element14 Pty Ltd
Standard Terms & Conditions of Sale
(Not applicable to export transactions)
Expected currency date of Catalogue: from February 2012 to February 2013.
Issue date of Conditions: February 2012.
The Company is predominantly a business to business supplier. This Catalogue and any specialogues and other product brochures produced by the Company are intended for use by business customers and not consumers (except for students purchasing for use in their studies or research at an educational institution at which the Supplies were promoted). By ordering, the Customer confirms that he, she or it wishes to obtain the Supplies:
(a) for the purposes of his, her or its business and not as a consumer, and wishes to obtain the Supplies:
(i) for the purpose of re-supply; or
(ii) for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture, or in the course of repairing or treating other goods or fixtures on land, or
(b) for use in the course of studies or research at an educational institution at which the Supplies were promoted.
"Catalogue" means the catalogue (in whatever form, whether paper or electronic) in which these Conditions are set out.
"Company" means element14 Pty Ltd ABN 95 003 211 345 of 72 Ferndell Street, Chester Hill, NSW 2162, or its permitted assigns.
"Conditions" means these terms and conditions.
"Contract" means any contract between the Company and the Customer for the sale and purchase of Supplies.
"Customer" means the person(s) or company whose order for the Supplies is accepted by the Company.
"Goods" means any goods supplied or to be supplied by the Company to the Customer, and includes their packaging and any replacement goods supplied under these Conditions.
"GST" means goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
"PPSA" means the Personal Property Securities Act 2009 (Cth).
"Purchase Money Security Interest" has the meaning given to that term in the PPSA.
"Register" has the meaning given to that term in the PPSA.
"Security Agreement" has the meaning given to that term in the PPSA.
"Security Interest" has the meaning given to that term in the PPSA.
"Services" means any services supplied or to be supplied by the Company to the Customer, and includes any technical advice, repair or maintenance services provided by the Company or its technical representatives in connection with Goods.
"Supplies" means any Goods or Services.
"Verification Statement" has the meaning given to that term in the PPSA.
"in writing" includes electronic communications.
Reference in these Conditions to any legislation or regulation includes any re-enactment, amendment or substitution of such legislation or regulation.
All orders are accepted by the Company subject to and in accordance with these Conditions.
These Conditions override and exclude any terms or conditions in or referred to in any negotiations or course of dealing between the Company and the Customer or set out in the Customer’s standard terms and conditions to the fullest extent permitted by law. If there is any conflict between
- the other provisions of this Catalogue and these Conditions; or
- the provisions of the order for the Supplies and these Conditions.
these Conditions will prevail unless the Company agrees otherwise in writing. Together with any terms accepted in writing by the Company in connection with an order, these Conditions constitute the entire agreement between the Company and the Customer in relation to the Supplies ordered. No variation to these Conditions is permitted unless expressly authorised in writing by a director of the Company.
3. PRICES AND GST
Prices stated in the Catalogue for Supplies are in Australian dollars, exclusive of GST or other duties or taxes and any applicable transport and handling charges, which will be added at the time of despatch. The Company has used all reasonable endeavours to ensure that prices for the Supplies are accurately set out in the Catalogue but these prices are not binding and the Company reserves the right to change its prices without notice at any time. Prices charged will be those prevailing when an order is accepted. Where Supplies are to be made in instalments (‘Scheduled Delivery’) the price payable for them will be that applicable at the time of despatch of the first batch of Supplies but, where Scheduled Delivery may continue for a period of 90 days or more, the Company reserves the right to charge the Customer further amounts if the price of the Supplies increases before the end of that period.
The Company will issue a tax invoice to the Customer in relation to any supply that is subject to GST.
