Terms and Conditions
Conditions of sale for invoice form
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
1. In. these terms and conditions:
SELLER - means Emmetts Irrigation Trading as Emmetts (SA) which is the Seller of the goods.
BUYER - means the purchaser of the goods specified overleaf. GOODS - mean the equipment and, if any services, specified overleaf.
Nothing in these conditions will be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition & Consumer Act 2010) and which by law cannot be excluded, restricted or modified.
2. These conditions (which may only be waived in writing signed by the Seller) will prevail over all conditions of the Buyer’s order to the extent of any inconsistency.
Terms of sale
3. The Goods and all other products or services sold by Seller are sold on these terms and conditions.
4. Unless previously withdrawn, the Seller’s quotations are open for acceptance within the period stated in them or, when no period is so stated, within 7 days only after its date. The Seller reserves the right to refuse any order based on this quotation within 7 days after the receipt of the order.
Exclusion of implied terms
5. The Buyer acknowledges that:
(a) prior to signing this agreement, the Buyer conducted a thorough examination of the goods (for used vehicles only); and
(b) no warranty, condition, description or representation in relation to the goods is given by the Seller, expressly or impliedly by this agreement or outside this agreement.
(c) it has not relied in any way on the Seller’s skill or judgment and that the Buyer has satisfied itself as to the condition and suitability of the goods and their fitness for the Buyer’s purposes.
All warranties, terms and conditions in relation to the state, quality or fitness of the goods and of every other kind whether expressed or implied by use, statute or otherwise is excluded.
6. Any performance figures given by the Seller for the Goods (for eg hours used or work performed) are estimates only, based on information provided to the Seller. The Seller is under no liability for damages for failure of the goods if those figures are inaccurate, unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures and the manufacturer’s warranty or age of the Goods.
7. (a) The delivery times made known to the buyer are estimates only and the Seller is not held liable for late delivery or non-delivery.
(b) The Seller is not liable for any loss, damage or delay occasioned to the buyer or its customers arising from late or non-delivery or late installation of the goods.
Extent of Warranty / Guarantee
8. (a) The Seller’s liability for second hand Goods it sells is limited to making good any defects by repairing the defects within a period of one month from the date of purchase so long as:
(i) the defects have arisen solely from the Seller’s faulty materials or workmanship;
(ii) are not in the engine or drive train and which are independent of human control to detect; (iii) the Goods have not suffered maltreatment, misuse or the fault is due to fair wear and tear; (iv) the Goods have not had work done to them, or tampered with in any way; and
(v) the Goods are returned to the place of purchase.
(b) If the Goods are new, the extent of the warranty is that of the manufacturer of those goods and is accepted by the Buyer and is the only warranty given to the Buyer in respect of the goods. The Seller agrees to assign to the Buyer on request made by the Buyer the benefit of any warranty or entitlement to the goods that the manufacturer has granted to the Seller under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
(c) The Seller is not liable for and the Buyer releases the Seller from any claims in respect of faulty or defective design of any goods supplied unless such design has been wholly prepared by the Seller and the responsibility for any claim has been specifically accepted by the Seller in writing. In any event the Seller’s liability under this paragraph is limited strictly to the replacement of defective parts in accordance with clause 8(a) of these conditions.
(d) Except as provided in these conditions or in any consumer guarantees under the Australian Consumer Law, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. Other than provided under the Australian Consumer Law the Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, or operation of the goods or arising out of the Seller’s negligence or in any way whatsoever.
9. The Seller’s liability for a breach of a condition or warranty implied by Pt 3-2 Div 1 of the Australian Consumer Law is limited to: in the case of Goods, any one or more of the following:
(a)the replacement of the goods
(b)or the supply of equivalent goods;
(c)the repair of the goods;
(d)the payment of the cost of replacing the goods or of acquiring equivalent goods; the payment of the cost of having the goods repaired;
Or, in the case of services:
(a) the supplying of the services again; or
(b) the payment of the costs of having the services supplied again.
10. The Seller’s liability under s274 of the Australian Consumer Law is expressly limited to a liability to pay to the purchaser an amount equal to: (a) the cost of replacing the goods;
(b) the cost of obtaining equivalent goods; or
(c) the cost of having the goods repaired, whichever is the lowest amount.
11.(a) PPSA Notices or documents required or permitted to be given to the Buyer for the purposes of the PPSA must be given in accordance with the PPSA.
Registration on PPSR
(b) The Buyer consents to the Seller effecting a registration on the PPSR (in any manner the Seller considers appropriate) in relation to any Security Interest arising under or in connection with Goods and the Buyer agrees to provide all assistance reasonably required by the Seller to facilitate this.
