Terms and Conditions of Sale
1.2 No variations to these Terms which the Customer seeks to introduce will be effective unless expressly agreed to by FMS in writing.
2.1 In these Terms:
(a) “FMS” means Farm Management System Pty Ltd ABN 12 626 513 344;
(b) “Contract” means the contract between FMS and the Customer consisting of the Purchase Order and these Terms;
(c) “Customer” means the party who places a Purchase Order;
(d) “Goods” means all goods or machinery referred to in the Purchase Order and to be supplied by FMS in accordance with the Contract;
(e) “Purchase Order” means a written order setting out an order number, FMS quote number (if applicable), full description of the Goods to be purchased, the delivery date, delivery point and any other information required by FMS;
3. Quotes and Purchase Orders
3.1 All quotes from FMS are valid for a period of 30 days from the date of issue or as otherwise specified in the quote.
3.2 All quotes given by FMS are subject to withdrawal or variation by FMS at any time prior to acceptance by FMS of the Purchase Order.
3.3 Prices given in any quote by FMS are applicable to that quote only and will not apply in any other instances.
3.4 In order to purchase the Products, the Customer must place a Purchase Order with FMS. The Purchase Order may be accepted or rejected by FMS at FMS’ sole discretion.
3.5 The Customer’s placement of a Purchase Order and payment of deposit will be taken as acceptance of the quote and of these Terms.
3.6 No Purchase Order will bind FMS unless accepted by FMS. No provisions of the Purchase Order will override the provisions of these Terms.
3.7 Where there is an inconsistency between the provisions of the Purchase Order and these Terms, the subsequent delivery of the Goods will be deemed to be a counter offer on the basis of these Terms and acceptance of that offer by the Customer will be deemed to occur on acceptance of the Goods.
3.8 The Customer acknowledges that it has checked the quote and is satisfied that all Goods required by the Customer is set out in the quote. FMS takes no responsibility for any errors or omissions in respect of the description of the Goods or the price set out in the quote.
3.9 The Customer will not have the right to cancel any Purchase Order placed with FMS without the written consent of FMS.
3.10 FMS may impose any conditions in providing that consent including, for example, that the Customer will cover FMS against any loss, damage and expense incurred by FMS in relation to the alteration or cancellation of that Purchase Order, including the cost of return freight, return shipping to factory of origin, items purchased from third parties for inclusion in the Goods and all labour costs incurred by FMS including compensation payable to any of FMS’ suppliers and loss of profit.
3.11 The Contract shall be formed by and upon FMS accepting from the Customer the Purchase Order and shall take precedence over any other representations, agreements, arrangements or understandings relating to the Products and any matters in connection with the Products.
3.12 FMS reserves the right to correct any significant errors or omissions of any kind in its offers, quotes, order confirmations or invoices and the correction will be binding on the Customer.
4. Purchase Price and Payment
4.1 The Customer must pay the quoted price for the Goods as at the date that FMS accepts the Purchase Order.
4.2 The Customer must pay a 15% deposit when it places a Purchase Order.
4.3 Payment of the balance purchase price must be made before delivery of the Goods.
4.4 If between the date of accepting the Purchase Order and delivery of the Goods there is a rise in the cost of the Goods based on the cost of production, freight, insurance, exchange, duties or other importation costs then the purchase price will increase pro rata.
4.5 Unless otherwise stated all prices are exclusive of GST and any other taxes. The Customer will pay all of these charges.
4.6 Unless otherwise stated all prices are exclusive of any delivery charges, packaging, freight, assembly costs, installation costs, costs and charges of third-party suppliers such as electricians, insurance or any statutory, sales, duties or imposts, all of which may be added to the purchase price.
5. Delivery, Storage and Use
5.1 The Customer will give delivery instructions in its Purchase Order and, if possible, FMS will arrange for delivery in accordance with those instructions.
5.2 The Customer will pay the costs of freighting the Goods from FMS’ premises according to the Customer’s delivery instructions in addition to the quoted price.
5.3 FMS reserves the right to select the carrier and method of carriage in all cases.
5.4 All times quoted by FMS for supply and delivery of the Goods are estimates only. Delay in supply or delivery will not affect the Customer’s obligations to accept or pay for the Goods.
5.5 FMS reserves the right to supply or deliver by instalments and each instalment will be deemed to be sold under a separate contract. Failure to supply or deliver by any instalment will not entitle the Customer to repudiate the order.
5.6 FMS is deemed to have delivered the Goods when the Goods are made available to the Customer for physical collection by or on behalf of the Customer at the Customer’s nominated delivery point. Any unloading or loading shall be the Customer’s responsibility.
5.7 If the Customer is unable to collect the Goods at the Customer’s nominated delivery point on the delivery day, FMS may (at its option and without limiting its other rights and remedies) arrange suitable storage of the Goods, whether at its premises or elsewhere, and the Customer must pay or reimburse all costs and expenses of storage, insurance, handling and other charges associated with such storage. Notwithstanding the Customer’s inability to collect the Goods, delivery is deemed to have occurred.
5.8 The Customer bears the risk of any deterioration, loss or damage to the Goods during transit from time they are delivered to the carrier.
5.9 The Customer is responsible for all insurance of the Goods in transit unless expressly agreed by FMS in writing.
6. Return of Goods
6.1 The Customer is deemed to have accepted the Goods unless it makes a claim in accordance with clause 6.2.
6.2 The Customer may reject any Goods that are wrongly supplied or oversupplied by notifying FMS of the claim and providing full particulars in writing within 5 days of receipt of the Goods. FMS may dispute any such claim.
6.3 The Goods referred to in clause 6.2 may be returned to FMS for full refund if all of the following are complied with:
(a) the Goods are returned to FMS’ premises by prior arrangement and with FMS’ written approval within 7 days of delivery. FMS will bear the cost of return for the Goods delivered as the result of an administrative error by FMS.
