Terms & Conditions.
his document sets forth the Terms & Conditions of Sale (“Terms”) for goods manufactured and/or supplied, and services provided, by Flocca Pty Limited (ABN 66 630 579 403) of Queensland, Australia (“Flocca”) and sold to the original purchaser thereof (“Buyer”). Unless otherwise specifically stated herein, the term “Flocca” includes only Flocca Company and none of its affiliates. Unless otherwise specifically stated in a previously-executed written purchase agreement signed by authorized representatives of Flocca and Buyer, these Terms establish the rights, obligations and remedies of Flocca and Buyer which apply to this offer and any resulting order or contract for the sale of Flocca’s goods and/or services (“Products”).
1 Definitions
In this agreement:
1.1 “Carrier” means any person or business used by Flocca to deliver Goods from Flocca to you, whether all or part of the distance of the delivery.
1.2 “Goods” means any goods and products offered for sale by Flocca.
1.3 “Written Material” means any informational material published by Flocca in any medium with a view to providing information to any customer or prospective customer of Flocca.
2 Our contract with you and applicable terms
2.1 Flocca shall accept orders placed via the online shop, email or telephone through Buyer’s issuance of a purchase order document against Flocca’s offer.
2.2 Subject to clause 2.1, once an order is placed, Flocca shall send a Tax Invoice to you confirming the details of your order including the price of the Goods, the cost of delivery, the terms of payment and the estimated date of delivery of your order. Provisions contained in Buyer’s purchase documents (including electronic commerce interfaces) that materially alter, add to or subtract from the provisions of these Terms are not a part of the Contract. The terms of payment of each order will vary depending on the Goods ordered.
2.3 Should Flocca not be able to deliver the ordered Goods due to the Goods being out-of-stock or for some other reason beyond the control of Flocca, Flocca will offer you alternative Goods before any agreement for sale of the Goods is made binding and enforceable. Should this occur you may
2.2 Subject to clause 2.1, once an order is placed, Flocca shall send a Tax Invoice to you confirming the details of your order including the price of the Goods, the cost of delivery, the terms of payment and the estimated date of delivery of your order. Provisions contained in Buyer’s purchase documents (including electronic commerce interfaces) that materially alter, add to or subtract from the provisions of these Terms are not a part of the Contract. The terms of payment of each order will vary depending on the Goods ordered.
2.3 Should Flocca not be able to deliver the ordered Goods due to the Goods being out-of-stock or for some other reason beyond the control of Flocca, Flocca will offer you alternative Goods before any agreement for sale of the Goods is made binding and enforceable. Should this occur you may
2.3.1 accept the alternative Goods offered by Flocca by payment of the Tax Invoice pursuant to the terms of payment outlined in the invoice to Flocca;
2.3.2 cancel your order by contacting Flocca by email or telephone; or
2.3.3 leave the order valid, but amend the out-of-stock Goods by contacting Flocca by email or telephone. Should this occur, Flocca will send you an amended Tax Invoice detailing the price of the Goods, the cost of delivery, the terms of payment and the estimated date of delivery of your order. You may accept the amended Tax Invoice offered by Flocca by payment of the Tax Invoice pursuant to the terms of payment outlined in the invoice to Flocca.
2.3.2 cancel your order by contacting Flocca by email or telephone; or
2.3.3 leave the order valid, but amend the out-of-stock Goods by contacting Flocca by email or telephone. Should this occur, Flocca will send you an amended Tax Invoice detailing the price of the Goods, the cost of delivery, the terms of payment and the estimated date of delivery of your order. You may accept the amended Tax Invoice offered by Flocca by payment of the Tax Invoice pursuant to the terms of payment outlined in the invoice to Flocca.
2.4 Receipt of payment of your order by Flocca pursuant to the terms of payment outlined in the invoice for your order is evidence of a binding and enforceable agreement between you and Flocca, and this agreement can only be modified by written agreement between you and Flocca.
2.5 The Vendor’s quotation is not to be construed as an obligation to sell Goods and/or supply the Services to the Buyer but is rather an invitation to the Buyer to make an offer to purchase Goods and/or Services subject to these terms. The Buyer’s Order shall constitute such an offer to purchase. The Vendor reserves the right to make alterations to its quotation at any time before its acceptance of an Order from the Buyer.
2.6 Notwithstanding that a quotation has been made no contract exists between the Vendor and the Buyer until the Vendor accepts the Buyer’s Order in writing.
2.7 The Vendor’s quotation relates only to such Goods and/or Services as are specified therein and is given subject to such Goods and or Services being available at the time of receipt of the Buyer’s Order. Notwithstanding any stipulation or implication in such quotation, the Vendor reserves the right to obtain such Goods or any part thereof from any factory or works in the Vendor’s organisation, including any subsidiary of affiliate thereof.
2.8 Prices included in the Vendor’s quotation are based upon the quantities of Goods and description of the Services referred to in the quotation. Should the Buyer offer to purchase a quantity of Goods or type of Services which is at variance with that referred to in the quotation, the Vendor reserves the right to amend the price quoted for such Goods and/or Services. 2.9 The quotation remains open for acceptance for a period of thirty (30) days from the date of the quotation unless an alternate period is specified in the quotation.
2.5 The Vendor’s quotation is not to be construed as an obligation to sell Goods and/or supply the Services to the Buyer but is rather an invitation to the Buyer to make an offer to purchase Goods and/or Services subject to these terms. The Buyer’s Order shall constitute such an offer to purchase. The Vendor reserves the right to make alterations to its quotation at any time before its acceptance of an Order from the Buyer.
2.6 Notwithstanding that a quotation has been made no contract exists between the Vendor and the Buyer until the Vendor accepts the Buyer’s Order in writing.
