goods
If and when this agreement for the sale of the Goods to you is terminated for breach by you, you hereby irrevocably authorize Smokeshield Australia P/L to enter upon any property occupied by you, and to use such reasonably force as may be necessary, for the purpose of removal of any Goods sold to you by Smokeshield Australia P/L and to do so at your cost.
What happens to property attached to the Goods?
In the event that we retake possession of all or any part of the Goods, you hereby irrevocably authorize Smokeshield Australia P/L to take possession
of any property in, on or attached to the Goods which is not our property, and you acknowledge and agree that we are not liable for its care or safekeeping.
EXCLUSION OF WARRANTIES
State of the Equipment
In the event of any dispute as to the supplied goods condition and/or specifications we will review your original quotation and your tax invoice as this is seen as your order. All of our products including Mods & Accessories are in accordance with our design criteria and will automatically be accepted as compliant within the scope of work at time of order.
Specific warranties excluded
Without limiting paragraph (b) in the preceding condition, we make no express or implied warranty in relation to:
(a) the fitness of the Goods for any particular purpose;
(b) the merchantability of the Goods; or
(c) the description, state, quality or condition of the Goods.
Exclusion of warranties
To the full extent permitted by law, we exclude and are not liable for any condition or warranty (of any kind) which is not expressly set out in these terms and conditions.
Limitation of Liability
You agree that if you suffer a loss (including economic loss), damage, cost, expense or claim howsoever arising as a result of the use of the Goods including without limitation any defect in the Goods, our liability to you is limited to the repair or replacement of the Goods.
We are not liable under any circumstances for any direct, indirect, economic, special or consequential loss or damage of any nature whatsoever that you may suffer from the use of the Goods.
These terms and conditions are binding upon you and Smokeshield Australia P/L, your and our successors and assigns and will be governed by the laws of Victoria. If you take possession of or retain any Goods after the provision of these terms and conditions, these terms and conditions are valid and binding on you whether or not you have signed them.
If there is any inconsistency between the terms set out in this invoice and the terms of any other document or quote provided to you, the terms and conditions in this invoice will prevail but only to the extent of the inconsistency.
Waiver of rights
No failure to exercise nor delay in exercising any right, power or remedy by Smokeshield Australia P/L operate as a waiver.
Our rights under these terms and conditions are in addition to, and do not exclude, any right at common law, equity or any other agreement between you and Smokeshield Australia P/L.
You agree to:
(a) Execute and deliver any instruments; and
(b) do such other things, as we may at any time request in connection with the enforcement of our rights under these terms and conditions.
Warranty Periods on Sold Goods
SmokeShield warrants all goods delivered to be free from material defects in design, material, and workmanship under normal use. The warranty period, which is calculated from the date of delivery, is as follows:
a) New goods – Smokecloak: 24 Months (The warranty is subject to the customer changing the fluid for every 12 months’ operation.)
b) New goods – Fire Trainer: 50 Months *
c) New goods – Trifire: 120 Months **
d) New goods – Security: 12 Months
e) New goods – Electrical: 12 Months
f) Labour and Workmanship: 3 Months
g) Spare parts: 3 months
h) Warranty repairs: The remainder of the warranty period or 6 months, whichever is the longer
i) Consumables: No warranty
j) Repaired second-hand goods: 3 months
k) Un-repaired second-hand goods: No warranty
SmokeShield will remedy all defects covered by the warranty by repairing or replacing the defective goods or parts thereof at SmokeShield’s sole discretion.
If the customer can be reasonably expected to be able to repair the defective goods, using if necessary, the advice of SmokeShield’s technical department, SmokeShield may fulfil its warranty obligations by sending the necessary replacement parts to the customer free of charge.
If the customer cannot be reasonably expected to be able to do the repair, the customer shall return the defective goods or parts thereof to SmokeShield, and SmokeShield shall repair the goods or parts or replace them at its own expense and risk.
SmokeShield shall arrange for transportation of the return goods, and the transportation shall be at purchasers’ expense and risk.
All defects covered by the warranty must be notified to SmokeShield’s headquarter in Oakleigh South Victoria, Australia by e-mail at [email protected] immediately after the defects were discovered, failing which the customer shall be deemed to have waived his right to rely on the warranty.
The warranty does not cover defects due to normal wear and tear, use of fluid other than original SmokeShield Fluid and external causes such as accident, abuse, misuse, modifications, or results of Acts of God such as lightning strikes, earthquakes, flood, terror, and other circumstances outside the reasonable control of SmokeShield.
Except in the case of gross negligence on the part of SmokeShield, the customer shall have no other remedies in connection with defective goods than the warranty rights pursuant above.
* Warranty is limited to the correct operation and maintenance of Trainers, Correct fluid supplied only by Smokeshield Australia can be used and all other fluids will void all warranty. Broken seals will void warranty.
** Warranty is limited to Metalwork and Frame only, all internal components, battery, gas lines, solenoids, connectors and couplings are not covered under the 10 year warranty and are limited to 12 Months.