Delivery And Installation
1. The Purchaser must deliver an acceptance certificate in the form provided by Delta when the Goods are delivered to it. This will be taken to be delivery of the Goods by Delta and acceptance of the Goods by the Purchaser for the purposes of this agreement.
2. Delta is not liable for failure or delay in obtaining delivering or installing the Goods or putting them in good working order.
Purchase Price And Reservation Of Title
3.1 The Purchaser must pay 10% of the Purchase Price to Delta on execution of this agreement. Subject to clause 3.2(b), the Purchaser must pay the remaining of the Purchase Price on start up and commissioning in the case of installation being offered orat time of invoicing in the case of supply only.
3.2 The following are separate and independent conditions of this agreement.
- Despite delivery to the Purchaser, ownership and property in the Goods, only passes from Delta to the Purchaser when payment in full (“payment”) for the Goods has been received by Delta. Until that time, the Purchaser must ensure that the Goods are readily identifiable as the property of Delta and must keep the Goods as bailee for and on behalf of Delta.
- Payment will become due immediately upon the commencement of any act or proceeding to bankrupt the Purchaser.
- If the period in clause 3.1 expires without the Purchaser paying the remaining balance of the Purchase Price, or if payment becomes due immediately under clause 3.2(b), payment must be made within 5 days of final demand in writing made by Delta. If payment is not made within that 5 days, then without prejudice to any other remedies Delta may have, the Purchaser irrevocably authorises Delta to enter the premises where the Goods are stored (“Premises”) and re-take possession of the Goods (even if they have become a fixture at common law). The Purchaser indemnifies Delta against any liability for any cost, damages and expenses arising from such repossession, including but not limited to solicitor/client legal expenses and any damage caused to the Premises. If Delta re-takes possession of the Goods in this way, Delta may then re-sell the Goods.
- Despite the above, risk passes to the Purchaser on delivery of the Goods to the Purchaser’s premises unless otherwise agreed, and the Purchaser must at it’s own expense insure the Goods against any damage howsoever caused, and must maintain that insurance until ownership and property in the Goods passes to the purchaser.
Purchaser’s Representation And Warranty
4.1 The Purchaser represents and wan-ants that all information it has given to Delta in relation to this agreement is true and correct.
4.2 The purchaser agrees that:
- In deciding to enter into this agreement the purchaser has not relied in any ‘way on Delta’s skill or judgment.
- It will examine the Goods before accepting them and will satisfy itself about the Goods, including, without limitation, that they comply with their description as well as their condition, suitability and fitness for purpose, and the validity of any manufacturer’s, dealers’ or supplier’s warranties or guarantees and entitlements to any patents.
- Delta has not made any representation, warranty or undertaking about the condition or suitability of the Goods, their quality, fitness for purpose or safety.
5.1 The purchaser has the benefit of conditions and warranties implied by the Trade Practices Act 1974 (“TPA”) and of relevant provisions of State and Territory statutes and of the Manufacturers’ Liability provisions of the TPA and nothing in these conditions is intended to exclude, restrict or modify any statutory obligation of Delta if that cannot lawfully be done.
5.2 If Delta is liable to the Purchaser through breach of any statutory provision, Delta is permitted to limit that liability. Delta’s liability is limited to any one or more of the following at Delta’s discretion:
- The replacement or repair of the Goods or payment of the cost of their replacement or repair.
- The supply or payment of the cost of supply of equivalent goods.
6. Subject to clause 5:
- All express and implied conditions, statutory or otherwise, whether collateral or otherwise which may apply to or arise out of this agreement are hereby expressly negative and excluded.
- Delta shall be under no liability to the Purchaser for any loss (including but not limited to consequential loss) or for damage to person or property or for death or injury caused by any act or omission (including negligent acts or omissions) of Delta.
Cost, Charges, Expenses And Indemnities
7. The Purchaser must pay or reimburse Delta on demand for all stamp duties, (including but not limited to any fines or penalties) which are payable in connection with this agreement.
8. The Purchaser indemnifies Delta against any liability or loss arising from, and any costs, charges and expenses incurred in connection with:
- The Purchaser’s ownership, operation or maintenance of the Goods.
- Any damage to property or death of or injury to any person of any nature or kind caused directly or indirectly by the Goods or their use.
- Any claim made against Delta in respect of the Goods or their operation or use including, without limitation, any claim for patent, trademark or copyright infringement or claim for strict liability, including, without limitation, legal costs and expenses on a full indemnity basis or solicitor and client basis, whichever is the higher.
9. Notices. A notice, consent or other communication in connection with this agreement must be in writing and left at or sent by prepaid ordinary post to the address of the party specified in this agreement or, if the addressee notifies another address to the other party, then to that address. Unless a later time is specified in it, a notice, consent or other communication takes effect from the time it is received. Proof of posting is proof of receipt on the third day after posting.
10. Certificates. A certificate signed by Delta about a matter or about a sum payable to Delta is sufficient evidence of the matter or sum stated in the certificate unless the matter or sum is proved to be false.
11. Exercise of rights. Delta may exercise a right, power or remedy at its discretion and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by Delta does not prevent a further exercise of that or of any other right, power or remedy. Failure by Delta to exercise or delay in exercising’ a right, power or remedy does not prevent its exercise. Delta is not liable for any loss caused by the exercise, attempted exercise, failure to exercise or delay in exercising a right, power or remedy whether by reason of Delta’s negligence or otherwise.
12. Waiver and variation. A provision of or a right created under this agreement may not be waived or varied except in writing, signed by the party or parties to be bound.
13. Remedies cumulative. The rights, powers and remedies provided in this agreement are cumulative with and not exclusive of the rights, powers or remedies provided by law independently of this agreement.
14. Survival of indemnities. Each indemnity in this agreement is a continuing obligation, separate and independent from the other obligations of the Purchaser and survives termination of this agreement. It is not necessary for Delta to incur expense or make payment before enforcing a right of indemnity conferrech by this agreement.
15. Completion of blanks. The Purchaser authorises Delta to complete blanks in the Schedule including, without limitation, the particulars of the Goods.
16. Governing law. This agreement is governed by the law of the place where Delta signs it. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of that place and courts of appeal from them.
17. Entire Agreement. This agreement constitutes the entire agreement of the parties in relation to its subject matter and all prior agreements, understandings and negotiations on that subject matter cease to have any effect.