The amount of GST payable will be calculated by multiplying the sum of the price for the supplies plus any additional freight or other charges by the rate of GST applicable at the time of the supply. The words "supply" and "tax invoice" in this Condition 3 have the same meaning as that given to them in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Where credit terms have been approved, payment is due not later than 30 days from the date of statement, without any deductions, withholding or set off. Time for payment is of the essence. If the Customer fails to make payment by the due date then, without prejudice to any other right or remedy, the Company shall be entitled to:
i. cancel the order or suspend any further deliveries or performance;
ii. appropriate any payment made by the Customer to such of the Supplies (or the Supplies made under any other contract) as the Company may think fit; and
iii. charge interest (both before and after any judgment) on the amount unpaid at the rate of 2% per annum above the Reserve Bank of Australia’s published official interest rate.
The Company reserves the right to charge for copy invoices or credit notes where the original has been lost or misplaced by the Customer. If legal action is taken to recover monies due to the Company, then the Company reserves the right to charge the Customer an amount to cover all and any costs (including legal costs) incurred by the Company.
5. NEW ACCOUNTS
A Customer wishing to open a credit account must furnish such information as may be requested by the Company and the Company may make a search with a credit reference agency. The Company reserves the right in its absolute discretion to grant, refuse, suspend or discontinue any credit facilities or reduce or suspend any credit limit at any time.
Commercial Credit Account is only available to bodies corporate and not to individuals. Non-bodies corporate may purchase goods by cash, NETS, Amex, Visa or Mastercard from the Company's Trade Counter.
The Customer acknowledges and agrees that any Contract for supply on credit terms constitutes a Security Agreement for the purposes of the PPSA and creates a Security Interest in:
i. all Goods supplied by the Company to the Customer under such Contracts; and
ii. all proceeds (if any) received by the Customer in relation to the Goods, and may be registered on the Register as a Purchase Money Security Interest.
The Customer undertakes to promptly execute any further documents and to provide any further information and to do such further acts and things as may be required by the Company to:
iii. register a financing statement or financing change statement in relation to a Security Interest on the Register;
iv. register any other document required to be registered by the PPSA; or
v. correct a defect in a statement referred to in clauses iii. or iv. above.Orders for Goods are usually accepted by the Company by despatching the Goods provided, however, that despatch will not be acceptance where the price for the Supplies has been incorrectly quoted or referenced by the Customer in its order.
The Customer acknowledges that it has received value as at the date of first delivery of the Goods and has not agreed to postpone the time for attachment of the Security Interest granted to the Company under any Contract.
Where the PPSA applies to action taken by the Company in relation to the Goods, the Customer:
i. agrees that sections 120, 125,142 and 143 of the PPSA will not apply; and
ii. waives its right to receive any notices under section 95, 118(1)(b), 121(4), 123(2), 130, 132(3)(d), 1332(4) and 135 of the PPSA and any right to receive a Verification Statement under the PPSA.
The Company reserves the right to decline to trade with any company or person, or to accept orders for Supplies in part.
To avoid duplication, written confirmation of telephone orders must be clearly marked ‘Confirmation only’. The Company will not accept liability for orders not so marked and duplicate orders will be charged accordingly.
Once accepted, no order may be cancelled or reduced without the prior written agreement of a director of the Company. Without limiting the generality of this, orders for Goods which are not in catalogue or non stock items may not be cancelled.
Orders for Goods are usually accepted by the Company by despatching the Goods provided, however, that despatch will not be acceptance where the price for the Supplies has been incorrectly quoted or referenced by the Customer in its order.
Orders for certain Goods, in particular Goods which are not in catalogue or are non-stock items, may be subject to a minimum order quantity or value which the Company will use its reasonable endeavours to notify to the Customer prior to accepting its order.
The Company will use all reasonable endeavours to despatch Goods ordered before 6pm Sydney time Monday to Friday (excluding public holidays) on the same day and all Goods ordered after such times the next working day, provided that those Goods are in stock.
The Company charges a standard delivery and handling cost.
The Company reserves the right to charge extra for delivery of certain items, for example those that are very large, heavy or hazardous, and the Company reserves the right to charge a standard delivery fee of $12.95 + GST for all orders under $45. For all orders over $45 where the weight is less than 20kg, delivery is free. Any such charge will be notified to the Customer at the time of establishment of its account or placing of the order to which such charge applies. Dimensional weight calculations may apply. For safety reasons, hazardous goods cannot be shipped by air. To discuss shipping options please contact us. The spend amount does not include GST or any other discounts.
