Customer’s Statutory Rights

 

These conditions do not affect the rights, entitlements and remedies conferred under the Trade Practices Act on a Customer who is a consumer.

 

General

 

a) These Terms and Conditions of Sale are deemed to be incorporated into all contracts for the supply of equipment, the provision of services, and the sale of goods to the Customer and to supersede all terms and conditions previously issued by Gemicorn Technologies (hereafter called Gemicorn Technologies ). These terms and conditions of Sale constitute the whole of the agreement between Gemicorn Technologies and the Customer. Except as otherwise expressly agreed upon in writing between a duly authorised Officer of Gemicorn Technologies and the Customer, the Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear in any Order form or other document issued by any Customer.

b)All Orders placed with Gemicorn Technologies shall only be accepted subject to these Terms and Conditions. Gemicorn Technologies may at any time alter these Terms and Conditions and such altered Terms and Conditions shall apply after notification by Gemicorn Technologies to the Customer.

c)If a Customer cancels or alters any order or part order at any time after Gemicorn Technologies has received the order then Gemicorn Technologies reserves the right to charge to the Customer the cost of any goods already acquired or manufactured for the order, together with the cost of any labour expended to the date of such cancellation or alteration.

 

Terms of Payment

 

a)Unless otherwise stated on the invoice all prices are strictly nett. The granting of credit to a Customer shall be at the absolute discretion of Gemicorn Technologies and unless otherwise demanded by Gemicorn Technologies the Customer shall make payment within 30 days of month end of invoice date.

 

b)If the customer fails to make payment in accordance with this clause, Gemicorn Technologies shall be entitled to:

 

i)Require payment of cash upon delivery of any further equipment, materials or services;

ii)Claim for the Customer all costs relating to any action taken by Gemicorn Technologies to recover monies or goods due from the Customer including any mercantile agent costs and legal costs and disbursements on a solicitor-client basis and;

iii)Cease any further work for the customer and to terminate any agreement in relation to any sale of goods or provision of services that are not yet delivered or provided.

 

Delivery

 

a)Any date or time quoted for delivery of goods or provision of services is an estimate only and Gemicorn Technologies shall endeavour to effect delivery and provide services at the time or times required by the Customer, but failure to do so shall not confer any right of cancellation or refusal of delivery on the Customer or render Gemicorn Technologies liable for any loss or damages directly or indirectly sustained by the Customer as a result thereof.

 

b)If the Customer is unable or unwilling to accept physical custody of the goods when ready for delivery, Gemicorn Technologies shall be entitled to charge a fee for any delay experienced including all transportation and other consequential costs. Gemicorn Technologies may, at its discretion, make and invoice partial deliveries and each partial delivery shall be a separate sale pursuant to these Terms and Conditions.

 

Inspection of Goods Sold

 

a)The Customer shall examine the goods immediately after delivery and Gemicorn Technologies shall not be liable for any misdelivery, shortage, defect or damage and the Customer shall provide details in writing within fourteen (14) days of the date of delivery of the goods.

 

Implied Terms

 

a)The Customer acknowledges that neither Gemicorn Technologies 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 this agreement whether as to the fitness of the goods for any particular purpose or any other matter.

 

b)The provisions of the clause do not apply insofar as their application is prevented by the Trade Practices Act 1974 or the laws of any other State or Territory.

 

Limitation of Company Liability

 

a)The Customer acknowledges and agrees that unless expressly provided for in this agreement, Gemicorn Technologies shall not be liable to the Customer of the Customer’s servants or agents for direct, indirect, incidental or consequential loss, injury or damage of any nature whatsoever (whether based on contract, tort or otherwise) including but not limited to loss of profits, loss of production, loss of sales opportunity or business reputation, direct or indirect labour costs and overhead expenses and damage to equipment or property or any other claim whatsoever arising directly or indirectly or in any way attributable to the performance of or failure to perform this contract. The provisions of the clause do not apply insofar as their application is prevented by the Trade Practices Act 1974 or the laws of any other State or Territory.

