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General Conditions

Terms and Conditions of Sale

1. DEFINITIONS & INTERPRETATION
1.1 Definitions

        “Buyer” means the person who buys or agrees to buy the goods from the Company whose name and address are set out in the box marked “Buyer” overleaf.

        “Company” means Klingspor Australia Pty Limited ACN 092 623 142.

        “Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Company.

        “Delivery” means when the Product is loaded and dispatched from the Company’s warehouse or the commencement date for the performance of services.

        “Delivery Date” means the date or range of dates set out overleaf which is specified by the Company when or within which range the Product is to be delivered.

        “Price” means the Company’s quoted price or the price set out overleaf at which the Buyer agrees to buy the Product.

        “Product” means the goods which the Buyer agrees to buy from the Company in the quantity specified overleaf.

1.2 Interpretation

The following rules of interpretation shall apply to this Agreement:

Words importing the singular will include the plural and vice versa and words importing any gender will include all genders and words importing a person shall include any other entity recognised by law and vice versa.
Where the day on or by which any act matter or thing is required to be done is a day other than a Business Day in the place in which the act matter or thing is to be done, such act matter or thing shall be done on the next succeeding Business Day unless specifically provided for to the contrary in this Agreement.
Headings and underlinings are for convenience only and do not affect the interpretation of this Agreement.

2. CONDITIONS APPLICABLE

2.1  These conditions shall apply to all contracts for the sale of Product by the Company to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document.

2.2  All orders for Product shall be deemed to be an offer by the Buyer to purchase Product pursuant to these Conditions.

2.3  Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Company.

3.THE PRICE AND PAYMENT

3.1  The Price shall be the Company’s quoted price or, if these terms are affixed to a purchase agreement or order confirmation, the price set out overleaf.

3.2  Unless otherwise stated all prices quoted by vendor are net, exclusive of Goods and Services Tax (GST).

3.3  The minimum value for all orders made by the Buyer to purchase Product from the Company shall be one hundred and seventy dollars ($170.00) plus GST.

3.4  The Company may after acceptance of a customer’s order, by giving notice to the Buyer at any time up to fourteen (14) days before delivery, increase the Price of the Product to reflect any increase in the cost to the Company which is due to factors occurring after the making of this Sales Agreement which are beyond the reasonable control of the Company (including, without limitation, foreign exchange fluctuations, taxes and duties and the cost of labour, materials and other manufacturing, transportation, and transportation related costs) provided that any such increase shall be limited to two per cent (2%) of the agreed Price. Foregoing clause 3.4 does not affect Company’s right to adjust its pricing before acceptance of an order.

3.5  Payment of the Price shall be due within thirty (30) days of the date of statement and time for payment shall be of the essence.

3.6  Interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of fifteen per cent (15%) p.a. and shall accrue at such rate after as well as before any judgment.

3.7  The Buyer acknowledges and agrees any expenses costs or disbursements incurred by the Company in recovering any outstanding monies including debt collection agencies fees or legal fees, shall be recoverable from the Buyer on an indemnity basis.

3.8  Unless previously withdrawn, the Company’s quotations are open for acceptance within the period stated in them or, when no period is so stated, within fourteen (14) days only after its date.  The Company reserves the right to refuse any purchase order based on its quotation within seven (7) days after the receipt of the purchase order.

4. THE PRODUCT

4.1  The quantity and description of the Product shall be as set out respective offer, purchase agreement or order confirmation and as described in the product specifications issued by Company.

4.2  The Buyer shall take delivery of the Product tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that:

the Buyer shall have given the Company notice in writing within twenty-four (24) hours of delivery of the discrepancy in quantity;
such discrepancy in quantity shall not exceed five per cent (5%);
the Price shall be adjusted pro rata to reflect any discrepancy; and
if the Buyer fails to give notice in accordance with clause 4.2(a), the Product shall be deemed to be in all respects in accordance with this Agreement and the Buyer shall be bound to accept and pay for the Product accordingly.

5. WARRANTIES AND LIABILITIES

5.1  Any performance figures given by the Company are estimates only.  The Company is under no liability for damages for failure of the Product to attain such figures unless specifically guaranteed in writing.  Any such written guarantees are subject to the recognised tolerances applicable to such figures.

5.2  The Company warrants that the Product will at the time of delivery correspond to the description given by the Company. 

6. GUARANTEE

6.1  The Company’s liability for Product manufactured by it is limited to making good any defects by repairing the defects or at the Company’s option by replacement, within a period not exceeding twelve (12) calendar months after the Product has been dispatched so long as:

(a)   defects have arisen solely from faulty materials or workmanship;

(b)   the Product has not received maltreatment, inattention or interference;

(c) accessories of any kind used by the Buyer are manufactured by or approved by Company;

(d)   the seals of any kind on the goods remain unbroken; and

(e)   the defective parts are promptly returned free of cost to the Company.