2.7 The Vendor’s quotation relates only to such Goods and/or Services as are specified therein and is given subject to such Goods and or Services being available at the time of receipt of the Buyer’s Order. Notwithstanding any stipulation or implication in such quotation, the Vendor reserves the right to obtain such Goods or any part thereof from any factory or works in the Vendor’s organisation, including any subsidiary of affiliate thereof.
2.8 Prices included in the Vendor’s quotation are based upon the quantities of Goods and description of the Services referred to in the quotation. Should the Buyer offer to purchase a quantity of Goods or type of Services which is at variance with that referred to in the quotation, the Vendor reserves the right to amend the price quoted for such Goods and/or Services. 2.9 The quotation remains open for acceptance for a period of thirty (30) days from the date of the quotation unless an alternate period is specified in the quotation.
3 Not Part of Contract
3.1 All descriptive and shipping specifications, drawings, dimensions and weights submitted by the Vendor in relation to any quotation are approximate only and any descriptions, illustrations and data contained in any catalogues price lists and/or other advertising or promotional material are intended by the Vendor only to present a general view of Goods and/or Services described therein and none of such specifications, drawings, dimensions, weights, descriptions, illustrations or data shall form part of any contract arising between the Vendor and the Buyer.
4 Price and Payment
4.1 The price of any and all Goods contained in any Written Material of Flocca is subject to change from time to time at the sole discretion of Flocca.
4.2 All payments must be made in Australian dollars.
4.3 Full payment of the amount stipulated in the Tax Invoice for your order must be made and received by Flocca before the order will be delivered to you. For Internet orders, the purchase price is due at the time and in the manner set forth at www.flocca.com. Invoices for all other orders are due and payable (1) NET 14 DAYS from date of the invoice without regard to delays for inspection or transportation, with payments to be made by wire transfer to the account stated on the front of Flocca’s invoice, or (2) for customers with no established credit, Flocca may require cash or credit card payment in advance of delivery.
4.4 Flocca agrees to pay banking charges by the receiving bank on payments to Flocca. All other charges relating to the payment of an order in a currency other than Australian Dollars will be borne by you.
4.5 Flocca advises you that any details given by Flocca to you in relation to exchange rates are approximate only and may vary from time to time.
4.6 You shall pay all sums due to Flocca under the terms of this agreement by the means specified without any set-off, deduction or counterclaim.
4.7 In the event payments are not made or not made in a timely manner, Flocca may, in addition to all other remedies provided at law, either: (1) declare Buyer’s performance in breach and terminate this Contract for default; (2) withhold future shipments until delinquent payments are made; (3) deliver future shipments on a cash-with-order or cash-in-advance basis even after the delinquency is cured; (4) charge interest on the delinquency at a rate of 1-1/2% per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges and/or inventory carrying charges; (5) repossess the Products for which payment has not been made; (6) recover all costs of collection including reasonable attorney’s fees; or (7) combine any of the above rights and remedies as is practicable and permitted by law.
4.8 Buyer is prohibited from setting off any and all monies owed under this from any other sums, whether liquidated or not, that are or may be due Buyer, which arise out of a different transaction with Flocca or any of its affiliates.
4.2 All payments must be made in Australian dollars.
4.3 Full payment of the amount stipulated in the Tax Invoice for your order must be made and received by Flocca before the order will be delivered to you. For Internet orders, the purchase price is due at the time and in the manner set forth at www.flocca.com. Invoices for all other orders are due and payable (1) NET 14 DAYS from date of the invoice without regard to delays for inspection or transportation, with payments to be made by wire transfer to the account stated on the front of Flocca’s invoice, or (2) for customers with no established credit, Flocca may require cash or credit card payment in advance of delivery.
4.4 Flocca agrees to pay banking charges by the receiving bank on payments to Flocca. All other charges relating to the payment of an order in a currency other than Australian Dollars will be borne by you.
4.5 Flocca advises you that any details given by Flocca to you in relation to exchange rates are approximate only and may vary from time to time.
4.6 You shall pay all sums due to Flocca under the terms of this agreement by the means specified without any set-off, deduction or counterclaim.
4.7 In the event payments are not made or not made in a timely manner, Flocca may, in addition to all other remedies provided at law, either: (1) declare Buyer’s performance in breach and terminate this Contract for default; (2) withhold future shipments until delinquent payments are made; (3) deliver future shipments on a cash-with-order or cash-in-advance basis even after the delinquency is cured; (4) charge interest on the delinquency at a rate of 1-1/2% per month or the maximum rate permitted by law, if lower, for each month or part thereof of delinquency in payment plus applicable storage charges and/or inventory carrying charges; (5) repossess the Products for which payment has not been made; (6) recover all costs of collection including reasonable attorney’s fees; or (7) combine any of the above rights and remedies as is practicable and permitted by law.
4.8 Buyer is prohibited from setting off any and all monies owed under this from any other sums, whether liquidated or not, that are or may be due Buyer, which arise out of a different transaction with Flocca or any of its affiliates.
5 Prices and Contract Price Adjustment
5.1 Unless otherwise stated in writing, prices quoted by the Vendor are based on the costs of material, labour, freight, insurance, and duties and other costs and charges ruling at the date of any quotation or such other date specifically referred to therein in respect of such matters and such prices shall be subject to adjustment in respect of any variation in such costs, rates or charges or their method of assessment occurring after that date and until the completion of any contract between the Vendor and the Buyer based on such quotation including, without limitation, changes in:
(i) Australian costs;
(ii) overseas costs;
(iii) foreign currency and exchange rates (refer to clause 10.15);
(iv) customs and excise duties, levies, charges, imposts and the like; and
(v) transport costs.
