CONDITIONS OF SALE
All orders are accepted by FMES AUSTRALIA subject to the Terms and Conditions of Sale set out below:
1.1 All orders for products (“Products”) or services (“Services”) will be accepted by FMES Pty Ltd subject to these terms and conditions of sale. Any person who places orders for Products or Services with FMES (“Customer”) is bound by these terms and conditions. No other terms will apply to the supply of Products and Services by FMES unless agreed in writing by an authorised signatory of FMES. FMES reserves the right to amend these terms and conditions at any time. The most current version of these terms and conditions can be found at fmes.com.au. References to the FMES website” and any other catalogue of products published by FMES in any medium.
1.2 All descriptions of the Products and Services contained on the FMES website or otherwise communicated to the Customer are approximate only and shall not form any part of the contract between FMES and the Customer. FMES shall not be liable to the Customer for any errors or omissions on its website, the FMES catalogue or other product advertisement. The advertising of products and services on the FMES website is not an offer capable of acceptance; it merely constitutes an invitation by FMES for the Customer to make an offer to purchase Products and Services. FMES acceptance of the Customer’s order will take place when FMES confirms pricing and delivery dates to the Customer in writing, at which point a contract will come into existence between FMES and the Customer.
1.3 Not all products are stocked at FMES as displayed on the website or in the catalogue. Any clauses in these terms and conditions of sale expressly stated to be in relation to Extended Range products will prevail over any inconsistent provisions elsewhere in these terms and conditions of sale.
1.4 FMES is a business-to-business supplier. The FMES website is intended for use by business customers and not by private individuals acting as consumers (“Consumers”). Notwithstanding the foregoing, nothing in these terms and conditions of sale shall affect the statutory rights of a Customer who deals as a consumer.
1.5 The Customer’s particular attention is required for clause 11, which sets out certain limitations of FMES liability.
Prices and GST
2.1 The prices of the Products and Services are as set out on the FMES website. FMES reserves the right to change prices without prior notice at any time. Customer is informed that prices and products in the printed hard copy catalogue are subject to change. Up-to-date information can be found on the FMES website. In the event of any conflict between prices for any products listed on the FMES website and prices listed in the physical catalogue, prices listed on the FMES website shall prevail.
2.2 The price of an ordered Product or Service will be as set out on the FMES website at the time of order acceptance by FMES, except for products or services ordered for delivery at a future specified date (“forward orders”). The price for forward orders may be varied by FMES after the date of order acceptance by written notice to the Customer.
2.3 All prices exclude GST, which FMES will add at the rate applicable at the date of order acceptance. If GST applies to any supply the Customer must pay an additional amount equal to the amount of GST. FMES will provide a GST-compliant tax invoice within 28 days of a request. “GST” means the goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
3.1 FMES reserves the right to decline to trade with any company or person. FMES may decline to accept any order, whether or not payment has been received, by giving notice of non-acceptance to the Customer by telephone, email within a reasonable period of receipt of the order by FMES. Further, FMES may cancel orders which have been accepted by giving written notice of such cancellation to the Customer by telephone, email within a reasonable period of receipt of the order by FMES. If FMES rejects or cancels an order for which payment has been taken, it will refund the amount to the Customer as soon as reasonably practicable.
3.2 FMES executes orders to the Customer’s requirements, but may provide substitute products where requested by the Customer, or where the product has been superseded by the latest version. To the extent that orders cannot be fulfilled completely from stock, the unfulfilled balance will (at the Customer’s option) either be put on back order to be fulfilled when FMES next has available stock or be cancelled and refunded to the Customer.
3.3 The Customer must submit orders using the FMES part numbers and the priced units used on the FMES website or in the FMES hard copy catalogue, and must specify which delivery option is required. Any telephone, or internet confirmation of a previous order by the Customer must be marked ‘CONFIRMATION ONLY’ or otherwise clearly identified as a confirmation to avoid duplication. If the Customer orders the wrong product or number of products, or duplicates orders, the provisions of clause 12 (Cancellation and Returns) will apply.
4.1 Subject to any cancellation, substitution or non-fulfilment of Customer’s orders in accordance with clause 3 (Ordering), FMES will deliver the products specified in the Customer’s order. FMES may use third party delivery agents to deliver products to Customers.
4.2 The Customer’s delivery options, and the prices for them, are as set out on the FMES website at the date of order or will be notified to the Customer at the time of order. Customer is informed that delivery options and prices in the printed catalogue are subject to change and up-to-date information can be found on the FMES website. In the event of any conflict between delivery options and delivery prices for any products listed on the FMES website and in the catalogue, the delivery options and delivery prices listed on the FMES website shall prevail.