The Company will use reasonable endeavours to meet delivery and/or performance estimates but, except as set out in Condition 9 below, in no circumstances shall it be liable to compensate the Customer for non-delivery, non-performance or late delivery or performance, even where it arises as a result of the negligence of the Company or its carriers. Time for delivery and/or performance shall not be of the essence. Delivery will be made to the address specified by the Customer. The Company may use any method of delivery available to it.
When selecting a delivery method that includes ‘No Signature Required’, the Customer is authorising the Goods to be left at their unattended premises. The Company does not accept any responsibility for loss or damage which results from choosing this delivery method.
The Company reserves the right to deliver or perform by instalments. Failure to meet a scheduled delivery or performance date shall not prevent or restrict the Company from making further deliveries or rendering subsequent performance under the relevant Contract by instalment. Scheduled Deliveries can only be accepted for a maximum period of 6 months from the date of order.
9. INSPECTION, DEFECTS AND NON DELIVERY
The Customer must inspect the Supplies as soon as is reasonably practicable after delivery or, in the case of Services, performance. Except as otherwise set out in Conditions 15 or 16 below, the Company shall not be liable under these Conditions for a defect in the Supplies, incomplete or failed delivery, shortage of weight or quantity of Supplies unless written notice is given to the Company within 10 days of the date of inspection.
The Company does not write software comprised in the Goods and it is the Customer’s responsibility to check for the presence of computer viruses before the Goods are used.
The quantity of any consignment of Goods, as recorded by the Company upon despatch from the Company’s place of business, shall be conclusive evidence of the quantity received by the Customer on delivery, unless the Customer can provide conclusive evidence to the contrary. The Company will not be liable for any non-delivery of Goods or non-performance of Services unless written notice is given to the Company within 10 days of the date when Goods should have been delivered or the Services performed in the ordinary course of events.
Any liability of the Company for non-delivery or non-performance or for Goods notified as defective on delivery or Services notified as defective following performance in accordance with this Condition 9 will be limited to replacing the Goods or re-performing the Services within a reasonable time or to refunding the price then paid in respect of such Supplies.
Prior to returning any Goods to the Company for any reason, the Customer must contact the Company to obtain a returns authorisation number (‘RNA’). All Goods are returned at the Customer’s risk and expense and should be undamaged by the Customer and in their original packaging. The Customer is responsible for returning Goods to the Company and for providing proof of delivery of such return.
The Company operates a 14 day return policy. To be accepted for return on this basis, Goods must be returned in their original condition for receipt by the Company within 14 days of delivery. The Customer must return the Goods to "The Returns Department, element14 Distribution Centre, 72 Ferndell Street, Chester Hill NSW 2162" clearly quoting the Customer’s account number, order number and RNA.
Any Goods returned after 14 days as ‘unwanted’ or ‘incorrectly ordered’ may be accepted at the discretion of the Company but will be subject to a restocking fee of 20% of the invoice value of the Goods (subject to a minimum charge of $10). Certain Goods (books, batteries, computer products and software) along with any Goods classified as not in the catalogue or non-stock may not be returned under this Condition 10. Additionally, Goods classified as static sensitive devices will only be accepted for return where the Customer can prove to the Company that the goods have been handled properly.
The Company expressly reserves the right (without limiting its discretion under this Condition 10) to refuse the cancellation of any order for, or return for credit of, Goods supplied by the Company which are not in the Catalogue, are notified by the Company to be not-in-catalogue Goods, are sourced from Newark, or consist of software or contain any hazardous substances.
