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1.1 In these terms and conditions, unless the context otherwise Requires: (a) “CAA” means Comm Air Australia Pty Ltd. (b) “Customer” means the Person named in the Sales Invoice; (c) “order” or “purchase order” means any order for or any statement of intent to purchase any goods or services placed by the Customer with CAA; (d) “Sales Invoice” means the sales invoice issued by CAA to the Customer.
1.2 These terms and conditions: (a) Replace all prior terms and conditions issued by CAA to the Customer; (b) Take precedence over any terms set out in the Customer’s purchase order, credit application forms, to the extent of any inconsistency; (c) Any special conditions specified on the Sales Invoice shall, to the extent they are inconsistent with these terms and conditions, take precedence over these terms and conditions; (d) The expression “Person” includes an individual, a body politic, a corporation, an association (incorporated or unincorporated) a statutory authority or any authority or persons identified as the Customer.
Once an order has been accepted by CAA, it cannot be cancelled by the Customer. The supply of goods or services is subject to availability. CAA reserves the right to suspend or discontinue the supply of goods or services to the Customer without penalty. If CAA is unable to supply all of the Customer’s order, these terms and Conditions continue to apply to any part of the order supplied.
3.1 Where a written quotation has been given by CAA, the selling Price is the price specified in the quotation. In any other case, The price for goods supplied will be CAA’s list price ruling at the date of shipping and the charge for services supplied will be at CAA’s prevailing rates at the time of supply. Prices are subject to change without notice and are not binding on CAA.
3.2 In cases where CAA intends to progress bill the Customer for the supply of goods or services, CAA will do so on a percentage (%) of completion of works basis and specify the billing schedule in its written quotation. A separate Sales Invoice will be raised for each progress payment in accordance with the billing schedule.
3.3 All prices are expressed net of any applicable goods and services Tax or value added tax, freight charges and customs duty that shall be added to the amount to be paid by the Customer unless otherwise specified.
3.4 CAA will not be bound by any condition attaching to the Customer’s Purchase order or acceptance of a sale unless CAA in writing Expressly accepts such conditions.
3.5 A quotation is not to be constructed as an obligation to sell but merely an invitation to treat and no contractual relationship will arise until CAA has accepted in writing the Customer’s purchase order.
4.1 The Customer must make immediate payment upon receipt of the sales Invoice. If the Customer has an approved credit account with CAA, payment by the Customer for goods and services supplied must be paid for within 30 calendar days from the date of the Sales Invoice unless otherwise agreed in writing. Time is of the essence in respect of the Customer’s Obligation to make payment for goods or services by CAA to the Customer.
4.2 If any part of a Sales Invoice is in dispute, the balance will remain payable and must be paid when due. The Customer has no right to set-off any claim against CAA from moneys owing to CAA.
5.1 If requested by the Customer, and agreed by CAA, CAA will deliver the goods to an address specified by the Customer. In such cases: (a) the Customer will pay all charges associated with the delivery of the goods; (b) the Customer, or a representative of the Customer must be present at agreed place and time for delivery and must sign the delivery docket as acknowledgement that the goods and quantities described on the delivery docket have been delivered and comply with the Customer’s purchase order; (c) if the Customer or a representative of the Customer is not present, CAA may unload the goods at the agreed place for delivery, in which case, CAA is no longer responsible in any way for the goods; (d) CAA’s responsibility for delivery ceases at the delivery dock of the delivery address at which point title (subject to clause 11(f)) and risk in the goods will pass to the Customer. The Customer is responsible for;
(i) providing safe and adequate access to and from the delivery dock;
(ii) the loading or unloading of goods, and will pay for all damage and injury to any person and to any public or private property which may result.
5.2 If Customer nominates their own vessel or vehicle to deliver the goods to the Customer then risk will pass when the goods are loaded onto the Customer’s Nominated vessel or vehicle and Customer shall be responsible for arranging the insurance of the goods. Where Customer has nominated its own vessel or vehicle for delivery CAA will not be liable to Customer for any loss in the event of any failure in delivery or to arrange insurance.