6.2  If the Product is not manufactured by the Company the warranty and/or guarantee of the manufacturer of those goods is accepted by the Buyer and is the only warranty or guarantee given to the Buyer in respect of the Product.  The Company 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 Company under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.

6.3  The Company is not liable for and the Buyer releases the Company from any claims in respect of faulty or defective design of any product supplied unless such design has been wholly prepared by the Company and the responsibility for any claim has been specifically accepted by the Company in writing.  In any event, the Company’s liability under this Clause 6.3 is limited strictly to the replacement of defective parts in accordance with Clause 6.1 of this Agreement.

6.4  The Company excludes all express and implied conditions and warranties from these terms, except any condition or warranty (such as conditions and warranties implied by the Competition and Consumer Act 2010 (Cth) and equivalent State and Territory laws) which cannot by law be excluded (“Non-excludable Condition”).

6.5  The Company’s liability for breach of any Non-excludable Condition (to the extent such liability can be limited) arising in relation to the supply of goods other than goods of a kind ordinarily acquired for personal, domestic or household use or consumption, shall at the Company’s option be limited to:

        (a)   the replacement of the goods or resupply of the goods by the Company, or the cost of replacement or resupply of the goods; or

        (b)   the repair of the goods, or the cost of repair of the goods.

6.6  Subject to clauses 6.4 and 6.5, the Company excludes all other liability to the Buyer for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Product or arising out of the Company’s negligence or in any way whatsoever.

7. DELIVERY

7.1  The delivery times made known to the Buyer are estimates only and the Company is not be liable for late delivery or non-delivery.

7.2  The Company is not be liable for any loss and/or expense (including loss of profit), damage or delay occasioned to the Buyer or its customers arising from late or non-delivery or late installation of the Product.

7.3  The Company may at its option deliver the Product to the buyer in any number of instalments unless there is an endorsement overleaf to the effect that the buyer will not take delivery by instalments.

7.4  If the Company delivers any of the Product by instalments, and any one of those instalments is defective for any reason:

(a)   it is not a repudiation of the Sales Agreement formed by these terms and conditions; and

(b)   the defective instalment is a severable breach that gives rise only to a claim for compensation.

7.5  The Company is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Product in transit caused by any event of any kind by any person (whether or not the Company is legally responsible for the person who caused or contributed to that loss or damage).

7.6  The Company shall provide the Buyer with such assistance as may be necessary to press claims on carriers so long as the Buyer:

(a)            has notified the Company and the carriers in writing immediately after loss or damage is discovered on receipt of Product; and

(b)            lodges a claim for compensation on the carrier within twenty-four (24) hours of the date of receipt of the Product.

8. ACCEPTANCE OF THE PRODUCT

8.1  The Buyer shall be deemed to have accepted the Product upon Delivery of the Product.

8.2  After acceptance, the Buyer shall not be entitled to reject Product other than in accordance with these terms and conditions.

9. TITLE AND RISK

9.1  Subject to Clauses 9.3 to 9.15, ownership of the goods shall pass on Delivery of the Product.

9.2  The Product shall be at the Buyer’s risk as from Delivery.

9.3  Notwithstanding that Delivery has already been made, property in the Product shall not pass from the Company until:

(a)   the Buyer shall have paid the Price in full; and

(b)   no other sums shall be due from the Buyer to the Company.

9.4  Until property in the Product passes to the Buyer in accordance with Clause 9.3, the Buyer shall hold the Product on a fiduciary basis as bailee for the Company.  The Buyer shall store the Product (at no cost to the Company) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Company’s property.

9.5  Notwithstanding that the Product remains the property of the Company, the Buyer may sell or use the Product in the ordinary course of the Buyer’s business at full market value for the account of the Company.  Any such sale or dealing shall be a sale or use of the Company’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings.  Until property in the Product passes from the Company the entire proceeds of sale or otherwise of the Product shall be held in trust for the Company and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Company’s money.

9.6  The Company shall be entitled to recover the Price notwithstanding that property in any of the Product has not passed from the Company.

9.7  Until such time as property in the Product passes from the Company, the Buyer shall upon request deliver up such of the Product as has not ceased to be in existence or resold to the Company.  If the Buyer fails to do so, the Company may enter upon any premises owned, occupied or controlled by the Buyer where the Product is situated and repossess the Product.  On the making of such request, the rights of the Buyer under clause 9.5 shall cease.