5.2 The Vendor will give the Buyer reasonable notice of any increase in the prices quoted where the amount of such increase is, in the Vendor’s opinion, substantial. Upon receipt of such notice, the Buyer may terminate the contract with the Vendor without liability, provided that the Buyer gives the Vendor 5 business days’ notice in writing of such termination and provided that it has first made payment to the Vendor for any Goods and/or Services supplied by the Vendor to the Buyer prior to such termination.
5.3 Charges specifically excluded in any quotation shall be to the Buyer’s account at cost.
5.4 Unless otherwise stated in writing in any quotation sales tax or any other tax, levy or the like imposed on either the sale, manufacture, dealing with, distribution, import or use of goods or measured by the selling price of goods or otherwise howsoever levied against or added to the price of goods shall in all cases be an excluded cost that shall be added to the price for payment by the Buyer.
5.5 Unless otherwise stated in writing in any quotation customs duties, levies, taxes, (carbon) costs and the like imposed in respect of the goods applicable at the date of any quotation or such other date specifically referred to therein in respect of such matters will be added to the price and any variation thereto, for whatever reason, shall be to the Buyer’s account.
5.6 GST means any tax, levy, charge or impost implemented under the A New Tax System (Goods and Services Tax) Act (the “GST Act”) or any Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act.
5.7 The Buyer shall pay that invoice pursuant to the terms and conditions of this Agreement.
5.2 The Vendor will give the Buyer reasonable notice of any increase in the prices quoted where the amount of such increase is, in the Vendor’s opinion, substantial. Upon receipt of such notice, the Buyer may terminate the contract with the Vendor without liability, provided that the Buyer gives the Vendor 5 business days’ notice in writing of such termination and provided that it has first made payment to the Vendor for any Goods and/or Services supplied by the Vendor to the Buyer prior to such termination.
5.3 Charges specifically excluded in any quotation shall be to the Buyer’s account at cost.
5.4 Unless otherwise stated in writing in any quotation sales tax or any other tax, levy or the like imposed on either the sale, manufacture, dealing with, distribution, import or use of goods or measured by the selling price of goods or otherwise howsoever levied against or added to the price of goods shall in all cases be an excluded cost that shall be added to the price for payment by the Buyer.
5.5 Unless otherwise stated in writing in any quotation customs duties, levies, taxes, (carbon) costs and the like imposed in respect of the goods applicable at the date of any quotation or such other date specifically referred to therein in respect of such matters will be added to the price and any variation thereto, for whatever reason, shall be to the Buyer’s account.
5.6 GST means any tax, levy, charge or impost implemented under the A New Tax System (Goods and Services Tax) Act (the “GST Act”) or any Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act.
5.7 The Buyer shall pay that invoice pursuant to the terms and conditions of this Agreement.
6 Information you give Flocca
6.1 You agree that you have provided, and will continue to provide, accurate, up to date and complete information about yourself to Flocca to enable Flocca to provide you with the Goods ordered.
6.2 Flocca agrees to use reasonable endeavours to respond to any point of dissatisfaction by you in relation to any Goods purchased, provided that you contact Flocca within three (3) months of the delivery of the Goods.
6.3 The Buyer’s Order shall be accompanied by sufficient information to enable the Vendor to commence work and proceed without interruption. The Buyer shall be responsible for, and warrant, the accuracy of the information it provides.
6.4 The Buyer shall be responsible for and bear the cost of any alteration to Goods and/or Services supplied by the Vendor arising from any discrepancy, error or omission in any drawing, specification or other information supplied by or approved by the Buyer.
6.2 Flocca agrees to use reasonable endeavours to respond to any point of dissatisfaction by you in relation to any Goods purchased, provided that you contact Flocca within three (3) months of the delivery of the Goods.
6.3 The Buyer’s Order shall be accompanied by sufficient information to enable the Vendor to commence work and proceed without interruption. The Buyer shall be responsible for, and warrant, the accuracy of the information it provides.
6.4 The Buyer shall be responsible for and bear the cost of any alteration to Goods and/or Services supplied by the Vendor arising from any discrepancy, error or omission in any drawing, specification or other information supplied by or approved by the Buyer.
7 Delivery
7.1 Deliveries will be made by the Carrier to the address stipulated in your order. You must ensure that someone is present to accept delivery of your order.
7.2 All dates or times quoted for completion or delivery shall be calculated from date of acceptance by the Vendor of the Buyer’s Order, together with sufficient information as referred to in this document.
7.3 All goods are at Buyer’s risk from the time of delivery or collection from Flocca’s premises and such goods shall be fully insured by Buyer until Flocca is paid.
7.4 Flocca will use commercially reasonable efforts to deliver the Products ordered herein within the time specified on the face of this Contract or, if no time is specified, within Flocca’s normal lead-time necessary for Flocca to deliver the Products sold hereunder. Upon prior agreement with Buyer and for an additional charge, Flocca will deliver the Products on an expedited basis.
7.5 If the Goods ordered are not available to be delivered all at once, Flocca may, at its discretion and on its selected terms and conditions, give you the option to receive the Goods ordered in instalments. If you accept this offer by Flocca, you must ensure that someone is present to accept delivery of each instalment of your order.
7.6 Standard service delivery hours are 8 am – 5 pm Monday through Friday, excluding holidays.
7.2 All dates or times quoted for completion or delivery shall be calculated from date of acceptance by the Vendor of the Buyer’s Order, together with sufficient information as referred to in this document.
7.3 All goods are at Buyer’s risk from the time of delivery or collection from Flocca’s premises and such goods shall be fully insured by Buyer until Flocca is paid.
7.4 Flocca will use commercially reasonable efforts to deliver the Products ordered herein within the time specified on the face of this Contract or, if no time is specified, within Flocca’s normal lead-time necessary for Flocca to deliver the Products sold hereunder. Upon prior agreement with Buyer and for an additional charge, Flocca will deliver the Products on an expedited basis.