5.3 CAA reserves the right to deliver in installments and all such installments, where separately invoiced, must be paid for without regard to the delivery of subsequent installments. A part delivery of an order will not invalidate the Balance of the order.
5.4 While CAA will use all reasonable endeavors to meet agreed delivery dates, CAA shall not be liable to Customer for any direct, indirect or consequential loss or damage whatsoever should it be delayed or prevented from delivering goods, supplying services, or otherwise performing any of its contractual obligations due to any cause or circumstances beyond CAA’s reasonable control. Time is not of the essence in relation to delivery.
5.5 Subject to clause 5.4, delivery dates must not be varied once they have been agreed, without CAA’s prior written approval. Should CAA agree to postpone Delivery, the goods in question will be stored at the Customer’s risk and CAA reserves the right to impose a weekly storage charge. Where delivery is postponed for more than 3 months, CAA may increase any fixed contract prices to reflect CAA’s then current price list.
5.6 CAA may at its discretion sell any goods still in its possession 3 months after the mutually agreed deferred delivery date and seek damages for any loss incurred by CAA as a result of the deferment in the delivery date.
CAA’s Sale Invoice is made on a supply only basis. Installation and commissioning (if any) is at the expense of the Customer unless otherwise specifies in writing by CAA.
7.1 Photographs, drawings, illustrations, weights, dimensions and any other particulars accompanying, associated with or given in a quotation, the descriptive literature or a catalogue may be subject to alteration without notice.
7.2 CAA reserves the right to make changes in the construction and/or design of goods and not withstanding any such changes the Customer shall accept in performance of any order of CAA current corresponding standard models.
8.1 All complaints, requests for return of goods, claims, or notification of lost, incomplete, damaged, defective or non-compliant goods must be submitted by the Customer to CAA in writing within 7 days of the date of delivery of the goods. Otherwise, the Customer shall be deemed to have accepted the goods and shall not refuse to pay for the goods on the basis that they were lost, incomplete, damaged, defective or do not comply with the Customer’s purchase order.
8.2 CAA will not accept the return of goods unless the following Conditions are satisfied: (a) CAA’s written approval has first been obtained, which will include the issue of an authorization number; (b) The goods are returned within 7 days of the issue of the authorization number under clause 8.2(a); (c) A copy of the relevant invoice is enclosed with the returned goods. (d) The goods are returned in merchantable quality (as determined solely by CAA) with the original packaging and without damage or marks to the original packaging. (e) The Customer pays shipping costs for the return of goods to a warehouse or other premises nominated by CAA. (f) The Customer pays to CAA a handling charge equal to 15% of the price paid for the goods. Unauthorized returns will not be accepted. The Customer will be Responsible for all damage incurred during return shipment. The Customer shall not deduct the amount or any anticipated credit from any payment due to CAA.
9.1 Certain legislation may imply warranties, terms or conditions that cannot be excluded, restricted or modified. If those statutory provisions apply, to the extent to which CAA is entitled to do so, its liability is limited at its option to; (a) In the case of goods: ii. Replacement of the goods or the supply of equivalent goods. ii. Payment of the cost of replacing the goods or of acquiring equivalent goods, by credit to the customer’s account, in cash or by cheque at CAA’s discretion; or iii. Repayment of any part of the purchase price of the goods which has been paid by the Customer, by credit to the Customer’s account, in cash or by cheque at CAA’s discretion. (b) In the case of services by supplying the services again. 9.2 Subject to clause 9.1, all goods supplied by CAA are covered by a written “Express Warranty” supplied with the goods when sold to the Customer. To the extent permitted by law, the Express Warranty is in substitution for all other terms, conditions, warranties and representations, expressed or implied by statute or otherwise.
