Product Sales Terms and Conditions
TERMS AND CONDITIONS
CONGRESS RENTAL AUSTRALIA TERMS AND CONDITIONS OF SALE
Congress Rental (Danebury Pty Limited) (ABN 20 003 840 800) of Unit 8/46-48 Buffalo Road, Gladesville, NSW (Congress)
& THE CLIENT REFERRED TO IN THE SALES PROPOSAL (Purchaser)
1. Application of these Terms and Conditions
a) These terms and conditions of sale issued 1 March 2022 replace any previous terms and conditions of sale published, issued or used by Congress.
b) All tenders and quotations issued by, all orders placed with, and all arrangements entered into by Congress for the supply, provision and/or delivery of goods and/or services are subject to these Terms and Conditions unless specified in writing between Congress and other party being a person, firm or company who or which is seeking to purchase from Congress or to whom or to which Congress's quotation is addressed (“Purchaser”).
c) An agreement between Purchaser and Congress for supply of and payment for goods and/or services (“Agreement”) will be upon these Terms and Conditions to the exclusion of all other terms and conditions and all prior oral or written representations.
d) Each order or acceptance of quotation for goods or services will be deemed to be an offer by the Purchaser for goods or services under these Terms and Conditions.
e) Agreement is made when an order is accepted by Congress. No order or offer shall be binding on Congress, and no Agreement formed until accepted by Congress in writing or in such manner as Congress in its sole discretion determines.
f) Unless previously withdrawn all quotations are valid for thirty (30) days from the date shown thereon, but are not to be construed as an obligation to sell and no Agreement or contractual relationship arises there from until the Purchaser's order has been accepted by Congress.
a) Prices quoted by Congress for the supply of goods and services:
are ex Congress warehouse Sydney. Unless specifically stated otherwise in writing all freight and delivery charges to the Purchaser's premises or other address specified by the Purchaser are for the account of the Purchaser;
exclude goods and services tax ("GST") except where otherwise stated and Congress will invoice Purchaser, and Purchaser must pay to Congress, the valid GST amount.
unless otherwise stated are in Australian dollars.
b) Any increases in the costs to Congress of the supply of goods and/or services as a result of:
changes in ruling award wages, charges by Congress’s suppliers, rates for freight, ordinary marine insurance, customs duties, landing, clearing and delivery charges and other taxes (including the rate of GST) and duties in respect of the goods;
the Purchaser requiring installation or other services work or any part thereof to be carried out outside normal working hours;
changes in requirements for conformance with any relevant legislation, court orders, regulations or bylaws;
delays caused by the failure of the Purchaser or contractors for whom the Purchaser is responsible to meet their respective obligations;
variation in exchange rates occurring between the date of Congress’s relevant quotation or tender or, where there is no such quotation or tender, from the date of Congress’s acceptance of the Purchaser’s order, as the case may be, and the date of supply of the relevant goods and/or services shall be borne by the Purchaser.
3. Variation of supply
Any request by the Purchaser for variation of an Agreement must be made to Congress in writing showing full and detailed information thereof, and Congress will advise promptly prices and terms and conditions for the variations concerned. No variation work will be commenced unless and until Congress receives a signed acceptance from the Purchaser of the terms and conditions and price of such variations. Congress reserves the right to refuse any such request for variations.
4. Delivery and Completion Period
a) Where goods are to be delivered to a nominated address Congress shall be deemed to have delivered the goods in accordance with the contract if it obtains a receipt or signed delivery docket for the goods from any person at that address.
b) If a nominated address is unattended or if delivery cannot otherwise be effected or the goods cannot be dispatched for any reason beyond Congress’s control, Congress may store the goods at the Purchaser’s risk and expense or take such other steps as Congress considers in its sole discretion to be appropriate.
c) Congress shall not be responsible for unloading goods at the point of delivery.
d) The risk of loss or damage to goods shall pass to the Purchaser at the time of delivery or when the Purchaser is notified that the goods are available for dispatch, as the case may be.
e) If any delivery or completion period is quoted by Congress it shall be deemed to be given on the following basis:
In the case of standard goods, the delivery or completion period stated in any quotation, tender or Agreement is subject to prior sale and/or confirmation of availability of by Congress's supplier;
In the case of goods which are in whole or in part subject to special design, manufacture or other non standard requirements, the delivery or completion period stated in any quotation, tender or Agreement is subject to the Purchaser having given Congress full final and adequate instructions and/or drawings and having fulfilled any other requirement specified by Congress to enable Congress to proceed uninterruptedly with the supply and/or manufacture of the goods.