 

Variation

 

a)Any variation to an Order must be accompanied with a written confirmation from the Customer. The cost of any variations will be in addition to any Quoted Price and will be at the expense of the Customer.

b)Gemicorn Technologies reserves the right to refuse to provide goods for sale or to carry out any work that is not included in any credit application, quotation document, any/or invoices. In the event that the Customer or any agent of the Customer has made any misrepresentation to Gemicorn Technologies which causes or would cause costs in addition to any Quoted Price to be incurred then such additional costs shall be at the expense of the Customer and Gemicorn Technologies may, in its absolute discretion refuse to carry out such work.

 

Property Risk for Equipment

 

a)The Customer shall be responsible for any damage however caused to Gemicorn Technologies equipment during the period that the equipment remains on the Customers site, unless such damage is directly attributable to Gemicorn Technologies, its servants or agents. The damages in this clause include, but are not limited to the cost of repair or replacement of any damaged equipment or part therof, and any loss of profits by Gemicorn Technologies caused as a result of rendering the equipment incapable of being used elsewhere until repaired or replaced.

 

Property and Risk for Sale of Goods

 

Notwithstanding delivery of products or their installation, property in any given products shall remain with Gemicorn Technologies until the Customer has paid and discharged any and all indebtedness to Gemicorn Technologies on any account whatsoever, including all applicable taxes, levies and duties.
The risk in the products shall pass to the Customer upon delivery to the Customer or his agent.

 

Termination

 

a)In the event that the Customer terminates any agreement arising upon the acceptance of this offer by Gemicorn Technologies then the Customer shall be liable for all costs and expenses incurred by Gemicorn Technologies up to the date of receipt of notice of termination by the Customer. The Customer shall only be entitled to terminate any agreement arising upon acceptance of this offer by notice in writing to Gemicorn Technologies. The Customer hereby authorises Gemicorn Technologies to deduct all costs incurred by Gemicorn Technologies up to the date of termination from any funds held on trust for Gemicorn Technologies . In the event that any funds do not cover all of the costs incurred by Gemicorn Technologies up to the date of such termination then the Customer hereby agrees to pay to Credenza Exports such amounts upon demand and Gemicorn Technologies shall be entitled to recover such funds as a liquidated debt.

b)Gemicorn Technologies may, notwithstanding any specified period for provision of services and notwithstanding any waiver of some previous default, forthwith terminate this agreement if a Customer commits any breach of this agreement.

c)If the Customer fails to comply with any of these Terms and Conditions or being a natural person or persons commits any act of bankruptcy, or being a corporation passes a resolution for Winding Up, Voluntary Administration or Liquidation (other than for the purposes of reconstruction or amalgamation) or enters into any composition or arrangement with creditors or if a Receiver or Manager is appointed for any property or assets of the Customer or becomes liable to be wound up by reason if insolvency or if any petition is presented for its winding up, or if a liquidator or provisional liquidator is appointed, Gemicorn Technologies may, in adition to exercising all or any of its rights against the Customer, suspend any further work for or deliveries to the Customer and immediately recover possession of any goods not paid for in accordance with the Terms and Conditions.

 

Force Majeure

 

Gemicorn Technologies shall not be liable for any failure or delay in supply or delivery of any goods or provision of services where such failure or delay is wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of Gemicorn Technologies including, but not limited to, war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention, transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storm or tempest, theft, vandalism, riots, civil commotions or accident of any kind.

 

Service of Documents

 

The Customer agrees that service of any notices or Court documents may be effected by forwarding same by pre-paid post or facsimile to the last known address of the Customer.

 

Statement of Debt

 

A written Statement of Debt duly signed by an authorised employee of Gemicorn Technologies shall be prima facie evidence and proof of the amount of indebtedness by the Customer to Credenza Exports at that time.