9.3 The Customer expressly acknowledges and agrees that it has not relied upon and CAA is not liable for any advice given by CAA, its agents or employees in relation to the suitability for any purpose of goods or materials supplied by CAA.
Subject to clause 9, CAA is not liable for any injury, damage or loss of any kind whatsoever and howsoever arising out of or in connection with the supply of goods and services including loss of profit, loss of revenue, loss of contract, loss of goodwill or the increased cost of workings, nor shall CAA be under any liability whether in contract, tort or otherwise for any injury, damage, or loss whether consequential, special, indirect or otherwise arising out of or in connection with the supply of goods or services, even if due to the negligence of CAA or any of its employees or agents.
If the Customer does not make any payment by the due date, exceeds its credit limit at any time, commits any other material breach of these terms and conditions or an insolvency event in respect of the Customer arises or is reasonably suspected by CAA (“Default Event”) CAA may (without limiting any other right or claim it may have against the Customer) do any or all of the following: (a) charge the Customer interest calculated on a daily basis on any portion of the Customer’s account that is overdue at the reference rate for business loans available to commercial customers from the financial institution that CAA banks with plus 5% calculated from the date the payment was due until the date payment is made (both dates inclusive); (b) vary or withdraw any approved credit limit and/or terms of trade; (c) cancel or suspend any unfilled orders or cease providing the services; (d) terminate any contracts between CAA and the Customer and demand immediate payment of any monies due and outstanding under those contracts; (e) cancel any rebate, discount or allowance due or payable by CAA as at the date of the Default Event. (f) enter (at any time) any premises in which CAA’s goods are stored, to enable CAA to reclaim possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Customer or any Receiver Manager or Administrator appointed over all or any part of its assets. For the avoidance of doubt, title in the goods immediately re-vest in CAA upon CAA asserting its right of entry under this clause 11 (f); (g) lodge a non-lapsing caveat or other similar instrument over any land or Personal property of the Customer and the Customer hereby charges in favour of CAA all beneficial interest (freehold and leasehold) in land and personal property held now or in the future by the Customer with the payment of any monies owed to CAA. Furthermore, the Customer hereby irrevocably appoints all and any of CAA’s company secretary and credit manager or a solicitor engaged by CAA as CAA’s lawful attorney for the purposes of doing all such acts and things and executing all such documents necessary to enable CAA to register a non-lapsing caveat or other similar instrument over any such freehold or leasehold property and for such purposes a declaration of default duly executed for and on behalf of CAA by such persons shall be deemed sufficient evidence of such default; or (h) institute any recovery process as CAA in its discretion decides at the Customer’s cost and expense
CAA may amend or vary these terms and conditions at any time by written notice to the Customer’s place of business or by posting an amended copy on CAA’s website http://www.commairaustralia.com.auand that the Customer Will be bound by any such amendments.
These terms and conditions and any contract including them shall be governed by the laws of the country in which the goods or services are supplied. The parties irrevocably submit to the jurisdiction of the appropriate court convenient to CAA in respect of any claims, proceedings and matters arising out of or in respect of these terms and conditions.
14.1 All clerical errors are subject to corrections and shall not bind CAA.
14.2 The invalidity or unenforceability of any provision of these terms and conditions shall not affect the validity or enforceability of the remaining provisions.
14.3 CAA’s failure to enforce, at any time or any period of time, any term of any contract incorporating these terms and conditions shall not constitute or waiver of such term and shall in no way affect its right to enforce it.
14.4 Headings are included for ease of reference and do not form parts of or affect the interpretation of these Terms & Conditions of Sale.
14.5 Comm Air Australia may request a deposit of up to 50% of the order value at time of order placement with balance to be paid prior to collection of goods.
14.6 Ownership of goods supplied by Comm Air Australia (CAA) shall remain with CAA until payment in full is received for the goods.
14.7 These terms and conditions bind CAA, Customer and their respective successors and assigns.