4.3 Delivery prices apply per order, irrespective of the number of products ordered. Delivery will be made to the Customer’s usual business address, unless otherwise agreed in writing.
4.4 FMES will aim to deliver products in accordance with the times and dates for delivery quoted on the FMES website or by FMES employees (the ‘Quoted Delivery Times’), but Quoted Delivery Times are approximate only and FMES shall not be liable for the consequences of any delay in delivery. Time for delivery shall not be of the essence. Delivery of products marked in the hard copy catalogue or on the FMES website as requiring special handling may (because of the nature of the products) take longer to be delivered.
4.5 If any delivery has not been made by the Quoted Delivery Time, then subject to the Customer notifying FMES of such delay, FMES will endeavour to ascertain if the product has been delivered and will inform the Customer of the status of the delivery or the new expected delivery time. FMES may also, at its discretion, refund the total delivery charge to the Customer. If a revised delivery time is not acceptable FMES may also, at its discretion, offer an alternative delivery option. These are the Customer’s exclusive remedies for late delivery and FMES shall not be liable for any loss or damage (including indirect, consequential or economic) suffered or incurred by the Customer or any other party in relation to late delivery.
4.6 Freight is an external cost to FMES and is calculated depending upon the postcode and weight of goods. Generally this will be displayed in your quote/ Sales Order.
Inspection, Transit Delays and Non-delivery
5.1 The Customer must inspect all products as soon as is reasonably possible after delivery or collection. The Customer shall, within 10 days of the date of delivery or collection or, in the case of sub-clause iv. below, the Quoted Delivery Time or any updated estimated date for delivery, give written notice to FMES in detail of:
- Any defect in a Product that is apparent on reasonable examination. In this case FMES shall, at FMES’s discretion, replace the Product or refund the purchase price. See clause 9 for terms of Warranty. In any event the Customer must refuse parcels delivered to it in a damaged condition;
- Any shortfall in Products delivered. In this case FMES shall, at its discretion, deliver the undelivered Products or refund the price of the undelivered Products;
- Any delivery of Products not in accordance with the order. In this case FMES shall, at FMES’s discretion, replace the Products or refund the purchase price; or
- Any non-delivery of the Products (in which case the time limit is within 10 days of the estimated despatch date). In this case FMES shall deliver the undelivered Products or refund the price of the undelivered Products.
5.2 If the Customer fails to give any such notice, the products shall be conclusively presumed to be, in all respects, in accordance with the order and free from apparent defects, and the Customer shall be deemed to have accepted the products accordingly. FMES’ record of the products despatched (including the quantity) shall be conclusive evidence of the products received by the Customer, unless proved otherwise by the Customer.
5.3 The remedies set out above are the Customer’s exclusive remedies for non-delivery or short delivery of products, or for apparent defects in the products or delivery of products not in accordance with the order. FMES shall not be liable for any losses, consequential or otherwise, or for costs (including legal costs), expenses, liabilities, loss of profits, business or economic loss, depletion of goodwill, damages, claims, demands, proceedings, judgments or otherwise arising from these circumstances.
Payment of Invoices
6.1 For Customers without established trading accounts, the Customer shall, if FMES so requires, pay in full any invoice prior to commencement of procurement and/or manufacturing or otherwise prior to any despatch of the Goods.
For Customers with established trading accounts with credit facilities, the time of payment shall be of the essence of the Contract and the Customer shall pay any invoice within 30 days from the end of the month of invoicing, unless otherwise agreed by FMES in writing and signed by an authorised Officer of FMES. Should the 30 day payment deadline fall on a Saturday, Sunday, Public Holiday or Bank Holiday at the address where the payment is to be made or be in the month of February, payment is required no later than the last banking day of that month. Payment shall be made in Australian dollars.
Any supply of Goods and/or Services to an account with credit facilities will be subject to a credit limit, which FMES may apply and/or amend from time to time at its absolute discretion.
If the Customer fails to make any payment, of any invoice, or of any required milestone prepayment, by the date on which that payment is due, then FMES may, without prejudice to any other right or remedy, which FMES may otherwise have, and in addition to any such other right or remedy, take any action including the following:
14.1. suspend, defer or cancel any outstanding supply of any Goods and/or Services, which are to be supplied to the Customer, under these Conditions of Sale, or under any other arrangement, unless and until the overdue amount is paid in full;
14.2. appropriate any payment which payment is made toward payment for the Goods and/or Services being supplied under these Conditions of Sale, or which payment is made toward any other Goods and/or Services being supplied under any other arrangement, toward payment of the overdue payment, unless and until the overdue amount is paid in full;
14.3. charge interest (both before and after any judgment) on the amount unpaid, at the rate of 3% per annum above the overdraft rate payable by FMES to its bankers, unless and until payment is made in full (a part of the month being treated as a full month for the purpose of calculating interest); and
14.4. demand payment of the arrears as well as payment in advance, for any undelivered Goods and unprovided Services, and before proceeding with any procurement and/or manufacturing or making any further delivery of Goods and/or before proceeding with providing any Services, unless and until the overdue amount is paid; and
14.5. call on and give effect to any right that FMES may have in any security in place, including: guarantees given by directors or any other parties, secured real property, bank guarantees or any rights pursuant to the PPSA.
