1. Definitions
    • “The Buyer” means the person named in this Contract as the purchaser.
    • “The Seller” means Omega Technical Services Pty Ltd.
    • “The Goods” means the goods and merchandise supplied or the services provided by the Seller as described in this Contract and any replacement Goods provided by the Seller in substitution for those Goods and includes all accessories and other equipment attached to the Goods described.
    • “The Price” means the purchase price of Goods as defined in clause 1.3
    • “The Interest Rate” shall be two (2) percentage points more than the current Reserve Bank of Australia for Small Business; Variable Small Overdraft (Identified as FILRSBVSO in Table F5 – Lending Rates).
    • “The Contract” means any Contract incorporating these terms and conditions. A reference to the Contract includes a reference to these terms and conditions as varied by the Contract.
  2. Acceptance
    • The Buyer agrees that the Buyer is bound by these terms and conditions and accepts these terms and conditions without alteration or erasure (including, without limitation, the security agreement contained in these terms and conditions) by doing any of the following:
      • signing a document containing these terms and conditions;
      • signing an order form that refers to these terms and conditions; or
      • making payment of an invoice / proforma invoice that refers to these terms and conditions; or
      • by accepting delivery of, or taking possession of, any Goods.
    • Where the Buyer comprises more than one person each of those persons shall be jointly and severally liable for all payments of the Price.
    • The Buyer acknowledges and accepts that the products offered to the Buyer are at the sole discretion of the Seller, and may be varied from time to time by the Seller, and the Buyer expressly agrees that the Buyer will have no recourse against the Seller in relation to such changes.
    • The Seller reserves the right to accept any order in whole or in part, or to decline any order
  3. Inconsistency
    • The Seller sells the Goods only on these Terms and Conditions of Sale. If the terms of the Buyer’s order are inconsistent with these Conditions of Sale, the delivery of the Goods to the Buyer shall constitute an offer by the Seller to sell the Goods to the Buyer on the Terms and Conditions of the Sale detailed herein, which offer the Buyer may accept by retaining the Goods.
    • The Buyer has no authority to bind the Seller by any representation, undertaking, assertion of statement in relation to the Goods unless expressly authorised in writing by the Seller to do so.
  4. Payment
    • The Buyer must pay the Price at the time specified in the Contract. If no time is specified, The Buyer must pay the Price no later than 7 DAYS from the date of invoice.
    • The Buyer must pay GST on all supplies made by The Seller pursuant to the Contract. The Seller must give The Buyer a Tax Invoice stating the Price and the GST payable prior to the time for payment.
    • Time is of the essence in relation to payment of the Price and other monies to The Seller. If payment is not made on or before the due date, The Buyer will forfeit any discounts and must pay interest on the balance of monies outstanding from the date of invoice or the date on which The Buyer received Goods (whichever is the earlier) until payment in full to be calculated at the Interest Rate at daily rests and to be paid on demand or if no demand is made then on the last day of each and every month.
    • If The Buyer breaches the Contract, The Buyer must pay all costs and expenses (on an indemnity basis) incurred by The Seller in relation to recovery of the Price or enforcement of the Contract, including legal (on a solicitor and client basis), accounting and related fees, costs and disbursements.
    • The Price excludes GST (unless stated to include GST). Upon receipt of a Tax Invoice from The Seller, The Buyer must pay GST on supplies made pursuant to the Contract.
    • All prices shall be quoted or in accordance with the Seller’s price list current at the time of order whichever shall be the higher. Such price lists are subject to the conditions (if any) stated thereon. Verbal quotations are subject to written confirmation. Unless otherwise stated all prices quoted by the Seller are nett, exclusive of taxes.
  5. Delivery
    • At any time, quotes for delivery and installation are estimates only and the Seller shall not be liable for any loss or damage howsoever arising as a result or consequence of any failure to deliver or install, or in the delay in delivery or installation arising from any circumstances of whatsoever nature which are outside the Seller’s control including in particular but without limiting the generality of the foregoing fire, flood, explosion, strike, lock out or other industrial act or dispute or the breakdown of, or accident to plant, un-availability or shortages or raw material, labour, power supplies or transport facilities, or act of God, or any order of direction of any local; State or Federal Government authority of instrumentality.
