Sale Conditions




1. General

These written terms:-

(a) apply to all offers to sell (quotations) and agreements for the supply of goods and services by ESQ;

(b) shall be the only terms of any agreement able to be accepted by a Purchaser unless other terms are agreed to and signed by ESQ.

(c) apply notwithstanding any term to the contrary which may appear in the Purchaser’s printed terms or conditions of business.

2. Quotations

(a) ESQ may vary any quoted price without notice if the price of any item varies because of changes in currency exchange rates, government charges, import duties, transportation costs, or any other rates, charges, duties or costs.

(b) The price quoted does not include G.S.T. unless specifically mentioned in our written quotation or any other charges or duties payable on or for any item and, if applicable to any quoted item, will be to the account of the Purchaser.

(c) The price quoted does not make any allowance for retentions to be held or liquidated damages unless ESQ signifies in writing that it agrees to one or the other or both.

3. Payment and Credit

(a) Payment is by cash on delivery unless an ESQ credit facility has been approved. A credit facility is at the absolute discretion of ESQ and requires:

(i) the Purchaser to accept these Terms of Sale;

(ii) the continued validity of the trade references accompanying the credit facility; and

(iii) compliance with the terms of any ESQ credit facility.

(iv) where the credit facility is provided pursuant to a Building Contract or a Building Subcontract all payments will be in accordance with the provisions for payment in the Queensland Building Services Authority Amendment Act 1999 and/or the Building and Construction Industry Payments Act 2004 (Qld)

(b) ESQ may at any time refuse or withdraw any credit facility.

(c) Where the Purchaser has been granted a credit facility then the accounts must be paid in accordance with the payment conditions of the Building and Construction Industry Payments Act 2004 (Qld)

4. Delivery

(a) In the event of the Purchaser returning goods or failing to accept any delivery tendered in accordance with these Terms of Sale ESQ shall be entitled to invoice the Purchaser for the goods returned or tendered and to treat the remainder of the Contract (if any) as cancelled by the Purchaser.

(b) ESQ shall, for any period of 60 days from the delivery date, be entitled to store at the risk of the Purchaser any goods of which the Purchaser fails to take delivery. In such a case the Purchaser shall, in addition to the invoice prices (and without prejudice to any other damages for which it may be liable) pay all costs of storage and transport.

5. The Obligation To Insure the Risk of Transport

(a) Either ESQ or the Purchaser, as indicated on the front page of these Terms of Sale, shall take all risks associated with the transportation of the goods to the Delivery Point. That party shall take out insurance cover in a sum no less than the quoted price for the goods.

(b) Where the Purchaser is to take the risk of transportation and the goods are damaged or lost in transit then the Purchaser:

(i) will at the same time acquire immediate ownership of the goods;

(ii) within seven (7) days of the date of the damage or destruction to such goods pay ESQ the quoted price of the goods;

(iii) within seven (7) days of the date of damage or being lost may choose whether to place a further order for goods of the same or similar kind. Any further order by the Purchaser of goods shall be considered a new contract.

(c) Where ESQ takes the risk of the transportation and the goods are damaged or lost in transit, ESQ shall not be liable:

(i) for any loss or damage caused;

(ii) to replace any goods;

unless ESQ is notified of such damage or the loss of goods within four (4) days of the Delivery Date.

6. Variation of design

ESQ hereby reserves the right at any time to make such alteration to the specifications, design or construction of the goods as ESQ shall in its own discretion deem fit provided always that:

(a) the goods shall remain of merchantable quality; or

(b) sufficient for the purpose of the Purchaser if the Purchaser shall have previously informed ESQ in writing of that purpose.Small deviations or variations from particulars of goods shall not give rise to any claims.

(a) The Purchaser shall only own the goods when ESQ has received payment in full of the total price of the goods. If payment is by cheque the Purchaser shall not obtain ownership unless and until any cheque is negotiated.

7. Ownership

(b) Until payment, the goods, being still owned by ESQ must be stored, displayed and held by the Purchaser in such a way as to clearly indicate that the goods are owned by ESQ until the transfer of ownership in the goods. The Purchaser will be liable to ESQ for all damage sustained to the goods from any cause whatsoever whilst the goods are in the Purchaser’s possession.

(c) All payments made on account shall in the case of default of the entire amount due, be deemed for the use and wear of the goods whilst in the Purchaser’s possession.

(d) Should some or all of the goods be for the production of or become a component in and of another thing, (the “new goods”) the Purchaser agrees that ESQ becomes the owner of the new goods.

(e) Until payment the Purchaser shall keep the goods and any new goods in the capacity of fiduciary for ESQ. All rights of the Purchaser, whether express or implied, allowing the passing by the Purchaser of ownership in the goods or the new goods and whether as Purchaser factor or otherwise, shall only arise and be good and effectual as and from payment.

8. Licence to Enter Premises and Indemnity

The Purchaser grants ESQ an irrevocable licence to enter upon any premises occupied by the Purchaser to recover any goods or new goods which are or remain owned by ESQ and which are believed to be on the premises. The Purchaser agrees to indemnify ESQ and hold ESQ harmless against all liabilities and legal proceedings, claims, demands, costs, and expenses whatsoever which may be taken or made against ESQ or incurred or become payable by ESQ for any entry byESQ, its servants or agents upon such premises.