7.5 If the Goods ordered are not available to be delivered all at once, Flocca may, at its discretion and on its selected terms and conditions, give you the option to receive the Goods ordered in instalments. If you accept this offer by Flocca, you must ensure that someone is present to accept delivery of each instalment of your order.
7.6 Standard service delivery hours are 8 am – 5 pm Monday through Friday, excluding holidays.
8 Packing
8.1 Flocca components are packed in cardboard boxes. Unless stated otherwise in any quotation additional packing is not included in the contract price. Any packing required by the Buyer and not specifically stated as being included in any quotation shall be to the Buyer’s account.
8.2 Unless otherwise stipulated in writing by the Vendor any packing which may be provided by the Vendor is not returnable and must be disposed of by the Buyer.
8.2 Unless otherwise stipulated in writing by the Vendor any packing which may be provided by the Vendor is not returnable and must be disposed of by the Buyer.
9 Point of Delivery
9.1 Unless stated otherwise in any quotation, Goods are supplied ex-works at the place of manufacture and delivery to a carrier’s vehicle, including loading, shall constitute delivery by the Vendor to the Buyer. The carrier’s vehicle shall be of a type allowing vertical or horizontal access for loading as required by the Vendor.
9.2 Unless the Vendor has provided in any quotation for delivery beyond the place of manufacture, where the Buyer requests delivery beyond such point the Vendor, at its sole discretion, may agree to act as agent for the Buyer to effect such delivery and all costs of carriage and insurance in relation thereto will be to the Buyer’s account. In any event the Buyer shall ensure provision of reasonable access to the point of delivery and for off-loading and/or handling without delay.
9.2 Unless the Vendor has provided in any quotation for delivery beyond the place of manufacture, where the Buyer requests delivery beyond such point the Vendor, at its sole discretion, may agree to act as agent for the Buyer to effect such delivery and all costs of carriage and insurance in relation thereto will be to the Buyer’s account. In any event the Buyer shall ensure provision of reasonable access to the point of delivery and for off-loading and/or handling without delay.
10 Damage or Loss in Transit
10.1 Where damage to the Goods in the course of delivery is the Vendor’s responsibility, the Vendor shall at its sole discretion repair or replace free of charge Goods so damaged provided the Vendor is notified of such damage within three days of delivery.
10.2 Any claims for shortages in deliveries shall be notified in writing to the Vendor within ten days of receipt of such delivery.
10.3 The Vendor reserves the right to make partial deliveries of any Goods the subject of any contracts between the Vendor and the Buyer and to invoice such deliveries separately. Unless otherwise agreed in writing by the Vendor and the Buyer, where such invoices relate to complete and usable Goods, payment thereof will fall due within the stated terms.
10.4 If after a period of 14 days from the date of notification by the Vendor to the Buyer that Goods the subject of a contract between the Vendor and the Buyer are ready for delivery and delivery of such Goods is delayed for any reason beyond the Vendor’s reasonable control the Vendor shall be entitled, at its sole discretion, to arrange for suitable storage of such Goods at its premises or elsewhere and the Vendor shall take reasonable measures to protect the Buyer’s interest in such goods. To the extent permitted by law, the Buyer shall pay all reasonable costs of such storage together with all reasonable costs of insurance, demurrage, handling and other contingent charges applicable as set out in invoices for payment sent to the Buyer by the Vendor in accordance with the stated terms.
10.5 Except where stipulated in the quotation, all freight and transport costs are at the Buyer’s cost. In the absence of instructions from the Buyer on the choice of carrier, the Vendor will instruct on the Buyer’s behalf a carrier to complete delivery. For the avoidance of doubt, delivery shall not be by way of airfreight unless agreed to in writing by the Vendor and set out expressly in the Vendor’s quotation.
10.6 Risk in Goods the subject of any contract for repair, overhaul, modification or other work, between the Vendor and the Buyer shall remain with the Buyer. The Buyer shall be responsible for effecting insurance which provides cover for the goods which are being repaired, including at the Vendor’s premises, or at subcontractor’s premises, or in transit to and from those premises.
10.7 Buyer will promptly inspect and accept any Products delivered pursuant to this Contract after receipt of such Products. In the event the Products do not conform to any applicable specifications, Buyer will promptly notify Flocca of such nonconformance in writing. Flocca will have a reasonable opportunity to repair or replace the nonconforming product at its option. Buyer will be deemed to have accepted any Products delivered hereunder and to have waived any such nonconformance in the event such a written notification is not received by Flocca within thirty (30) days of delivery.
10.2 Any claims for shortages in deliveries shall be notified in writing to the Vendor within ten days of receipt of such delivery.
10.3 The Vendor reserves the right to make partial deliveries of any Goods the subject of any contracts between the Vendor and the Buyer and to invoice such deliveries separately. Unless otherwise agreed in writing by the Vendor and the Buyer, where such invoices relate to complete and usable Goods, payment thereof will fall due within the stated terms.
10.4 If after a period of 14 days from the date of notification by the Vendor to the Buyer that Goods the subject of a contract between the Vendor and the Buyer are ready for delivery and delivery of such Goods is delayed for any reason beyond the Vendor’s reasonable control the Vendor shall be entitled, at its sole discretion, to arrange for suitable storage of such Goods at its premises or elsewhere and the Vendor shall take reasonable measures to protect the Buyer’s interest in such goods. To the extent permitted by law, the Buyer shall pay all reasonable costs of such storage together with all reasonable costs of insurance, demurrage, handling and other contingent charges applicable as set out in invoices for payment sent to the Buyer by the Vendor in accordance with the stated terms.