If payment of invoices is made contingent upon any of delivery, installation, test or commissioning, and if any of these stages are delayed to suit the Customer’s wishes or convenience, or by reason of the Customer being unready, unavailable, or unable to take delivery or undertake installation, tests or commissioning, at the time, date and place allocated, then payment of invoices will be due in accordance with agreed payment terms from the date of the invoice, as if there had been no delays. Additionally, risk will pass to the Customer immediately upon the occurrence of the delay, and any storage by FMES necessitated by the delay will be at the Customer’s risk and expense.
FMES may render partial invoices and require progressive payments and payment is due against each invoice rendered, not upon completion of supply. FMES may render invoices electronically and require payment by electronic funds transfer. If FMES permits payment by credit or debit card, then such payment is subject to validation and authorisation, both at the time of agreement and immediately prior to shipment and FMES may recover as a separate charge any processing fees and other administration costs incurred in processing the credit or debit card transaction.
If the Customer pays for Goods by cheque or direct funds transfer then payment only occurs when all cheques or funds transferred have been presented and cleared in full by FMES’s bank.
The Customer must make all payments due under these Conditions of Sale without any set-off, counterclaim, deduction or condition unless FMES otherwise agrees in writing signed by an authorised Manager of FMES.
If FMES is required to take legal action to recover monies due to FMES from the Customer, then FMES may charge and recover from the Customer an amount to cover all and any costs (including legal costs) incurred by FMES in respect of such legal action.
.Risk and Ownership
7.1 In the case of products to be delivered to the Customer’s property, risk of loss of or damage to the products shall pass to the Customer on delivery, unless the Customer wrongfully fails to take delivery of the products, in which case such risk shall pass to the Customer at the time when FMES has attempted to deliver the products. In the case of products which the Customer orders to be collected from FMES address, risk of damage or loss to the products shall pass to the Customer at the time of collection.
7.2 Ownership of any product supplied shall not pass to the Customer until full payment of the purchase price of the products and of all other amounts owing to FMES has been made (in cash or cleared funds). If the Customer is late in paying any sum to FMES, then FMES shall be entitled to the immediate return of all products where ownership has not passed to the Customer. The Customer authorises FMES and its agents to recover any such products in such circumstance, and to enter any premises of the Customer for that purpose.
7.3 Demand for or recovery of the products by FMES shall not of itself discharge either the Customer’s liability to pay the whole of the price and take delivery of the products or FMES’s right to sue for the whole of the price.
Product and Availability Information
8.1 FMES reserves the right, without prior notice, to discontinue any product or to make design changes as part of its continuous programme of product improvement, or to assist product availability, and such changes may take place during the life of any FMES catalogue. The most up to date information on the availability and design of the products FMES supplies is available on the FMES website.
8.2 Unless otherwise confirmed in writing, nothing on the FMES website or in any FMES catalogue is to be taken as a representation of the source of origin, manufacture, or production of the products or any part of them.
Warranties and Remedies
9.1 FMES warrants that no product purchased from FMES is materially defective.
9.2 To the extent permitted by the Competition and Consumer Act 2011 (CCA), in the event of any such Product being materially defective, and subject to the provisions of clause 5 (Inspection, Transit Delays and Non-Delivery) surrounding defects apparent on delivery, FMES will (at its option) replace or repair the product or refund the purchase price.
9.3 To the extent permitted by the Competition and Consumer Act 2011 (CCA), in the event of any Service being defective, and subject to the provisions of clause 13 (Services) provided using reasonable care and skill, FMES will, at its option, either re-provide the Service or supply to the Customer free of charge a substitute Product in place of the defectively serviced Product.
9.4 These warranties shall not apply to any defect which arises from improper use, failure to follow the product instructions, or any repair or modification made without the consent of FMES.
9.5 To the extent permitted by the CCA, the remedies set out in this clause 9 shall be the Customer’s sole remedies for any breach of warranty and in respect of the supply or non-supply of products and/or services.