Where Congress is required to install and/or commission the goods, the delivery or completion period stated in any quotation, tender or Agreement is subject to the Purchaser having fulfilled all requirements referred to in (ii) above and further is subject to site availability acceptable to Congress and completion of all activities necessary to enable Congress to install and/or commission the goods. In all cases, Congress will use its best endeavours to meet the time quoted for delivery of goods or completion of the installation of goods. However the time so quoted is an indication only and shall not be considered a binding commitment upon Congress. Congress shall not be liable for any loss or damage suffered by the Purchaser or otherwise arising out of the Congress's failure to meet the times quoted.
5. Consignment/Loan Stock
From time to time Congress may lease the Purchaser equipment for demonstration and evaluation purposes prior to the Purchaser issuing a firm order for same. In such case the corresponding rental Terms & Conditions apply.
a) Except as otherwise agreed in writing by Congress, payment for products or services shall be made in full, including freight, handling, packaging and insurance charges, before physical delivery of the goods or services.
b) Where delivery of goods or services to Purchaser is effected before full payment is received, Congress will invoice due amounts on shipment, and except as otherwise agreed in writing Purchaser must settle all amounts due within 30 days of date of invoice.
c) Notwithstanding any previously agreed credit account and payment arrangement, if Congress considers in its sole discretion that the financial condition of the Purchaser so warrants, it may decline to deliver or install goods or carry out the work unless the Purchaser provides a satisfactory security for the purchase price. Should the Purchaser fail to comply with this provision Congress may cease deliveries and/or leave the site with any re-establishment or other costs thereby incurred to be borne entirely by the Purchaser.
d) Should the Purchaser intend to arrange lease or hire purchase finance for the purchase of the goods or any part thereof, the Purchaser shall notify Congress of such intention and shall arrange for the lease or hire purchase documentation to be completed in sufficient time to permit settlement to be effected by the finance company on or before the date of delivery or installation.
e) If the Purchaser fails to pay amounts properly invoiced pursuant to these Terms, Congress shall be entitled (without prejudice to any other right hereunder or at law):
to charge interest on amounts due from the date when due until payment is received by Congress at the rate of 2.5% per cent per month.
where Congress still retains title, to retake possession of the goods and to give the Purchaser written notice that Congress intends to resell the goods after the expiry of seven (7) days from the date of the notice and if the Purchaser fails within that period to pay the purchase price with interest thereon then Congress shall be released from all obligations under the Agreement or other contract with Purchaser.
to commence legal proceedings without notice and the Purchaser shall pay all Congress’s legal and other costs incurred by Congress in seeking collection of the due amount.
7. Return of Equipment
a) No goods shall be returned to Congress without the prior authorisation of Congress.
b) Such authorisation will be at the sole discretion of Congress, and on the basis that Purchaser agrees that:
Where in the opinion of Congress goods are not returned in the condition in which they were supplied ("as supplied condition") any costs incurred by Congress in restoring goods to "as supplied condition" are for the account of the purchaser;
Congress may impose a special fee to be determined by Congress at its sole discretion to cover among other things, restocking charges and any loss Congress may incur in reselling such returned goods;
Congress may apply such other conditions as it may deem necessary.