10.5 Except where stipulated in the quotation, all freight and transport costs are at the Buyer’s cost. In the absence of instructions from the Buyer on the choice of carrier, the Vendor will instruct on the Buyer’s behalf a carrier to complete delivery. For the avoidance of doubt, delivery shall not be by way of airfreight unless agreed to in writing by the Vendor and set out expressly in the Vendor’s quotation.
10.6 Risk in Goods the subject of any contract for repair, overhaul, modification or other work, between the Vendor and the Buyer shall remain with the Buyer. The Buyer shall be responsible for effecting insurance which provides cover for the goods which are being repaired, including at the Vendor’s premises, or at subcontractor’s premises, or in transit to and from those premises.
10.7 Buyer will promptly inspect and accept any Products delivered pursuant to this Contract after receipt of such Products. In the event the Products do not conform to any applicable specifications, Buyer will promptly notify Flocca of such nonconformance in writing. Flocca will have a reasonable opportunity to repair or replace the nonconforming product at its option. Buyer will be deemed to have accepted any Products delivered hereunder and to have waived any such nonconformance in the event such a written notification is not received by Flocca within thirty (30) days of delivery.
11 Cancellation of order and Return of Goods
11.1 Buyer may cancel goods orders subject to fair charges (typically, 30% will apply on stock items) for Flocca’s expenses including handling, inspection, restocking, freight and invoicing charges as applicable, provided that Buyer returns such goods to Flocca at Buyer’s expense within 30 days of delivery and in the same condition as received including original packaging. Credit on Indent goods will be accepted at the discretion of Flocca management. The flow meter and solenoid valve are considered consumables and can only be returned after inspection by Flocca, providing these have not been in service for more than 1 month.
11.2 Notwithstanding clause 12.1, Flocca agrees to replace any Goods purchased from Flocca that have a material defect (which shall be determined By Flocca in their sole discretion).
11.2 Notwithstanding clause 12.1, Flocca agrees to replace any Goods purchased from Flocca that have a material defect (which shall be determined By Flocca in their sole discretion).
12 Warranty
12.1 Flocca warrants that Products sold hereunder will be free from defects in material and workmanship and will conform to any express written warranty pertaining to the specific goods purchased, which for most Flocca instruments is for a period of six (6) months from delivery. No warranties are extended to consumable items such as, without limitation, batteries, flow meters and solenoid valves. Parts provided by Flocca in the performance of services may be new or refurbished parts functioning equivalent to new parts. Any non-functioning parts that are repaired by Flocca shall become the property of Flocca. All other guarantees, warranties, conditions and representations, either express or implied, whether arising under any statute, law, commercial usage or otherwise, including implied warranties of merchantability and fitness for a particular purpose, are hereby excluded. The sole remedy for Products not meeting this Limited Warranty is replacement, credit or refund of the purchase price. This remedy will not be deemed to have failed of its essential purpose so long as Flocca is willing to provide such replacement, credit or refund.
12.2 Flocca considers the flow meter and solenoid valve consumables since these components come in direct contact with corrosive chemicals when in use. Flocca does not offer any warranty on the flow meter and solenoid valve components, unless these were deemed faulty on arrival.
12.3 The Buyer is entitled to a replacement or refund for a major failure. The Buyer is also entitled to have such Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
12.4 If it is proven to the Vendor’s reasonable satisfaction that Goods manufactured by the Vendor are not free from defects due to faulty design, materials and workmanship then the Vendor shall, at no cost and at its option, either: (i) repair such Goods; (ii) replace such Goods with the same or equivalent Goods at the point of delivery applicable to the contract under which such Goods were supplied to the Buyer by the Vendor; (iv) refund to the Buyer the contract price of such Goods and/or Services. The warranty above does not extend to include the Vendor’s labour costs. Any removal, reinstallation and other consequential costs will be for the Buyer’s account. The warranty cover for repaired/replaced items will expire on the same date as the warranty for the rest of the Goods. When warranty repairs are required to be carried out at locations other than Vendor Service Centres, then the cost for labour, travel, travel time and accommodation costs incurred by the Vendor will be to the Buyer’s account.
12.5 This warranty does not apply in respect of defects due to or arising from: (i) incorrect or negligent handling, disregard of operating and/or maintenance instructions, overloading, unsuitable operating conditions, defective civil or building work, lightning, accident, neglect, faulty erection (unless carried out by the Vendor), acts of God, causes beyond the Vendor’s control or whilst unauthorised repairs or alterations have been carried out or non-compliance with Goods’ power and grounding specifications; (ii) the use of goods of consumable nature; or (iii) fair wear and tear.
12.6 This warranty does not apply unless: (i) the Goods have been properly handled, located, used, maintained and stored; (ii) defects occur within 6 calendar months after the Goods have been delivered to the Buyer; or, if delivery was delayed for reasons beyond the Vendor’s control then within 6 calendar months of deliveries or within 18 calendar months after the Vendor first notified the Buyer that the Vendor was ready to deliver the Goods (whichever period expires earlier); (iii) the Vendor is notified in writing within seven days of the alleged defect first coming to the notice of the Buyer; (iv) the Buyer returns the defective Goods to the Vendor, or if necessary, at the sole discretion of the Vendor, to the works where such Goods were manufactured or assembled, free of charge; and the Buyer has fulfilled all of his/its contractual obligations.
12.7 The parties agree that the Buyer shall not make a claim against the Vendor and the Vendor shall have no further liability for or in connection with the Goods and/or Services upon the expiry of six (6) months from the date of delivery of the products and claims made after that period will be time barred absolutely.
12.8 The benefit of this Warranty is personal to the Buyer and is non-assignable without the prior written consent of the Vendor.
12.9 To the fullest extent permitted by law the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
12.2 Flocca considers the flow meter and solenoid valve consumables since these components come in direct contact with corrosive chemicals when in use. Flocca does not offer any warranty on the flow meter and solenoid valve components, unless these were deemed faulty on arrival.