All specifications, drawings, illustrations, descriptions and particulars of weights, dimensions, capacity or other details including, without limitation, any statements regarding compliance with legislation or regulation (together “Descriptions”) wherever they appear (including without limitation in this Catalogue, on despatch notes, invoices or packaging) are intended to give a general idea of the Supplies, but will not form part of the Contract. If the Description of any Goods differs from the manufacturer’s description, the latter shall be deemed to be correct. The Company shall take all reasonable steps to ensure the accuracy of Descriptions but relies on such information, if any, as may have been provided to it by its suppliers and to the fullest extent possible by law excludes all liability in contract or tort or under statute or otherwise for any error in or omission from such Descriptions whether caused by the Company’s negligence or otherwise. The Company may make changes to the Supplies as part of a continuous programme of improvement or to comply with legislation.
12. RISK AND OWNERSHIP
The risk of damage to or loss of Goods will pass to the Customer when the Goods are unloaded from the Company’s carriers at the Customer’s premises. Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due from the Customer to the Company for those Goods.
Until ownership passes to the Customer, the Customer must hold the Goods on a fiduciary basis as the Company’s bailee, insure the Goods against all usual risks to full replacement value, not pledge or allow any lien, charge or other interest to arise over Goods, and store each delivery of Goods separately, clearly identified as the Company’s property and in a manner to enable them to be identified and cross referenced to particular invoices where reasonably possible. The Customer may use or sell Goods in the ordinary course of business, provided that the Customer will be agent for the Company in any sale if Goods are sold. However any such agency will only extend to the obligation to account for proceeds. The Customer will not be bound by any contract between the Customer and the Customer’s purchaser. The Customer must account to the Company for that part of the proceeds of any such sale which equates to the price of the Goods and shall hold that amount in a separate bank account on trust for the Company. The Customer will hold on trust for the Company in a separate bank account any insurance monies received by the Customer for Goods owned by the Company.
The Company’s rights as an unpaid seller will not be affected by the Company retaining title to Goods under this Condition 12.
If any payment for Supplies is not received in full by the due date, or the Customer becomes bankrupt, passes a resolution for winding up or a court shall make an order to that effect, or a receiver or administrator is appointed over any assets or the undertaking of the Customer or an execution or distress is levied against the Customer, the Customer shall not sell, use or part with possession of the Goods, and the Company shall be entitled, without previous notice and without prejudice to the Company’s other remedies, to retake possession of the Goods and for that purpose to enter upon any premises occupied or owned by the Customer. The Customer waives the right receive any PPSA notice in connection with the Company taking possession of the Goods.
If the Goods are mixed, processed or used so that they lose their identity or are irrevocably incorporated in, mixed with or applied to other goods to make another item, then ownership of the Goods will pass to the Customer, however a portion of proceeds of sale of any such item equivalent to the cost for the unpaid Goods remains in trust for the Company until payment for the Goods is made in full.
This Catalogue remains at all times the sole and exclusive property of the Company.
13. QUALITY ASSURANCE
All Goods detailed in the Catalogue have been processed in strict accordance with standard quality procedures approved to AS/NZS9001: 2000, unless indicated otherwise on the despatch documentation.
Further details can be obtained from the Company’s telephone sales office at the time of ordering.
Selected items are available with full lot traceability.
14. PERFORMANCE AND FITNESS FOR PURPOSE
Subject to Condition 16:
(i) unless any performance figures, tolerances or characteristics have been specifically and expressly warranted by a director of the Company in writing, the Company accepts no liability for any failure of the Supplies to comply with such criteria, whether attributable to the Company’s negligence or otherwise; and
(ii) the responsibility for ensuring that Supplies are sufficient and suitable for a particular purpose is the Customer’s, unless specifically stated in writing by a director of the Company. Any advice or recommendation given by an employee of the Company which is not confirmed in writing by a director of the Company is acted on entirely at the Customer’s risk and the Company shall not be liable for any such advice or recommendation which is not so confirmed. Except as set out in Condition 16, the liability of the Company to the Customer, should any warranty, statement, advice or recommendation confirmed in accordance with this Condition 14 prove to be incorrect, inaccurate or misleading, will be limited to the refund of the price paid for the Supplies or, at the Company's option, the supply of replacement Supplies which are sufficient and suitable.