Proceeds and Security Agreement
(c) The Buyer acknowledges that if the Seller’s interest under this agreement is a Security Interest for the purposes of the PPSA:
(i) that Security Interest relates to the Goods and all Proceeds of any kind;
(ii) this agreement is a security agreement for the purposes of the PPSA.
12.(a) Unless otherwise stated all prices quoted by the Seller are net, exclusive of Goods and Services Tax (GST). (b) Prices quoted are those ruling at the date of issue of quotation.
13. (a) The purchase price in relation to parts or sections of a machine are payable net and payment of the price of the goods plus GST must be made on or before delivery of the goods unless other terms of payment are expressly stated in these conditions in writing.
(b) For custom irrigation projects, the payment terms are 20% deposit, 70% prior to the components of the project landing on buyers property and 10% at commissioning when the project is completed and has been turned on for the first time
(c) As outlined on the quote, the price is quoted in USD and will be invoiced in AUD at the exchange rate of the day the payment is taken by the Seller. The Buyer can request that payment is made in USD which Emmetts Irrigation will accept as tender.
14. No order may be cancelled except with consent in writing and on terms which will indemnify the Seller against all losses. PPSA
15. The Seller reserves the following rights in relation to the goods until all accounts owed by the buyer to the seller are fully paid:
(a) ownership of the goods; to enter the buyer’s premises (or the premises of any associated company or agent where the goods are located) without liability for trespass or
any resulting damage and retake possession of the goods; and (c) to keep or resell any goods repossessed pursuant to (b) above.
If the goods are resold, the buyer will hold such part of the proceeds of any such sale as represents the invoice price of the goods sold or used in the manufacture of the goods sold in a separate identifiable account as the beneficial property of the Seller and will pay such amount to the Seller upon request. Notwithstanding the provisions above the Seller is entitled to maintain an action against the buyer for the purchase price and the risk of the goods will pass to the buyer upon delivery.
16.(a) The Seller is not under any duty to accept goods returned by the buyer and will do so only on terms to be agreed in writing in each individual case.
(b) If the Seller agrees to accept returned goods from the buyer under para (a) of this clause, the buyer must return the goods to the Seller at the Seller’s place of business referred to at the head of these conditions.
Place of contract
17.(a) The contract for sale of the goods is made in Swan Hill VIC
(b) The parties submit all disputes arising between them to the Melbourne Magistrates’ Court.
Ground works, Site Preparation, Obstructions, and Installation
18. (a) The Seller has not included ground works within the project price of the quote. Costs will need to be renegotiated if there are delays due to dial before you dig measure which is the buyers responsibility to organize, rock is hit where it was not anticipated within the digging and rock cutting tools are required, if project parameters change due to water access or bore issues. Site clearance, power and water supply is the buyers responsibility.
(b) Where a pump is pulled for repair or maintenance the seller is not responsible for the pump and pipes if sections are rusted or corroded and are not able to be pulled up as planned. Pump maintenance is done at the risk of the buyer.
(c ) delays due to site preparation , council approval or aboriginal heritage studies or overlays are not the responsibility of the Emmetts.
(d) if site access restricted by the buyer at time of build, delay costs will be charged.
(e) fencing removal or fencing changes are the responsibility of the buyer.
-The Customer acknowledges that all Intellectual Property related to the Goods and Services provided to the Customer by the Supplier remain the sole and exclusive property of the Supplier.
-The Customer must provide the Supplier free of charge access to, and use of, a 240V power source and an adequate supply of water at the site or Premises.-The Supplier will not be liable for any losses incurred due to unforeseen delays in the supply and commissioning of the equipment.
-The Customer undertakes to obtain and provide the necessary local government authority approvals for the installation of the Goods and / or the provision of Services, if necessary.
-Any and all statutory and local governments consents (including but not limited to planning or building approvals) relevant to the installation of the Goods must be obtained by the Customer at its sole cost.
-The Customer must ensure that the Supplier has free and unrestricted access to the site and Premises in order that the Supplier may provide the Goods and Services without any hindrance or obstruction.
-The Customer undertakes to put in place and keep in place for the duration of the provision of Goods and / or Services by the Supplier a public liability insurance policy in the name of the Customer only and providing the Supplier with insurance cover protecting against damage and injury to the Supplier and their equipment, their agents, employees, sub-Suppliers and invitees upon the site and Premises and the Customer hereby indemnifies the Supplier and their agents, employees, sub-Suppliers and invitees against any injuries or losses that are not recoverable under such insurance policy or in the absence of the existence of such insurance policy for any reason whatsoever.