12.3 The Buyer is entitled to a replacement or refund for a major failure. The Buyer is also entitled to have such Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
12.4 If it is proven to the Vendor’s reasonable satisfaction that Goods manufactured by the Vendor are not free from defects due to faulty design, materials and workmanship then the Vendor shall, at no cost and at its option, either: (i) repair such Goods; (ii) replace such Goods with the same or equivalent Goods at the point of delivery applicable to the contract under which such Goods were supplied to the Buyer by the Vendor; (iv) refund to the Buyer the contract price of such Goods and/or Services. The warranty above does not extend to include the Vendor’s labour costs. Any removal, reinstallation and other consequential costs will be for the Buyer’s account. The warranty cover for repaired/replaced items will expire on the same date as the warranty for the rest of the Goods. When warranty repairs are required to be carried out at locations other than Vendor Service Centres, then the cost for labour, travel, travel time and accommodation costs incurred by the Vendor will be to the Buyer’s account.
12.5 This warranty does not apply in respect of defects due to or arising from: (i) incorrect or negligent handling, disregard of operating and/or maintenance instructions, overloading, unsuitable operating conditions, defective civil or building work, lightning, accident, neglect, faulty erection (unless carried out by the Vendor), acts of God, causes beyond the Vendor’s control or whilst unauthorised repairs or alterations have been carried out or non-compliance with Goods’ power and grounding specifications; (ii) the use of goods of consumable nature; or (iii) fair wear and tear.
12.6 This warranty does not apply unless: (i) the Goods have been properly handled, located, used, maintained and stored; (ii) defects occur within 6 calendar months after the Goods have been delivered to the Buyer; or, if delivery was delayed for reasons beyond the Vendor’s control then within 6 calendar months of deliveries or within 18 calendar months after the Vendor first notified the Buyer that the Vendor was ready to deliver the Goods (whichever period expires earlier); (iii) the Vendor is notified in writing within seven days of the alleged defect first coming to the notice of the Buyer; (iv) the Buyer returns the defective Goods to the Vendor, or if necessary, at the sole discretion of the Vendor, to the works where such Goods were manufactured or assembled, free of charge; and the Buyer has fulfilled all of his/its contractual obligations.
12.7 The parties agree that the Buyer shall not make a claim against the Vendor and the Vendor shall have no further liability for or in connection with the Goods and/or Services upon the expiry of six (6) months from the date of delivery of the products and claims made after that period will be time barred absolutely.
12.8 The benefit of this Warranty is personal to the Buyer and is non-assignable without the prior written consent of the Vendor.
12.9 To the fullest extent permitted by law the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
13 Disclaimers
13.1 All descriptions, weights and sizes of Goods are those of the original manufacturers and do not form part of this agreement and may not be relied upon by you.
13.2 Flocca is not an expert in any of its Goods. Accordingly, you may not rely on any statements made by Flocca and/or any of its employees and associates in relation to any Goods offered for sale by Flocca.
13.3 Flocca may at any time and without any advance notice to you or any other person make improvements or changes to its Written Material or to any of the Goods.
13.4 Flocca gives no warranty and makes no representation, express or implied, as to:
13.2 Flocca is not an expert in any of its Goods. Accordingly, you may not rely on any statements made by Flocca and/or any of its employees and associates in relation to any Goods offered for sale by Flocca.
13.3 Flocca may at any time and without any advance notice to you or any other person make improvements or changes to its Written Material or to any of the Goods.
13.4 Flocca gives no warranty and makes no representation, express or implied, as to:
13.4.1 the adequacy or appropriateness of the Goods ordered for your desired purpose and/or any implied warranty or condition as to merchantability or fitness of the Goods for a particular purpose;
13.4.2 the truth of any information given in its Written Material. You are advised that any Written Material of Flocca may include technical inaccuracies or typographical errors;
13.4.3 the compliance of the Goods with any law;
13.4.4 non-infringement of any right by Flocca in relation to the Goods.
13.4.2 the truth of any information given in its Written Material. You are advised that any Written Material of Flocca may include technical inaccuracies or typographical errors;
13.4.3 the compliance of the Goods with any law;
13.4.4 non-infringement of any right by Flocca in relation to the Goods.
13.5 Flocca is not liable in any circumstances for special, indirect or consequential loss or any damages whatsoever resulting from loss of use, loss of data or loss of revenues or profits, whether in an action of contract, negligence or otherwise, arising out of or in connection with your use of the website of Flocca, the purchase of the Goods and their use.
13.6 Except for a claim for personal injury, the liability of Flocca for any claim against Flocca is limited to the value of the Goods you have purchased.
13.6 Except for a claim for personal injury, the liability of Flocca for any claim against Flocca is limited to the value of the Goods you have purchased.
14 Software
14.1 All licenses to Flocca’s separately-provided software products are subject to the separate software license agreement(s) accompanying the software media. In the absence of such terms and for all other software, Flocca grants Buyer only a personal, non-exclusive license to access and use the software provided by Flocca with Products purchased hereunder solely as necessary for Buyer to enjoy the benefit of the Products. A portion of the software may contain or consist of open source software, which Buyer may use under the terms and conditions of the specific license under which the open source software is distributed. Buyer agrees that it will be bound by any and all such license agreements. Title to software remains with the applicable licensor(s).
