Terms and Conditions of Sale

1. Interpretation
   1. In these Conditions, the following words shall have the following meanings:
      • Buyer: means the sole trader, firm or company who places an Order with the Seller;
      • Conditions: means these terms and conditions of sale, as they may be amended from time to time in accordance with their terms;
      • Customer Agreement: means any credit account application submitted by the Buyer to the Seller, these Conditions and any and all agreements made between the Buyer and the Seller for the supply of Goods;
      • Goods: means any goods (or calibration or part thereof) howsoever ordered by the Buyer from the Seller;
      • Guarantee: means the guarantee embedded in the Seller’s credit account application form;
      • Guarantor: means the person who enters into the Guarantee embedded in the Seller’s credit account application form;
      • Order: means any order submitted to the Seller by the Buyer for the supply of Goods and/or Services (including any such order submitted through the Seller’s Website), and “Orders” and “Ordered” will be construed accordingly;
      • Seller: means Rellum Instruments Pty Ltd (ABN: ) trading as a Triplepoint Calibrations whose office is at Unit 2, 84, Grange Road, Welland South Australia, 5007
      • Seller’s Website: means the website www.triplepoint.com.au, operated by the Seller;
      • Services: means any services (or instalment or part thereof) howsoever ordered by the Buyer from the Seller.
   2. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
2. Basis of Sale
   1. An Order shall be accepted entirely at the discretion of the Seller and if accepted will only be accepted on the basis of these Conditions which shall (together with such conditions as may be expressly incorporated by reference herein or as may be agreed in writing by the Buyer and the Seller) form the entire agreement between the Buyer and Seller in respect of the Order to the exclusion of any other conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
   2. If the Buyer places an Order through the Seller’s Website, the Seller will acknowledge receipt of the Order by sending an email to the Buyer. However, this will not mean that the Order has been accepted by the Seller. An Order will only be accepted by the Seller as described in condition 2(c).
   3. Each Order which the Seller accepts (by way only of issue of the Seller’s standard order acceptance form (either by email or in hardcopy form) or on delivery of the Goods and/or performance of the Services (as the case may be) to the Buyer’s address shown in the Order) shall constitute a separate legally binding contract between the Seller and the Buyer.
   4. No addition, variation or substitution of these Conditions shall bind the Seller or form any part of any contract unless expressly accepted in writing by an authorised representative of the Seller.
   5. The Seller’s employees or agents are not authorised to make any representations with regard to the subject matter of any contract between the Seller and the Buyer. In entering into a contract with the Seller, the Buyer acknowledges that if it relies on any representation, advice or recommendation given by the Seller, its employees or agents to the Buyer as to the Goods and/or the Services (as the case may be) it does so entirely at the Buyer’s own risk.
3. Specification
   1. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order and specification submitted by the Buyer and for checking and ensuring the accuracy of any order acknowledgment form issued by the Seller. Where an Order is submitted through the Seller’s Website, the Order process allows the Buyer to check and amend any errors before submitting the relevant Order.
   2. The Buyer shall not be entitled to rely on any typographical, clerical or other error or omission on the Seller’s Website or in any sales literature, quotations, price-list, acceptance of offer, invoice or other document or information issued by the Seller which the Buyer acknowledges shall not form part of or be incorporated by reference into any contract between the Seller and the Buyer. Any such error or omission shall be subject to correction without any liability on the part of the Seller.
   3. All Goods shown on the Seller’s Website are subject to availability. If the Buyer places an Order through the Seller’s Website, the Seller will inform the Buyer if the Goods ordered are not available and the Seller will not process the relevant Order. The Seller will endeavour to contact the Buyer to advise when the relevant Goods will be back in stock.
   4. The Seller reserves the right to make changes in the specification of the Goods and/or the Services (as the case may be) which are required to conform with any applicable statutory or regulatory requirements and which do not materially affect quality or performance.
   5. If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages costs and expenses awarded against or incurred by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which result from the Seller’s use of the Buyer’s specification.