(b) the Goods are accompanied by a dispatch note stating FMS’ original invoice number and reason for return; and
(c) the Goods are returned in an unsoiled, undamaged and resaleable condition in its original packing.
7. User Restrictions
7.1 FMS will not be held liable for any loss, damage or missed opportunity or otherwise of any nature including but not limited to financial loss, lost profits or damage to property, material or immaterial, incidental or consequential arising from the data measured or generated from the Goods.
7.2 The Customer will utilise the Goods appropriately and in good faith for the purposes required.
7.3 The Customer’s use of any Goods provided by FMS that contravenes any terms and/or conditions of FMS is the liability and responsibility of the Customer.
7.4 The Customer will be responsible for the service and maintenance of any Goods purchased from FMS.
8. Limitation of Liability
8.1 The application of the provisions of the Competition and Consumer Act 2010, the Fair Trading Act 1989 and any other similar legislation to these Terms are expressly excluded except to the extent that exclusion is prohibited by the legislation.
8.2 Subject to clause 8.1:
(a) FMS gives no warranty in relation to the Goods sold to the Customer other than the FMS Warranty which is available on the FMS website (INSERT LINK TO WARRANTY).
(b) Any liability of FMS to the Customer arising from the supply of the Goods by FMS to the Customer will, whether the liability arises for breach of contract or at common law, including the law relating to negligence, is limited to repair by FMS of the Goods, the supply by FMS of replacement Goods at no additional charge or the refund of the price paid by the Customer for the Goods giving rise to liability, whichever FMS will deem appropriate. In no case will FMS incur liability for any loss or damage suffered by the Customer including loss of profit, damage to property or personal injury arising from that supply whether arising directly, incidentally or consequently.
(c) All information in catalogues, price lists, photographs, brochures, FMS’ website and other illustrations or advertising material and drawings represent generally the subject matter of the Goods but will not be taken as necessarily representing the Goods the subject of any order and will not form part of any contract or agreement for supply.
(d) Except as otherwise expressly provided in these Terms the Customer releases FMS from all actions, claims, demands, losses, liabilities, damages and expenses arising from or in relation to the supply of the Goods.
9. Passing of Title
9.1 Title and property in all Goods ordered by FMS to the Customer will not pass to the Customer until payment in full for all Goods supplied has been unconditionally received by FMS.
9.2 If the Customer fails or neglects to pay FMS or otherwise is in default under any agreement in relation to the supply of the Goods to the Customer, in the case of a natural person, commits an act of bankruptcy or has a bankruptcy petition or bankruptcy notice issued against him or in the case of a company is served with a demand under section 459E of the Corporations Act or commits an act pursuant to which insolvency proceedings may be commenced then:
(a) FMS may immediately enter the Customer’s premises or any other premises for the purpose of recovering possession of the Goods;
(b) payment of all monies owing by the Customer to FMS will immediately become due and payable;
(c) FMS may vary the terms of payment or suspend or terminate any contract for the supply of the Goods to the Customer;
(d) in addition to any other lien with FMS may be statutory or otherwise be entitled, FMS will be entitled to a general lien on all money, property or goods belonging to the Customer then in the Customer’s possession to the extent of the unpaid price of any Goods sold to the Customer by FMS.
9.3 The Customer will indemnify FMS against any action in respect of recovery, possession, handling and re-sale and the balance of any amount owing following re-sale will be immediately due by the Customer to FMS.
No provision expressed or implied in these Terms restricts FMS’ right to sell the Goods to third parties whether or not the Customer.
The Customer will treat all information provided to in the course of its dealings with FMS as private and confidential and will not disclose that information to any person nor attempt to use it in any way which may injure or cause loss to FMS unless that information is public knowledge or was known by the Customer prior FMS providing it.
12. Intellectual Property
12.1 Except where specifically stated in these Terms, these Terms do not give the Customer any intellectual property or other rights in the Goods.
12.2 All patents, trademarks, copyrights and any other intellectual property of the Goods remains the sole property of FMS at all times and the Customer agrees that it will not infringe any of FMS’ intellectual property rights.
12.3 The Customer must leave in position and not cover, deface or erase any notices or other marks which FMS may place on or affix to the Goods.
12.4 Unless otherwise agreed by FMS in writing, FMS maintains the right to bring claims against the Customer and any third party for any breaches of intellectual property rights.
13.1 All persons authorising a Purchase Order and, in the case of a company, all directors of the Customer (Guarantors) hereby guarantee and indemnify FMS in respect of all monies owed by the Customer to FMS in relation to the supply of Goods in accordance with these Terms or otherwise. The obligation in this clause will be a principal obligation and the guarantee a continuing guarantee and will not be affected by any act or omission by FMS or the Customer and will be binding on the Guarantors despite any irregularity in this guarantee or its execution.
13.2 The Guarantors will pay all monies owed by the Customer to FMS on demand.
14. Force Majeure
FMS will not be liable for any failure to perform an obligation under the Contract or for any loss or damage suffered by the Customer in consequence of that failure which arises from any cause beyond the reasonable control of FMS including but not limited to act of God, war, riot, insurrection, vandalism, sabotage, delays in transportation and handling, accidents at sea, fire, accident, labour disputes, any inability of FMS’ suppliers to deliver materials or finished Goods, the operation of any law, proclamation, regulation or ordinance of any Government agency or other circumstance whether or not of a similar nature beyond the reasonable control of FMS.
15. Relevant Law
These Terms, the Contract and the supply of Goods on any account from FMS to the Customer will be construed in accordance with the laws of Queensland and the parties submit to the jurisdiction of the Queensland Courts.