15 Nondisclosure and Non-use of Proprietary Information
15.1 “Proprietary Information” means any information, technical data or know-how in whatever form, including, but not limited to, documented information, machine readable or interpreted information, information contained in physical components, mask works and artwork, which Flocca considers proprietary or Proprietary, including but not limited to Flocca’s service and maintenance manuals. Buyer and its customers, employees and agents will keep confidential all such Proprietary Information obtained directly or indirectly from Flocca and will not transfer or disclose it without Flocca’s prior written consent, or use it for the manufacture, procurement, servicing or calibration of Products or any similar products, or cause such products to be manufactured, serviced or calibrated by or procured from any other source, or reproduce or otherwise appropriate it without Flocca’s prior written consent. All such Proprietary Information remains property of Flocca. No right or license is granted hereby to Buyer or its customers, employees or agents, expressly or by implication, with respect to the Proprietary Information or any patent, patent application or other proprietary right of Flocca, except for the limited use licenses implied by law.
16 Changes and Additional Charges
16.1 Flocca reserves the right to make changes in design or additions or improvements to any products of the same general class as Products being delivered hereunder without liability or obligation to incorporate such changes, additions or improvements to Products ordered by Buyer unless specifically agreed upon in writing reasonably in advance of such Products’ delivery date. Services which must be performed as a result of any of the following conditions are subject to additional charges for labor, travel and parts: (a) equipment alterations not authorized in writing by Flocca; (b) damage resulting from improper use or handling, accident, neglect, power surge, or operation in an environment or manner in which the instrument is not designed to operate or is not in accordance with Flocca’s operating manuals; (c) the use of parts or accessories not provided by Flocca; (d) damage resulting from acts of war, terrorism or nature; or (e) services outside standard business hours.
17 Indemnity
17.1 You agree to indemnify Flocca against any claim or demand, including reasonable legal fees, made by any third party due to or arising in any way out of your use of the Goods or the infringement by you of any intellectual property right or other right of any person.
17.2 None of the Flocca Indemnified Parties will be liable to Buyer under any circumstances for any special, treble, incidental or consequential damages, including without limitation, damage to or loss of property other than for the Products purchased hereunder; damages incurred in installation, repair or replacement; lost profits, revenue or opportunity; loss of chemicals; loss of use; losses resulting from or related to downtime of the products or inaccurate measurements or reporting; the cost of substitute products; or claims of Buyer’s customers for such damages, howsoever caused, and whether based on warranty, contract, and/or tort (including negligence, strict liability or otherwise). The total liability of the Flocca Indemnified Parties arising out of the performance or non-performance hereunder or Flocca’s obligations in connection with the design, manufacture, sale, delivery, and/or use of Products will in no circumstance exceed the aggregate value of all payments of the contract price made under these terms (except in relation to a consumer contract, as defined in the Australian Consumer Law).
17.3 Notwithstanding anything else contained in this Contract to the contrary, and except to the extent that this Contract applies to a consumer as defined in the Australian Consumer Law, the Vendor shall not be liable (to the fullest extent permitted at law) whether by way of indemnity, guarantee, or by reason of any breach of contract, or of statutory duty or by reason of tort (including but not limited to negligence) or any other legal principle or doctrine for:
17.4 The Buyer indemnifies the Vendor and the Vendor’s representatives (each an “indemnified party”) against all loss, damage, costs and expenses suffered or incurred by an indemnified party as a result of any breach by the Buyer of this Agreement or the Order; or any act or omission by the Buyer or the Buyer’s representatives which, if done or omitted to be done by the Buyer, would constitute a material failure to comply with the Buyer’s obligations under this Agreement, with such debt arising from this indemnity to be immediately due and payable to the Vendor on demand.
17.2 None of the Flocca Indemnified Parties will be liable to Buyer under any circumstances for any special, treble, incidental or consequential damages, including without limitation, damage to or loss of property other than for the Products purchased hereunder; damages incurred in installation, repair or replacement; lost profits, revenue or opportunity; loss of chemicals; loss of use; losses resulting from or related to downtime of the products or inaccurate measurements or reporting; the cost of substitute products; or claims of Buyer’s customers for such damages, howsoever caused, and whether based on warranty, contract, and/or tort (including negligence, strict liability or otherwise). The total liability of the Flocca Indemnified Parties arising out of the performance or non-performance hereunder or Flocca’s obligations in connection with the design, manufacture, sale, delivery, and/or use of Products will in no circumstance exceed the aggregate value of all payments of the contract price made under these terms (except in relation to a consumer contract, as defined in the Australian Consumer Law).
17.3 Notwithstanding anything else contained in this Contract to the contrary, and except to the extent that this Contract applies to a consumer as defined in the Australian Consumer Law, the Vendor shall not be liable (to the fullest extent permitted at law) whether by way of indemnity, guarantee, or by reason of any breach of contract, or of statutory duty or by reason of tort (including but not limited to negligence) or any other legal principle or doctrine for:
17.4 The Buyer indemnifies the Vendor and the Vendor’s representatives (each an “indemnified party”) against all loss, damage, costs and expenses suffered or incurred by an indemnified party as a result of any breach by the Buyer of this Agreement or the Order; or any act or omission by the Buyer or the Buyer’s representatives which, if done or omitted to be done by the Buyer, would constitute a material failure to comply with the Buyer’s obligations under this Agreement, with such debt arising from this indemnity to be immediately due and payable to the Vendor on demand.
18 Applicable Law and Dispute Resolution
18.1 This agreement shall be governed by and construed in accordance with the law of the State of Queensland, Australia.
18.2 Any legal action or proceedings with respect this agreement against any party or any of its property and assets may be brought in the Courts of the State of Queensland, Australia, and by execution and delivery of this agreement, that party accepts, for itself and in respect of its property and assets, generally and unconditionally the non-exclusive jurisdiction of the Courts of the State of Queensland, Australia.
18.3 The United Nations Convention for the International Sale of Goods shall not apply to this agreement or any purchase of Goods hereunder.