4. Price of Goods and Services
   1. Subject to conditions 4(b) and 4(c), the price for the Goods and/or the Services (as the case may be) shall be:
      1. the Seller’s price set out in the Seller’s quotation issued in writing to the Buyer; or
      2. if Ordered through the Seller’s Website, the relevant price quoted on the Seller’s Website at the time the Order is made (subject to any discount in accordance with condition 4(h)); or
      3. in the absence of any such quotation or price, the Seller’s standard price for the Goods or Services at the time the Order is made (subject to any discount in accordance with condition 4(h);
   2. Subject to condition 2(a), any prices quoted in writing (excluding, for the avoidance of doubt, the prices quoted on the Seller’s Website) by the Seller are valid for only 30 days from the date of quotation or until earlier acceptance by the Buyer, after which they may be altered by the Seller without giving notice to the Buyer.
   3. Any quotation or estimate given by the Seller is an indication given in good faith and shall not become binding upon the Seller unless it is confirmed in writing and a corresponding Order is subsequently accepted by the Seller in accordance with these Conditions.
   4. All prices quoted are based on information available at the date of quotation. The Seller reserves the right to vary prices at any time without notice prior to the date of issue of the relevant invoice and the price payable by the Buyer shall be the price applicable at the date of the invoice. Notwithstanding the foregoing but subject to the other provisions of the Customer Agreement, if the Buyer places an Order through the Seller’s Website, the price applicable to that Order will be stated on the Seller’s Website at the time the relevant Order is placed.
   5. Unless otherwise stated, the price of the Goods and/or the Services (as the case may be) is exclusive of GST and any other taxes and the cost of carriage and any other matters all of which the Buyer shall pay to the Seller in addition.
   6. In the event of any increase in cost to the Seller which is beyond the control of the Seller (including (without limitation) any increases imposed upon the Seller by its own suppliers) and/or any variation or suspension of the work which is agreed to by the Seller upon the Buyer’s request, or if the Buyer’s instructions are incorrect or insufficient, the Seller shall be entitled to adjust the price of the Goods and/or the Services (as the case may be) to reflect the costs involved, and to adjust delivery dates as appropriate.
   7. The Seller shall be entitled to bring an action for the price of the Goods and/or the Services (as the case may be) or part thereof notwithstanding that delivery and/or performance may not have taken place and/or that ownership in the Goods has not passed to the Buyer.
   8. The Seller at its absolute discretion may decide to apply a discount in such amount as it may think fit to the price for the Goods and/or Services. The amount of any discount shall be recorded in the invoice issued to the Buyer.
5. Payment
   1. The Seller shall be entitled to invoice the Buyer for the price of the Goods and/or the Services (as the case may be) at any time prior to, on or following delivery of the Goods and/or performance of the Services (as the case may be) unless the Buyer wrongfully fails to take delivery of the Goods in which event the Seller shall be entitled to invoice the Buyer for the full amount at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
   2. Until a credit account has been opened by the Seller in favour of the Buyer (in which case the provisions of condition 6(d) shall apply), the Buyer shall pay the price for the Goods and/or the Services (as the case may be) on or prior to delivery and (where applicable) upon receipt of the Seller’s invoice.
   3. The time of payment of the price shall be of the essence of any contract between the Seller and the Buyer.
   4. A Buyer in whose favour a credit account has been opened shall, unless otherwise agreed in writing by the Seller, pay the price for the Goods and/or the Services (as the case may be) on or before the 28th day (or the next working day if the 28th day of a particular month is a Saturday or a Sunday) of the month following the date of the Seller’s invoice.
   5. Regardless of the method of payment used by the Buyer, no payment shall be deemed to have been received until the Seller has received cleared funds. All payments payable to the Seller under the contract between the Seller and the Buyer shall become due immediately on its termination despite any other provision.
   6. In the event that the Seller is, for whatever reason, unable to claim interest and/or compensation in accordance with condition 6(f), the Seller reserves the right to charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 6% (four per cent) per annum above the base rate from time to time of the Commonwealth Bank of Australia, accruing on a daily basis until payment is made in full, and for such purposes, the Buyer and the Seller agree that such rate is reasonable and reflects a genuine pre-estimate of the loss that the Seller would incur as a result of any default by the Buyer to make payment on the due date.
   7. If any payment is dishonoured or countermanded by the Buyer, the Seller shall have the right to charge the Buyer an administration fee of $10.00 (or such other fee as may be notified to the Buyer from time to time).