15. WARRANTY / GUARANTEE
This statement applies only if you are a ‘consumer’ for the purpose of the Australian Consumer Law.
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. The benefits under this warranty are in addition to other rights and remedies you may have under law in relation to our goods.
The Company will endeavour to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer of Goods.
In addition, the Company will, free of charge, repair or, at the Company’s option, replace Goods which are proved to the reasonable satisfaction of the Company to be damaged or defective due to faulty materials, workmanship or design for a period of 12 months after despatch of the Goods. The Customer must notify the Company in writing of the defect within 10 days of the date of inspection in accordance with Condition 9. Software programs are supplied on the strict understanding that the Company does not warrant their function to be free from defects or error. This obligation will not apply:
- if the defect arises because the Customer has altered or repaired such Goods without the written consent of the Company;
- if the defect arises because the Customer did not follow the manufacturers’ instructions for storage, usage, installation, use or maintenance of the Goods;
- if the Customer has failed to notify the Company of any defect in accordance with Condition 9 where the defect should have been reasonably apparent on reasonable inspection; or
- if the Customer fails to notify the Company of the defect within 12 months (or such other period as the Company shall specify at the time of acceptance of the order for the Supplies) of the date of despatch of the Goods.
Any replacement Supplies made or Goods repaired under this Condition 15 will be guaranteed on these terms for any unexpired portion of the period of guarantee given on the original Supplies. Any Goods which have been replaced will belong to the Company.
The Customer grants to the Company and its employees, agents and representatives a right to enter onto its premises to effect any repair or replacement under this Condition 15. The Customer shall ensure that the Company’s employees, agents and representatives are provided with a safe and secure working environment while at its premises and the Customer shall be responsible for isolating any computers or processors requiring repair or replacement from its network and for making backup copies of any information on such computers or processors before the Company’s arrival on site.
FURTHER INFORMATION AND MAKING A CLAIM
Please contact your Company customer service representative (details below) with any queries regarding this warranty or if you wish to make a warranty claim:
Phone: 1300 361 005
The Customer will be responsible for the return of any Goods that are the subject of a warranty claim in accordance with Condition 10.
16. EXCLUSION OF LIABILITY
This Condition 16 sets out:
- the full extent of the Company’s obligations and liability to the Customer with respect to the Supplies under any Contract; and
- all other terms, conditions, warranties and representations that might otherwise be implied by statute or otherwise, are hereby expressly excluded, save for those that cannot be excluded, restricted or modified by law.
To the fullest extent permitted by law and subject only to any express exceptions contained in these Conditions, the Company will be under no liability to the Customer whatsoever (whether in contract, tort, (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct or indirect or consequential loss (all of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of use, loss or cost of recovery of data, computer downtime, depletion of goodwill, business interruption, increased purchasing or manufacturing costs, loss of opportunity, loss of contracts and like loss) howsoever caused or arising out of or in connection with:
- Any of the Supplies, or the manufacture, sale, performance or supply or failure or delay in performance or supply of the Supplies by the Company or on part of the Company’s employees, agents or sub-contractors;
- Any breach by the Company of any of the express or implied terms of the Contract;
- Any use made or resale or on-supply of any of the Supplies or any product incorporating any of the Goods or developed using the Supplies;
- Any acts or omissions of the Company at the Customer’s premises;
- Any statement made or not made or advice given or not given by or on behalf of the Company, including as to compliance with legislation or regulation;
- Or otherwise under the Contract.
The Company does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified by law including liability under the Competition and Consumer Act 2010 (Cth). However, where such statutory provisions apply, or where the Customer is entitled to claim under an express provision of these Conditions (including Conditions 9, 11, 14 and 15), then to the extent permitted by law the Company’s total liability shall be limited at its option to:
- in the case of a supply of Goods, either the replacement of the Goods; or supply of equivalent Goods; or the payment of the cost of replacing the Goods; or the payment of the cost of acquiring equivalent Goods; or the repair of the Goods; or the payment of the cost of having the Goods repaired; or
- in the case of a supply of Services, either the supply of the Services again; or the payment of the cost of having the Services supplied again.