18.2 Any legal action or proceedings with respect this agreement against any party or any of its property and assets may be brought in the Courts of the State of Queensland, Australia, and by execution and delivery of this agreement, that party accepts, for itself and in respect of its property and assets, generally and unconditionally the non-exclusive jurisdiction of the Courts of the State of Queensland, Australia.
18.3 The United Nations Convention for the International Sale of Goods shall not apply to this agreement or any purchase of Goods hereunder.
19 Severability
19.1 If any of these terms is at any time held by any jurisdiction to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to bring it within the laws of that jurisdiction and to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other of these terms.
20 No Waiver
20.1 No waiver by Flocca in exercising any right, power or provision hereunder shall operate as a waiver of any other right or of that same right at a future time; nor shall any delay in exercise of any power or right be interpreted as a waiver.
20.2 Buyer will not transfer or assign this Contract or any rights or interests hereunder without Flocca’s prior written consent. Failure of either party to insist upon strict performance of any provision of this Contract, or to exercise any right or privilege contained herein, or the waiver of any breach of the terms or conditions of this Contract will not be construed as thereafter waiving any such terms, conditions, rights, or privileges, and the same will continue and remain in force and effect as if no waiver had occurred.
20.2 Buyer will not transfer or assign this Contract or any rights or interests hereunder without Flocca’s prior written consent. Failure of either party to insist upon strict performance of any provision of this Contract, or to exercise any right or privilege contained herein, or the waiver of any breach of the terms or conditions of this Contract will not be construed as thereafter waiving any such terms, conditions, rights, or privileges, and the same will continue and remain in force and effect as if no waiver had occurred.
21 Dispute Resolution
21.1 In the event of a dispute arising out of or in connection with these terms or any contract between you and Flocca, then you agree to attempt to settle the dispute by engaging in good faith with Flocca in a process of mediation before commencing any arbitration or litigation.
22 Force majeure
22.1 Flocca is excused from delays in delivery and performance of other contractual obligations under this Contract caused by acts or omissions that are beyond the control of Flocca, including but not limited to Government embargoes, blockages, seizures or freeze of assets, delays or refusals to grant an export or import license or the suspension or revocation thereof, or any other acts of any Government; fires, floods, severe weather conditions, or any other acts of God; quarantines; labor strikes or lockouts; riots; strife; insurrections; civil disobedience or acts of criminals or terrorists; war; material shortages or delays in deliveries to Flocca by third parties. In the event of the existence of any force majeure circumstances, the period of time for delivery, payment terms and payments under any letters of credit will be extended for a period of time equal to the period of delay. If the force majeure circumstances extend for six months, Flocca may, at its option, terminate this Contract without penalty and without being deemed in default or in breach thereof.
23 Site Access / Preparation / Worker Safety / Environmental
23.1 In connection with services provided by Flocca, Buyer agrees to permit prompt access to equipment. Buyer assumes full responsibility to back-up or otherwise protect its data against loss, damage or destruction before services are performed. Buyer is the operator and in full control of its premises, including those parts of the premises where Flocca employees or contractors are performing service, repair and maintenance activities.
23.2 In the event that a Buyer requires Flocca employees or contractors to attend safety or compliance training programs provided by Buyer, Buyer will pay Flocca the standard hourly rate and expense reimbursement for such training attended. The attendance at or completion of such training does not create or expand any warranty or obligation of Flocca and does not serve to alter, amend, limit or supersede any part of this Contract.
23.3 Unless otherwise agreed in writing it shall be the responsibility of the Buyer to obtain and provide any licences, access, approvals or permits as necessary for performance of any contract arising between the Vendor and the Buyer These Terms constitute the entire agreement between the parties and supersede any prior agreements or representations, whether oral or written. No change to or modification of these Terms shall be binding upon Flocca unless in a written instrument specifically referencing that it is amending these Terms and signed by an authorized representative of Flocca. Flocca rejects any additional or inconsistent Terms offered by Buyer at any time, whether or not such terms or conditions materially alter the Terms herein and irrespective of Flocca’s acceptance of Buyer’s order for the described goods and services.
23.2 In the event that a Buyer requires Flocca employees or contractors to attend safety or compliance training programs provided by Buyer, Buyer will pay Flocca the standard hourly rate and expense reimbursement for such training attended. The attendance at or completion of such training does not create or expand any warranty or obligation of Flocca and does not serve to alter, amend, limit or supersede any part of this Contract.
23.3 Unless otherwise agreed in writing it shall be the responsibility of the Buyer to obtain and provide any licences, access, approvals or permits as necessary for performance of any contract arising between the Vendor and the Buyer These Terms constitute the entire agreement between the parties and supersede any prior agreements or representations, whether oral or written. No change to or modification of these Terms shall be binding upon Flocca unless in a written instrument specifically referencing that it is amending these Terms and signed by an authorized representative of Flocca. Flocca rejects any additional or inconsistent Terms offered by Buyer at any time, whether or not such terms or conditions materially alter the Terms herein and irrespective of Flocca’s acceptance of Buyer’s order for the described goods and services.
ADDITIONAL CLAUSES IF THE VENDOR IS RESPONSIBLE FOR INSTALLATION
E1 Extra Costs
Any agreement by the Vendor to undertake Contract Works is based on the assumption that all civil work or other preparatory work for which the Buyer is responsible has been completed and that the installation can be carried out with continuity during normal working hours. Should the Vendor incur extra costs or other expenses including reasonable overheads because of interruptions, delays, overtime, unusual hours, mistakes, or work for which the Vendor is not responsible under this Agreement, such extra cost, expense or reasonable overhead will be added to the price to be paid to the Vendor by the Buyer, it being agreed, however, that overtime or unusual hours shall not be worked except with the prior arrangement of Buyer’s representative.
E2 Access to Site
The Buyer will provide timely and suitable access to Site for such periods as is reasonably required to perform the Contract Works.