    • The Buyer shall not be relieved of any obligation to accept or pay for Goods by reason of any delay in delivery or despatch. The Seller reserves the right to deliver by instalments, and each instalment shall be deemed to be sold under a separate contract. Failure to deliver any instalment shall not entitle the Buyer to repudiate the contract.
    • The Seller will not accept return of Goods unless the return is authorised in writing by the Seller.
    • Products specially purchased, manufactured, or to Buyers specifications are not returnable.
    • Delivery of Goods shall be deemed to have occurred at the time the Goods are collected by The Buyer or, if The Seller has agreed to deliver the Goods, at the time of loading of the Goods for delivery.
    • The Buyer agrees with the Seller that the Seller shall arrange and charge freight and in all such cases a separate contract is deemed to be created in relation to such freight. The Buyer appoints the Seller as its agent for the purpose of arranging such freight and agrees to pay the Seller for freight at the same time as payment is made for the Goods.
    • The Buyer agrees to pay the cost of insurance of Goods in transit, or if paid by the Seller agrees to pay the cost immediately on demand by the Seller to the Buyer, or in any event no later than at the same time as payment is made for the Goods. The Buyer shall pay all charges related to delivery and collection of the Goods including but not limited to labour, installation and transportation charges. The Seller reserves the right to set and change such charges, and to sub-contract supply and / or delivery of the Goods.
    • The Seller shall not be responsible for any loss or damage to Goods in transit. The Seller shall render the Buyer such assistance as may be necessary to press claims on carriers provided the Buyer shall have notified the Seller and the carriers in writing immediately loss or damage is discovered on receipt of goods and shall lodge a claim on the carrier within three days of the date of receipt of the Goods.
  1. Rights in Relation to Goods
    • The property in the Goods shall not pass to the Buyer until:
      • Payment for those particular goods has been received, and
    • Payment in full on any account whatsoever has been received by the Seller and the Buyer’s payment has been honoured whether or not that account relates to the sale of the Goods.
    • The Buyer shall stand in a fiduciary relationship to the Seller in respect of Goods supplied by the Seller if not paid for and the Seller shall have the right to trace the pro­ceeds of sale of such Goods. If the Buyer fails to honour any of these Terms and Condi­tions of Sale, without notice, the Seller shall have the right to take possession of the Goods which are the subject of this reservation of title, or trace the proceeds of sale thereof, as the case may be, and recover the full amount owing to the Seller together with interest and costs, if any. The Buyer shall hold the Goods supplied by the Seller in such a way as to identify them as being Goods in which property has not passed to the Buyer pending payment in full.
    • The Seller may without prejudice to any of its other rights and without prior notice, re­take and resume procession of any Goods which remain its property and, by its servants and agents, enter upon the Buyer’s premises, or any other place where the Goods may be, without liability for trespass or any resulting damage, for that purpose if:
      • There is any breach of any contract between the Seller and the Buyer; or
      • The Buyer takes any action that could result in his being made bankrupt or an arrangement under the Part X of the Bankruptcy Act 1966 is invoked against the Buyer or the Buyer is wound up or is placed under official management, or a receiver, or a receiver and manager, or a voluntary administrator is appointed in respect of the Buyer’s undertak­ing or property or any part thereof, or any encumbrancer, by itself or by an agent, takes possession of the Buyer’s undertaking or property or any part thereof; or
      • The Buyer parts with possession of the Goods or any of them otherwise than by way of sale to a customer in the ordinary course of its business.
    • The Seller may recover the price of the Goods by action, and may apply to wind up or bankrupt the Buyer, if the Goods are not paid for within the Seller’s usual credit terms, notwithstanding any arrangement that property in the Goods has not passed to the Buyer.
    • These provisions apply notwithstanding any arrangement under which the Seller provided credit to the Buyer. To the extent there is any inconsistency, these provisions prevail.
  1. Risk and Property in Goods
    • All risk of loss or damage to the Goods will pass to The Buyer at the time of delivery calculated pursuant to Clause 4.5.