Each of the Company’s employees, agents and sub-contractors may rely on and enforce the exclusions and restrictions of liability in these Conditions (including Conditions 9, 11, 14, 15, 16 and 17) in that person’s own name and for that person’s own benefit.
17. PRODUCT WATCH AND element14 PRODUCTFIND
The Customer acknowledges that the Company’s ProductWatch and element14 ProductFind services are, as at the date of issue of these Conditions, provided free of charge. Without limiting the generality of Condition 16:
i. In relation to ProductWatch
The Company will make all reasonable efforts to inform the Customer of the pending obsolescence or replacement of any Goods but accepts no liability for failing to do so in a timely manner or at all, nor for failing to provide details of possible or appropriate substitutes or for failing to provide the service in the manner or at the times anticipated. It is the responsibility of the Customer to determine whether the Goods suggested are suitable for the Customer’s intended use and no representations or warranties are provided in this regard.
ii. In relation to element14 ProductFind
The Company will make all reasonable efforts to assist the Customer in identifying and/or procuring suitable Goods but accepts no liability for failing to do so in a timely manner or at all nor for failing to source possible or appropriate Goods or for failing to provide the service in the manner or at the times anticipated. It is the responsibility of the Customer to determine whether the Goods are suitable for the Customer’s intended use and no representations or warranties are provided in this regard.
18. INTELLECTUAL PROPERTY RIGHTS
The Supplies in this Catalogue may be subject to the intellectual and industrial property rights (including patents, knowhow, trade marks, copyright, design rights, circuit layout rights, and/or other rights) of third parties. No right or licence is granted to the Customer, except the right to use the Supplies or re-sell the Goods in the Customer’s ordinary course of business. The Company shall have no liability whatsoever in the event of any claim of infringement of any such rights howsoever arising. In particular, without limiting the above, title in any software program forming all or any part of the Goods is reserved to the Company and/or its suppliers. The Customer is responsible for informing itself of the terms of its licence or use and paying any royalty payable.
The Company owns full copyright in respect of this Catalogue and its reproduction in whole or part is prohibited without the Company’s prior written consent.
19. USE OF PERSONAL INFORMATION
"Personal Information" means, any information or opinion in any form, whether true or not, about the Customer and any representative who places an order on behalf of the Customer or who is named in that order, who is a living individual and whose identity is apparent or can be reasonably ascertained from the information or opinion.
The Company may collect and disclose Personal Information received from the Customer or from third parties for all purposes contemplated in these Conditions or arising in the context of the relationship between the Company and the Customer including:
i. Deciding whether to enter into any contract or arrangement with that Customer. This may include assessment of the Customer’s application for a commercial credit account, conducting commercial and consumer credit reference searches against a Customer and any representative who places an order on behalf of the Customer or who is named in that order and the disclosure of information to a credit reporting agency as to how that Customer conducts its account;
ii. Order fulfilment, administration, customer services, profiling the Customer’s purchasing preferences and to help to review, develop and improve the Company’s business and the goods and services it offers;
iii. Direct marketing of the Company’s products and services and/or of the products and services of other companies in the Premier Farnell plc group of companies or third parties which the Company believes may be of interest to the Customer or its representatives, whether by post, fax, telephone, email, SMS, MMS or otherwise;
iv. Crime prevention, detection of unlawful activities; or
v. When required by law.
The collection and disclosure of the Personal Information may involve:
i. The disclosure of that Personal Information to the Company’s service providers and agents;
ii. The disclosure of Personal Information to other companies in the Premier element14 plc group of companies whose products and services the Company believes may be of interest to that Customer or representative;
iii. The disclosure of Personal Information to third parties whose products and services the Company believes may be of interest to that Customer or representative;
iv. The transfer of Personal Information outside of Australia, including to countries whose laws may not provide adequate protection to Personal Information. The Company will only transfer Personal Information outside Australia to companies who have guaranteed to the Company at least the same level of protection as that Personal Information would have received in Australia.