   8. Any claim by the Buyer that an invoice rendered by the Seller is in the incorrect amount or contains any other error must be notified to the Seller in writing within 7 days of the date of the invoice. If the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to claim that the invoice is incorrect or contains any other error whatsoever.
6. Delivery
   1. Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
   2. Any delivery date quoted is given in good faith, but the Seller shall not be responsible for any delay in delivery of the Goods and/or the performance of the Services (as the case may be) howsoever caused. Time for delivery shall not be of the essence of the contract between the Seller and the Buyer and the Seller shall not be liable for any delay in delivery howsoever caused.
   3. The Seller shall be entitled to make delivery by instalments (in which case each delivery shall constitute a separate contract), and to invoice the Buyer separately for each instalment. Failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the contract as a whole between the Seller and the Buyer as repudiated.
   4. Except in the case of delivery at the Seller’s premises, the Buyer shall at its own expense use all reasonable endeavours to ensure that the Seller is able to freely access and make any deliveries to any other place for delivery at such time(s) as may be specified by the Seller. Any failure by the Buyer to comply with the provisions of this condition or to otherwise accept delivery (save upon such grounds for rejection as are specified in the law relating to the Sale of Goods) shall be deemed to be a breach of contract. Any additional costs incurred by the Seller in re-delivering the Goods (either to the originally agreed place for delivery or to such other place as may be reasonably requested by the Buyer) will be charged to the Buyer.
   5. The quantity of any consignment of Goods as recorded by the Seller upon despatch from the Seller’s premises shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
   6. Notwithstanding the provisions of condition 7(e), the Seller shall not be liable for any under-delivery of Goods in whole or in part (even if caused by the Seller’s negligence) unless the Buyer gives written notice to the Seller of the under-delivery within 48 hours of the date when the Goods are delivered to the Buyer (as recorded by the Seller) or, if there is no such record, when the Goods would in the ordinary course of events have been received. Any liability of the Seller for under-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata contract rate against any invoice raised for such Goods.
7. Risk and Title
   1. Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery.
   2. Notwithstanding delivery and the passing of risk in the Goods, or any other provisions in these Conditions, ownership in the Goods shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and all other sums which are or which become due to the Seller from the Buyer on any account.
   3. Until ownership of the Goods has passed to the Buyer in accordance with these Conditions, the Buyer shall:
      1. hold the Goods on a fiduciary basis as the Seller’s bailee;
      2. store the Goods (at no cost to the Seller) separately from all other Goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller’s property;
      3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
      4. maintain the Goods in satisfactory condition insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller (and produce the policy of insurance to the Seller on request);
      5. hold the proceeds of the insurance referred to in condition 8(c) (iv) on trust for the Seller and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
   4. The Buyer may resell the Goods before the Seller receives payment for the Goods solely on the following conditions:
      1. any sale shall be effected in the ordinary course of the Buyer’s business at full market value;
      2. title to the Goods shall pass to the Buyer at the time and date immediately prior to the formation of the contract for the sale of the Goods (or any part of them) by the Buyer;
      3. any such sale shall be a sale of the Seller’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
   5. The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
   6. Where the Seller is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
   7. On termination of the Customer Agreement, howsoever caused, the Seller’s (but not the Buyer’s) rights contained in this condition 8 shall remain in effect.
8. Additional Terms of Guarantee
   1. This condition 9 will apply if a Guarantor has given a Guarantee on behalf of the Buyer.
   2. All sums of money which may not be recoverable from the Guarantor on the footing of the Guarantee whether by reason of legal limitation on the Buyer or any other circumstance shall nevertheless be recoverable from the Guarantor as principal debtor and shall be paid on demand.
   3. A demand for payment or any other notice to the Guarantor may be made by any authorised officer of the Seller by letter addressed to the Guarantor and delivered to its registered office or residential address and if sent by post shall be deemed to have been made at noon the following day after the letter was posted.
   4. This Guarantee shall be a continuing security and the Guarantor shall remain liable for all sums due by the Buyer notwithstanding any event which absolves the Buyer from liability. The Guarantor shall remain liable notwithstanding any alteration to the Customer Agreement or any terms applying thereto, which may be agreed between the Seller and the Buyer.
   5. Until payment in full by the Guarantor of all sums due to the Seller by the Buyer, the Guarantor shall not be entitled to participate in any security held or money received by the Seller on account of such balance.