    • Notwithstanding the passage of risk, The Seller retains title to and ownership in the Goods until The Seller receives payment of the price in full for the Goods. Until such time, The Buyer must hold the Goods as bailee and agent for The Seller and must not sell, encumber or dispose of or claim any lien over the Goods or keep or store the Goods on any premises not occupied by The Buyer or allow any person other than The Buyer to use the Goods in any way without the written consent of The Seller and The Buyer must insure the Goods for full replacement value noting the interest of The Seller as owner on the policy.
    • Until payment of the Price in full, The Buyer authorises The Seller to enter upon any premises leased, owned or occupied by The Buyer without liability for trespass or any resulting damage caused to property for the purpose of collecting, taking possession of, claiming or confirming the location and condition of the Goods at any time during usual business hours and without giving notice. In exercising its rights pursuant to this Clause, The Seller must use reasonable endeavours not to unreasonably interfere with the operation by The Buyer of its business.
    • If The Buyer sells the Goods or uses the Goods in any manufacturing process so as to change the character of the Goods, The Buyer must hold such part of the proceeds of sale as represents the Price of the Goods sold or used in the manufacture process in a separate identifiable account as the separate property of The Seller. The Buyer must notify The Seller of the amount held and pay such amount to The Seller upon request.
  1. Limitation of Liability
    • The Seller’s liability for a breach of a condition or warranty express or implied is hereby limited to
    • In the case of Goods, any one or more of the following:
      • The replacement of the Goods or the supply of equivalent Goods or
      • The repair of the Goods or
      • The payment of the cost of replacing the Goods repaired; or
    • In the case of services:
      • The supplying of the services again; or
      • The payment of the cost of having the services supplied again.
  1. Indemnity
    • Except where this Contract expressly imposes liability on The Seller, The Buyer indemnifies The Seller, its agents and employees against all claims, demands, actions, costs (including legal costs), charges, expenses, loss, damage and other liabilities arising from:
    • Loss or damage to any property or the death of or injury to any person in connection with the supply or use of the Goods;
    • Cancellation of the Contract by The Buyer without the prior written consent of The Seller; or
    • Breach by The Buyer of any provision of the Contract.
  1. Governing Law
    • The laws of the State of Western Australia will apply to the Contract and the parties submit to the jurisdiction of the Courts in that State.
  1. Charge
    • The Buyer hereby charges any property owned by the Buyer whether alone or jointly as a tenant in common or as a joint tenant in favour of the Seller to secure any moneys owing hereunder whether or not the seller has taken or has threatened to take any action against the Buyer or against any Guarantor in respect thereof.
  1. Severance
    • If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, the provision must be read down so as to give it as much effect as possible. If it is not possible to give the provision any effect at all, it is severed from the Agreement. Any reading down or severance does not affect the validity and enforceability of the remaining provisions in that jurisdiction or the offending provision in any other jurisdiction.
  1. Alterations to Conditions
    • The Seller may at any time alter its conditions of sale in respect of all transactions. The amended conditions will apply immediately if the Buyer has received notification of the amendments.
  1. Performance and Representations
    • The Buyer acknowledges that neither the Seller nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in the contract whether as to the fitness of the Goods for any particular purpose or any other matter.
    • No failure or delay by The Seller to exercise any right, remedy or power under the Contract or at law will operate as a waiver of that right, remedy or power.
  1. Sub-Contracting
    • The Seller reserves the right to sub-contract the manufacture and/or supply of any part of the goods or on any material or services to be supplied.
  1. Information Disclosure
    • The Buyer authorizes any credit reporting agency, lending institution or other body to disclose to the Seller financial or otherwise confidential information concerning the Buyer or its Directors or Partners.
  2. Miscellaneous
    • If any provision of the Contract is or at any time becomes prohibited by law or otherwise becomes void or unenforceable, it will be severed from the Contract without affecting or diminishing the effect or enforceability of the remaining provisions of the Contract.
    • The Seller reserves all of its rights at law and in equity against The Buyer arising out of a breach of The Contract by The Buyer.
    • All obligations of The Buyer under the Contract will survive termination of the Contract to the extent required for their observance, performance and enforcement.