The Company may hold Personal Information on a database to be used by the Company or any other company in the Premier Farnell plc group of companies for order fulfilment, administration, marketing, credit checking, security, customer services, profiling the Customer’s purchasing preferences and to help the Company to understand and develop its business, including new and innovative products and services.
By placing an order, the Customer and any representative who places an order on behalf of the Customer or who is named in that order is taken to consent to the collection and disclosure of Personal Information set out in this Condition 19. Where the Personal Information relates to an individual other than the Customer, the Customer agrees that he or she has the authority of that individual to consent on their behalf. If, at any time, the Customer or its representatives does not wish his or her Personal Information to be used for any or all of the purposes set out in this Condition 19, he or she should contact the Marketing Manager, element14, 72 Ferndell Street, Chester Hill NSW 2162 or notify any of our sales representatives when placing an order by phone. This may curtail the service which the Company can offer and the Company may need to vary the terms of the Contract accordingly.
For more information on the Company’s use of personal data please see the Company’s privacy statement on its website.
In the event that the Company sends promotional material to the Customer in relation to goods or services available from the Company, these Conditions shall apply to all Supplies purchased from such material.
21. COUNTRY OF ORIGIN
Unless otherwise confirmed by the Company in writing, nothing in this Catalogue is to be taken as representation of the source of origin, manufacturer or production of the Goods or any part of them.
22. TRADE COUNTER
Goods can only be supplied at the trade counter against official orders for credit, debit card or cash transactions. A purchase order is required when collecting Goods. Cash transactions will only be accepted at the trade counter.
These Conditions do not apply to the supply of Supplies by the Company to Customers outside Australia. Separate Conditions of Supply apply to export transactions and are available on request from the Company’s export department. The Customer is responsible at its own expense for obtaining any licence and complying with any export regulations in force within Australia and in the country for which the Goods are destined. Certain Goods imported from the United States of America by the Company are subject to specific restrictions. With respect to goods manufactured in or originating from the United States, the Customer agrees to comply with all applicable export laws, restrictions and regulations of the United States or foreign agencies or authorities and shall not import, export or transfer for the purpose of re-export, any product to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as mentioned in any such U.S. or foreign law or regulation. The Customer represents and warrants that it is not on the United States’ Denied Persons and Entity List, Specially Designated Nationals List or Debarred Persons List and is not otherwise prohibited by law from purchasing the Supplies. The Company reserves the right not to supply certain persons or countries and to require from the Customer full details of the end use and final destination of the Goods.
24. NEWARK DIRECT SHIP GOODS
In relation to any Contract for the supply of Goods which are notified by the Company at the time of order to be Newark direct ship Goods or subject to the Newark direct ship terms (“Newark Goods”), the provisions of this Condition 24 shall apply in addition to all other terms and conditions set out in these Conditions. If there is any conflict or inconsistency between the terms set out above and this Condition 24, this Condition 24 shall prevail. This Condition 24 does not apply to any Contract which does not include Newark Goods.
All orders containing Newark Goods are subject to an additional delivery charge in the amount published by the Company at the time of the order (currently A$10 but subject to change from time to time) (“the Direct Ship Fee”). The Direct Ship Fee is payable only once per Contract regardless of the number of Newark Goods ordered under that Contract and only once per Contract in the case of a Contract for Scheduled Delivery. The Direct Ship Fee will be charged on shipment of the first Newark Goods to be delivered under any Contract.
Newark Goods are normally delivered 3 - 5 working days after receipt of an order received prior to 6pm on a working day. Newark Goods ordered after 6 pm on a working day or on a non-working day are normally delivered 3 - 5 working days after the next working day following receipt of the order.