9.8  The Buyer shall insure and keep insured the Product to the full Price against all risks to the reasonable satisfaction of the Company until the date that property in the Product passes from the Company and shall, whenever requested by the Company, produce a copy of the policy of insurance.  Without prejudice to the other rights of the Company, if the Buyer fails to do so, all sums whatever owing by the Buyer to the Company shall immediately become due and payable.

9.9  The Buyer acknowledges that these terms and conditions create a security interest under the Personal Property Securities Act 2009 (Cth) (“PPSA”) in all Product previously supplied by the Company to the Buyer (if any) and all Product that will be supplied in the future by the Company to the Buyer.

9.10        In this Clause 9, the following words have the respective meanings given to them under the PPSA: accession, account, financing statement, financing change statement, register, registration, security interest and verification statement.

9.11        The Buyer must at the Company’s request, promptly execute any documents and do anything required to register the Company’s security interest in the Product under the PPSA.

9.12        The Buyer consents to the Company effecting a registration on the PPSA register (in any manner the Company considers appropriate) in relation to any security interest contemplated by these terms and conditions and the Buyer agrees to provide all assistance reasonably required to facilitate this.

9.13        The Buyer must indemnify, and upon demand reimburse, the Company for all expenses incurred in registering a financing statement or financing change statement on the PPSA register.

9.14        The Buyer must not without the prior written consent of the Company, assign or in any way grant a security interest in respect of any accounts owed to it relating to the Product which is the property of the Company. Without prejudice to the other rights of the Company, if the Buyer does so, all sums whatever owing by the Buyer to the Company shall immediately become due and payable.

9.15        So far as is permitted by the PPSA, the Buyer waives is right:

        (a)   to receive notice of a verification statement or financing change statement in relation to any registration on the PPSA register;

        (b)   to receive any notice required under the PPSA, including a notice that the Company intends to sell the Product or to retain the Product on enforcement of the security interest granted to the Company;            

        (c)   to object to a proposal by the Company to retain the Product in satisfaction of any obligation owed by the Buyer to the Company; and

        (d)   where any Product becomes an accession as defined in the PPSA, to not have any goods damaged when the Company removes the accession, to receive notice of removal of the accession and to apply to the court for an order concerning the removal of the accession, under the PPSA.

10. REMEDIES OF BUYER

10.1     Where the Buyer rejects any Product then the Buyer shall have no further rights in respect of the supply to the Buyer of such Product or the failure by the Company to supply Product which conforms to this Sale Agreement.

10.2     Where the Buyer accepts or has been deemed to have accepted any Product, the Company shall have no liability whatever to the Buyer in respect of that Product.

10.3     The Company shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Company of this Sales Agreement.

10.4     In the event of any breach of this Sales Agreement by the Company, the remedies of the Buyer shall be limited to damages.  Under no circumstances shall the liability of the Company exceed the value of the Product.

10.5     The Buyer may not withhold payment of any invoice or other amount due to the Company by reason of any right of set-off or counterclaim to which the Buyer may at any time be entitled.

10.6     If the Buyer fails to make payment for the Product in accordance with this Agreement or commits any other breach of this Agreement or if a Summons for Winding Up has been filed or a Creditor’s Petition has issued against the Buyer or if the Buyer has entered into some other form of insolvency or arrangement or scheme with its creditors whether voluntarily or otherwise, all sums outstanding in respect of the Product shall become immediately payable.  The Company may, in its absolute discretion and without prejudice to any other rights which it may have:

(a)            suspend all future deliveries of Product to the Buyer and/or terminate this Agreement without liability upon its part; and/or

(b)   exercise any of its rights pursuant to Clauses 9.3 to 9.9 inclusive.

11. REBATES AND ASSOCIATED AGREEMENTS

If the Buyer is a member of more than one buying group and therefore entitle to rebates and associated costs, they must nominate which buying group's terms they wish to apply to their Klingspor account. The Buyer cannot claim more than one rebate or associated costs for the same financial transaction with Klingspor. If the Buyer does not nominate a buying group for the rebate or associated cost, Klingspor will nominate a buying group at its discretion.

12. SEVERANCE

If any provision or part of any provision of this Agreement is or may be void or unenforceable, such invalidity or unenforceability shall be deemed severable and shall not affect any other part of such provision or any other provision of this contract.

13. NO WAIVER

No waiver or forbearance by the Company (whether express or implied) in enforcing this Agreement shall prejudice its right to do so in the future.

14. FORCE MAJEURE

The Company shall not be liable for any default of its obligations under this Agreement due to any act of God, war, strike, lockout, industrial action, fire, flood, drought, tempest or other event beyond its reasonable control.

15. GOVERNING LAW

The parties agree that this Agreement shall be governed by the laws applicable in the State of New South Wales and agree to submit to the jurisdiction of the Supreme Court of New South Wales and any relevant Court of Australian Federal jurisdiction.