   6. This Guarantee may be terminated and the Guarantor’s liability shall be fixed at the expiration of one calendar month after receipt by the Seller from the Guarantor of notice in writing to terminate it. It shall be lawful for the Seller to continue the account with the Buyer notwithstanding such termination and the Guarantor shall remain liable for any amount due at the date of termination of this Guarantee.
   7. The Guarantor may be released absolutely from the Guarantee upon written application to the Seller. Any such release shall be at the Seller’s absolute discretion and shall be on such terms including as to the date of release that the Seller may specify. Any settlement discharge or release between the Guarantor and the Seller shall be conditional upon no security or payment to the Seller by the Buyer or any other person being avoided or reduced due to insolvency laws or otherwise.
   8. The Seller may at any time without giving notice to or obtaining the consent of the Guarantor refuse or grant further credit to the Buyer for any period and compound with give time for payment grant other indulgence or make any other arrangements with the Buyer, give up modify exchange or abstain from perfecting or taking advantage of or enforcing any security guarantee and discharge any parties thereto and realise any securities in such manner as the Seller may think expedient.
   9. All costs charges and expenses incurred by the Seller in obtaining payment of the moneys secured under this guarantee (and so that any taxation of the Seller’s costs charges and expenses shall be on a full indemnity basis) shall be recoverable from the Guarantor as a debt.
9. Warranties and Liability
   1. The Seller warrants that, except in relation to intellectual property rights of third parties, it has good title to the Goods and (subject to the conditions set out below) the Goods shall correspond with their written specification (if any) at the time of delivery and will be free from material defects in materials and workmanship for a period of 12 months or separately stated period from delivery, provided that the Seller shall be under no liability:
      1. in respect of any defect arising from any drawing, design, specification or stipulation of the Buyer; or
      2. in respect of any defect or lack of performance arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Seller’s instructions, or misuse, alteration or repair of the Goods without the Seller’s approval; or
      3. in respect of parts or materials not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any warranty or guarantee which is given by the manufacturer to the Seller; or
      4. if the full price for the Goods has not been paid by the due date for payment.
   2. The Seller warrants that the Services will be provided using reasonable care and skill and, as far as reasonably possible, in accordance with these Conditions.
   3. Any claim by the Buyer arising from any defect in the quality or condition of the Goods or their failure to correspond with the agreed specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller in writing within 30 days of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time of the defect or failure becoming apparent. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the contract price as if the Goods had been delivered in accordance with these Conditions.
   4. Where the Seller accepts a claim made by the Buyer in respect of the Goods made in accordance with these Conditions, the Buyer’s right shall be to a full or partial credit note (in relation to Goods purchased on credit account) full or partial refund (in relation to Goods purchased by cash) or replacement or repair of the Goods (or the part(s) in question), at the Seller’s option, but the Seller shall have no further liability to the Buyer.
   5. The Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition, or other term, or any tortious act (including negligence) or any duty at common law, or under the express terms of these Conditions, or in any manner whatsoever:
      1. for any indirect, special or consequential loss or damage;
      2. for any economic loss including loss of profits, loss of business, depletion of goodwill and/or similar losses, loss of anticipated savings, loss of goods, loss of contract, loss of use, or loss of /or corruption of data or information, howsoever caused and even if foreseeable by the Seller;

      which in either case may arise out of, or in connection with the supply of the Goods and/or the Services or their use or resale by the Buyer (and whether caused by the negligence of the Seller, its employees or agents or otherwise) save as may be expressly provided in these Conditions.

   6. The entire liability of the Seller under or in connection with the contract between the Seller and the Buyer shall not exceed the price of the Goods and/or the Services (as the case may be) save as expressly provided in these Conditions.
   7. Any repair, replacement or refund of any monies made by the Seller to the Buyer shall not under any circumstances be deemed to be an admission of any liability on the part of the Seller to the Buyer (or any third party), and shall be without prejudice to the rights of the Seller which the Seller hereby reserves in full should it make any such repairs, replacements or refunds of monies.
   8. The Seller shall not be liable to the Buyer, or be deemed to be in breach of contract by reason of any delay in performing, or any failure to perform any of the Seller’s obligations in relation to any Goods and/or Services (as the case may be) if the delay or failure is due to any cause beyond the Seller’s reasonable control.