This is regardless of the delivery method chosen during the order process (which shall continue to apply to all other Goods ordered). The special same or next day delivery service does not apply to Newark Goods. As set out above, all delivery times are estimates only.
ii. Cancellation and returns
Save in accordance with Condition 10 above, all orders for Newark Goods, whether single drop or scheduled, are irrevocable and cannot be cancelled and Newark Goods may not be returned except in accordance with Conditions 15 or 16 (if applicable) or with the prior written consent of a director of the Company.
iii. Use of Personal Information in relation to Newark Goods
In order to fulfil any Contract for Newark Goods the Company will transfer the Personal Information of the person to whom the Goods are to be delivered to the USA. In placing any order for Newark Goods, the Customer accepts that this transfer will take place and consents to its taking place, even though the USA does not provide the same level of protection to Personal Information as Australia. The Company will endeavour to ensure that the Personal Information will receive an adequate level of protection while in the hands of its representatives in the USA. Where the Personal Information relate to another individual to whom the Goods are to be delivered, the Customer agrees that he or she has the authority of that individual to consent on their behalf. The Customer can withhold or withdraw his or her consent by contacting the Marketing Manager, element14, 72 Ferndell Street, Chester Hill NSW 2162 but this will severely curtail the service which the Company can offer and may require the Company to vary the terms of the Contract.
25. AGE REQUIREMENTS FOR CERTAIN GOODS
Where the law requires a minimum age for the purchase of certain Goods, the Customer confirms that he or she is over the required age and that delivery of the Goods will be accepted by a person over the relevant age limit.
26. PROHIBITED APPLICATIONS
The Goods are not designed, authorised or warranted to be suitable for:
i. implantation in the body or for use in life support equipment, other medical equipment or in any application or system for any other purpose where the failure or malfunction of the Goods could reasonably be expected to result in personal injury, death, severe property or environmental damage; or
ii. in the case of Goods manufactured by and/or supplied to the Company by NXP Semiconductors, use in military, air craft or space applications.
Use or inclusion of the Company’s Goods in any such equipment, system or applications is strictly prohibited and any such use will be at the Customer’s own risk. The Customer will indemnify the Company and its suppliers against any and all liability and expense (including costs) resulting from any such inclusion or use, including, but not limited to legal costs and indirect or consequential loss (all of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of use, loss or cost of recovery of data, computer downtime, depletion of goodwill, business interruption, increased purchasing or manufacturing costs, loss of opportunity, loss of contracts and like loss).
27. FORCE MAJEURE
The Company shall not be liable to the Customer in any manner or be deemed to be in breach of these Conditions because of any delay in performing or any failure to perform any of the Company’s obligations under these Contract if the delay or failure was due to any cause beyond the Company’s reasonable control (which shall include, but not be limited to government actions, war, fire, explosion, flood, import or export regulations or embargoes, labour disputes or inability to obtain or a delay in obtaining supplies of Goods or labour). The Company may, at its option, delay the performance of, or cancel the whole or any part of a Contract.
28. RECORDING OF TELEPHONE CALLS
The Company reserves the right to monitor, intercept or record telephone calls and may monitor or intercept all email or other electronic communications made to its premises for training, security and quality purposes.
29. LEGAL CONSTRUCTION
All Contracts shall be governed by and interpreted in accordance with New South Wales law and the Customer submits to the jurisdiction of the New South Wales Courts and Courts able to hear appeals from those Courts, but the Company may enforce such Contract in any court of competent jurisdiction.
Any provision of these Conditions of Supply which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the other provisions of these Conditions and the remainder of such provision shall not be affected. Failure by the Company to enforce or partially enforce any provision of these Conditions will not be constrained as a waiver of any rights under these Conditions.
The Company shall be entitled, without the consent of or notice to the Customer, to assign the benefit, subject to the burden, of these Conditions and/or any Contract to a related body corporate (as defined in section 50 of the Corporations Act 2001 (Cth)) at any time.
These conditions supersede all previous terms and conditions which have previously governed a contract for the sale of Supplies from the Company to the Customer.
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