9. Costs of Recovery of Goods

ESQ shall be entitled to recover from the Purchaser the reasonable handling charges for the recovery of goods sold to the Purchaser but not paid for under the terms of these Terms of Sale.

10. Legal Costs

Where ESQ has to take legal action to recover any goods or monies due to it the Purchaser agrees to pay ESQ’s legal costs on a Solicitor and own client basis.

11. Interest on Due Accounts

The Purchaser agrees to pay ESQ interest at the rates from time to time published by National Australia Bank Ltd as it’s base rate plus 2% per annum on all monies not paid on the due date.

12. Goods to be Used by a Purchaser in Work Done by a Purchaser Pursuant to a Building Contract or a Building Subcontract

Where the Purchaser is to install or fix the goods purchased into a building as a consequence of the Purchaser’s obligations under a Building Contract or Subcontract then:

(a) To the extent that the goods must comply with any terms of a specification or any terms in any Building Contract or Subcontract entered into by the Purchaser ESQ will not be bound by those terms unless ESQ agrees in writing to be so bound. The only way in which ESQ can be bound by those terms is if:

(i) a full copy of those terms is sent to ESQ;

(ii) ESQ signifies in writing that it agrees to be bound by those terms.

(b) To the extent to which there is any conflict or inconsistency between ESQ’s obligations under these Terms of Sale and those imposed by any terms in any or Building Contract specification to which ESQ might agree then the terms of these Terms of Sale shall always prevail and any such conflicting or consistent obligation will not bind ESQ in any way whatsoever.

(c) The Purchaser must at the time of ordering the goods provide ESQ with all that information required in items 1, 2, 3, and 4 of the “Building Contract Details”.

13. Limited Product Warranty

(a) ESQ warrants, subject to the following provisions of the clause, that the goods sold pursuant to these Terms of Sale are and will be free from defects in design, material and workmanship for a period of twelve months from the date of delivery.

(b) Where and to the extent to which ESQ is entitled by law to limit its liability for breach of the warranty given by 13(a) or any warranty implied by law its liability for any such breach shall be limited to, in its absolute discretion, any one of the following:

(i) replacement of the goods;

(ii) supply of equivalent goods;

(iii) repair of the goods;

(iv) payment of the cost of replacing the goods or for acquiring any equivalent goods; or

(v) the payment of the cost of having the goods repaired.

(c) During the twelve month period during which ESQ is liable for the warranty given in this Clause 13(a) that liability:

(i) does not include any liability for any damage caused to any property, thing or person;

(ii) does not include any liability for consequential economic loss or damage of any kind

(iii) extends to the replacement, further supply or repair of any goods of but only to the same extent as that given for the goods initially supplied;

(iv) does not include any lose or damage rising directly or indirectly out of:

-the use of the goods;

-any defect in the goods;

-the failure or omission on the part of ESQ to comply with its obligations under this Agreement;

-the failure or the omission on the part of ESQ or any officer,agent or employee of ESQ to comply with any obligations imposed by law; or

-the reckless or negligent conduct of ESQ or any officer, agent or employee of ESQ.

(v) only arises after the Purchaser has shown that any defect in the goods is a defect which was not caused or contributed by:

-not installing the goods in accordance with the Manufacturer’s recommendations;

-not installing the goods in accordance with any other applicable standards or laws;

-not maintaining the goods in accordance with the Manufacturer’s recommendations;

-not maintaining the goods in accordance with any other applicable standards or laws.

14. Time for Notice of Complaint

(a) All complaints from the Purchaser to ESQ that the goods delivered do not correspond with the goods ordered shall be made in writing within seven days of delivery.

(b) If no complaint is made thereafter the Purchaser will be deemed to have accepted the goods for delivery.

15. Delay in Delivery

ESQ shall not be liable for any loss (including economic loss) sustained by the Purchaser through delay in delivering the goods ordered where such delay is caused by any circumstance outside ESQ’s control.

16. Ending of Agreement

If the Purchaser:

(a) enters into any deed of arrangement, composition or assignment; or

(b) commits an act of bankruptcy; or

(c) compounds with his creditors; or

(d) if a sequestration order is made against him or (being a company) the company:

(i) passes a resolution for voluntary winding up (otherwise than for the purpose of amalgamation or reconstruction); or

(ii) shall have a petition for winding-up presented against it; or

(e) if a Receiver shall be appointed for the whole or any part of its undertaking;

ESQ may:

(i) stop any goods in transit;

(ii) suspend deliveries and any further performance of the Contract;

(iii) without prejudice to the generality of the foregoing by Notice in writing to the Purchaser forthwith determine the Contract (without prejudice to any existing claims of ESQ at the time of determination).

17. Waiver

The failure by either party to exercise or enforce any right conferred by these Terms of Sale shall not be a waiver of any such right nor prevent the exercise or any right at any later time.

18. Notice

Any notice required to be given in writing shall be deemed to have been duly given if sent or transmitted by pre-paid post, telex, telegraph or facsimile to the party concerned at his principal place of business or last known address.

19. Governing Law

These Terms of Sale shall in all respects be governed by the laws of Queensland and any dispute shall be heard and determined in Queensland.

20. Interpretation

Words importing the singular import the plural number and words importing the plural import the singular and any gender includes all genders.

21 Entire Agreement

All previous agreements and understanding, except those contained in the written ESQ credit facility are superseded by these Terms of Sale. No modification of these Terms of Sale shall be binding unless in writing duly signed by an authorised representative of both parties.