9.6 The availability of the remedies set out in this clause 9 is subject to:
- a claim being made in writing to FMES, prior to the return of any defective product, and within 12 months of the original date of despatch or date of service, or such other periods as may be indicated by FMES for specific products or services from time to time in writing; and
- the Customer returning or disposing of the relevant products, or making them available for collection by FMES, in accordance with FMES’s instructions and suitably packaged. In particular, for any returns, the Customer must obtain a returns number from FMES and quote this on all paperwork, and state the original invoice number in respect of the products and the nature of any claimed defect.
9.7 Where the Customer returns defective products otherwise than in accordance with these provisions, FMES may refuse such products and return them to the Customer at the cost of the Customer.
9.8 Any products which are replaced by FMES shall become the property of FMES. Title to replacement products shall pass to the Customer in accordance with the provisions of clause 7 (Risk and Ownership), and the period of the replacement product’s warranty shall be the unexpired period of the defective product’s warranty.
9.9 The Customer shall have no remedy in respect of any untrue statement made to it upon which it relied in ordering products and/or services (unless such untrue statement was made fraudulently) other than any remedy it may have set out expressly in these terms and conditions of sale.
9.10 Save as expressly provided in these terms and conditions of sale, all implied warranties, terms and conditions (whether statutory or otherwise) concerning the supply or non-supply of products and/or services are excluded to the fullest extent permitted by law (including, without limitation, the implied terms of satisfactory quality, fitness for purpose and provision of services with reasonable care and skill).
9.11 Except as required by law, FMES will not be liable to the Customer for any loss, damage or liability of any kind whatsoever which arises out of the breach of implied warranties, terms or conditions (statutory or otherwise) or breach of any other duty of any kind imposed on FMES by operation of law. The Customer acknowledges that it is responsible for ensuring that the products and services it orders are fit for the purposes for which it intends to use them.
9.12. In giving the warranties set out above, FMES does not exclude or limit any application of the Competition and Consumer Act 2011 (CCA) where to do so would contravene the CCA or cause any term of these conditions to be void (“Non Excludable Condition”). These warranties are in addition to any Non- Excludable Conditions.
Export Control and Limitations of Use
10.1 The Customer shall not, directly or indirectly, sell, permit to be sold, dispose of, export, re-export or otherwise provide products to any country or entity under sanction or embargo administered by Australia or any other country.
10.2 The Customer certifies that products purchased from FMES will not be used, sold or incorporated into products used directly or indirectly in the design, development, production or use of chemical, biological or nuclear weapons, delivery vehicles and systems of the same or in the development of any weapons of mass destruction.
10.3 Products sold by FMES are not recommended or authorised for use in life support, surgical implantation, nuclear or aircraft applications or for any use or application in which the failure of a single component could cause substantial harm to persons or property.
10.4 Classifications of product for export purposes, including ECCN and Harmonised Tariff codes, are made for internal use by FMES only. Such information is provided by FMES in good faith based on the information available to it at the time of compilation. FMES makes no warranty or representation that such information is up to date or correct, and shall not be liable to the Customer for any form of loss or damage suffered by the Customer as a result of reliance upon such information. Use of the information is done so at the Customer’s own risk with no recourse to FMES. The Customer is responsible for ensuring compliance with all applicable export legislation, including determining the correct classification of an item at the time of any onward export.
11.1 FMES shall not be under any liability for damage, losses (whether direct, indirect or consequential), expenses, liabilities, loss of profits, business or economic loss, depletion of goodwill, costs (including legal costs), claims, demands, proceedings, judgments or otherwise resulting from the failure to give advice or information or the giving of incorrect advice or information (including through FMES technical support) whether or not due to its negligence or that of its employees, agents or sub-contractors.
11.2 FMES shall not be liable for economic loss, punitive damages, loss of revenue, loss of profits or expected future business, damage to reputation or goodwill, loss of any order or contract or any consequential or indirect loss or damage, all as may result from, or be connected with:
- any express or implied terms of the contract between FMES and the Customer, or of any order accepted by FMES;
- any duty of any kind imposed on FMES by law arising out of or in relation to the contract between FMES and the Customer or order;
- any defect in the products or services;
- intellectual property rights infringement; or
- any other loss whatsoever arising out of these terms and conditions of sale.
11.3 If, not withstanding any other provisions in these terms and conditions of sale including without limitation clauses 9 (Warranties and Remedies), 10 (Export Control and Limitations of Use) and 11 (Liability), any liability attaches to FMES, FMES’s liability to the Customer arising out of or in connection with these terms and conditions of sale or any order whether in contract, tort or otherwise in respect of one or more of:
- any express or implied terms of the contract between FMES and the Customer, or of any order accepted by FMES;
- any duty of any kind imposed on FMES by law arising out of or in relation to the contract between FMES and the Customer or the order;
- any defect in the products or services;
- intellectual property rights infringement; or
- any other loss whatsoever arising out of these terms and conditions of sale;
shall be limited in the aggregate to $100,000 or the total value of the order, whichever is greater.
11.4 Nothing in these terms and conditions of sale (including without limitation this clause 11) shall exclude or limit the liability of FMES for death or personal injury caused by the negligence of FMES or its employees, agents or sub-contractors, or for fraud or anything else which cannot by law be limited or excluded.
Cancellations and Returns
12.1 FMES may, at its discretion and in writing, allow an order to be cancelled where there is no fault with the product subject to FMES recovering from the Customer the costs incurred by FMES, and subject to the processing charge provided for in this clause 12.
12.2 In the event of cancellation of part of any order only, FMES may invoice the Customer any difference in selling price per unit applicable to the quantity actually despatched up to the time of cancellation compared to the quantity ordered.
12.3 A processing charge may apply in respect of all products returned other than due to defects covered by the warranty at clause 9 (Warranties and Remedies). FMES reserves the right to apply a handling charge of 20% of invoice value.
12.4 Customers may only return products to FMES, and receive a credit or refund and on the following conditions:
- The Customer must contact FMES in advance (phone 1300 656 636) to obtain prior consent and a returns number (to be quoted on all relevant paperwork);
- Return must be made within 30 days of the date of delivery (as stated on the delivery documentation) or collection of such product(s).
- Products must be returned to FMES in their original condition and packaging, unused and in a condition which will enable them to be immediately fit for re-sale;
- The Customer must follow any specific instructions which appear on the FMES website (including those available in the Product Returns section) or with any product regarding its return to FMES; and
- Products must be adequately packed and despatched freight prepaid, clearly labelled to: FMES AUSTRALIA, 26 Horizon Bvd, Hampton Park, VIC 3976.
- The Customer must quote the invoice details or the FMES reference number on the FMES Customer Returns Form from the original despatch note, otherwise any credit given for the returned products will be based upon the lowest sales price.
12.5 Where the Customer returns products to FMES not in accordance with clause 12.4 (i) – (vi) above (for example, after the period for returns has expired or in an unfit state) FMES may refuse to accept the return and return the products to the Customer at the Customer’s expense or may apply a handling charge which relates to the actual cost of reprocessing (subject to the minimum charge set out on the FMES website).
12.6 FMES accepts no responsibility for any loss of or damage to products in transit from Customer to FMES or for any items received by FMES with them.
12.7 The Customer may only cancel or amend scheduled orders (i.e. orders for Products to be delivered periodically and which are specifically sourced for the Customer) if notice is received in writing at least 14 days prior to the next delivery date.
13.1 FMES does not currently offer repair services.
A force majeure event is any event beyond the reasonable control of FMES (including but not limited to government actions, war, fire, explosion, flood, labour disputes, traffic congestion, the downtime of any external line, or FMES’s inability to procure services, materials or articles required for the performance of the contract except at enhanced prices). If FMES is prevented or restricted from carrying out all or any of its obligations under these terms and conditions of sale by reason of any force majeure event, then FMES shall be relieved of its obligations during the period that such event continues, and shall not be liable for any delay and/or failure in the performance of its obligations during such period. If the force majeure event continues for a period longer than fourteen days, FMES may cancel the affected order or cancel the whole or any part of these terms and conditions of sale, without any liability to the Customer.
Intellectual Property Right
All intellectual property, including: copyright, patents, design rights, trademarks, software and licences in, or related to, Goods supplied by FMES, and/or Services provided by FMES, remains the property of FMES and/or the Manufacturer, and, unless FMES agrees to the contrary in writing signed by an authorised manager of FMES, the Customer has no right to re-use, re-license, or re-sell the intellectual property in any form to third parties.
Use of Goods which contain, or are to be used with, standard or custom software or firmware may be subject to the Customer’s acceptance of additional terms and conditions in separate FMES or third-party licence agreements (Third Party Licence Agreements). Where there is a conflict between any term of a Third Party Licence Agreement and these Conditions of Sale, the Third Party Licence Agreement will prevail to the extent of the inconsistency.
In the absence of a Third Party Licence Agreement, the Customer is granted a non-exclusive, non-transferable and royalty free licence to use the intellectual property solely in conjunction with and to enable the use and maintenance of the Goods, with no rights to sublicense, disclose, disassemble, decompile, reverse engineer, or otherwise modify the intellectual property