8. Installation and Maintenance
a) Where Congress is not contracted to install the goods, Congress representatives may, if so required by the Purchaser, provide advice on the siting, installation (if appropriate) and operation of the goods. In providing this advice the representatives of Congress are expressing personal views derived from their experience in the industry but except as provided in clause 11, Congress shall have no liability whatsoever to the Purchaser in respect of any such advice given by any representative.
b) Where specified by Congress in relation to goods being supplied and or to services including installation service, the Purchaser shall at its own expense provide power of appropriate quality and at the required locations. Congress shall be under no liability whatsoever should any loss be incurred and/or damage suffered including consequential loss or damage as a result of the required power not being continually available.
c) If any repairs to or maintenance of the goods (other than those covered by Congress's normal warranty provisions) are to be carried out by Congress, and the Purchaser does not have a current Maintenance Agreement with Congress, then the cost of such work shall be charged to the Purchaser at Congress normal rates for such work.
9. Property and Risk in Goods
a) Property in each unit of the goods does not pass until such time as payment in full for the goods has been made and the Purchaser does not owe any other money to Congress on any account whatever and whether or not such other money has become due for payment. Until such time, the Purchaser will hold all the goods supplied as bailee for Congress and must keep the goods separate from other goods in the Purchaser’s possession and store them in a manner that identifies them as belonging to Congress.
b) The Purchaser may resell the goods, but only as fiduciary agent and trustee for Congress, by way of bona fide sale at full market value and in the ordinary course of its business
c) The Purchaser must not combine the goods with any other goods unless the goods can be easily extricated from such combination at any time.
d) The Purchaser grants a licence to Congress to:
dismantle any such combination and to enter any place where the goods or other goods are located in order to extricate the goods; and
enter any place where the goods may be located so Congress can retake possession of the goods.
e) If the Purchaser is unable to grant Congress any such licence the Purchaser, on being requested by Congress to do so, shall immediately dismantle such combination, extricate the goods and deliver them to Congress. Congress shall not be liable and is hereby indemnified by the Purchaser for any damage caused by or costs incurred in dismantling the goods.
f) Until the debts have been paid in full the Purchaser must hold such part of the money it receives from:
any sub-sale of the goods under the immediately preceding subclause; and
the proceeds of any sale of any products into which the goods have been mixed or converted by any process as equals the amount of the debts at the time the money is received (‘the Proceeds’) as bailee, fiduciary agent and trustee for Congress.
g) The Purchaser expressly acknowledges that it is bound by such fiduciary obligation and acknowledges that:
it must hold the Proceeds on trust for Congress.
it must place the whole of the Proceeds in an account separate from its own moneys (‘the Proceeds Account’).
it must maintain the Proceeds Account separate from its own moneys at all times.
it must maintain proper records for the Proceeds Account.
it must not assign or encumber the Proceeds or do any other act in derogation of Congress’s legal or beneficial interests.
it must account to Congress on demand for all moneys standing to the credit of such account;
Congress may appropriate payments to such goods and accounts as it thinks fit, notwithstanding any contrary appropriation by the Purchaser;
for the purposes of identification of different consignments of the goods purchased from Congress and receipt of Proceeds, the Purchaser agrees that the principle of “Last In, First Out” shall be applied to any items which cannot be distinguished.
receipt by the Purchaser of payment for the sale of any products into which the goods have been mixed or converted by any process shall be treated as evidence that it has received Proceeds; and
Congress trace the Proceeds in equity.
10. Licenses and Consents
If it is necessary for the lawful fulfillment of the Agreement or other contract:
a) For the Purchaser to hold or obtain import, export, currency or other licence, consent or authority, then the Purchaser shall be obliged to obtain the same.
b) For Congress to hold or obtain any such licence consent or authority then Congress shall apply for the same, but if the same is refused this Agreement of other contract shall forthwith come to an end, and neither Congress nor the Purchaser shall be under any liability in respect thereof. Where required by Congress, the Purchaser shall execute and deliver to Congress prior to delivery of the goods, an end user operating system licence or other software licence in a form required by Congress or the supplier of the goods to Congress.
a) Congress warrants that the Products delivered to the Purchaser shall at the time of delivery be free from defects in material and workmanship for use under conditions specified in respect of the respective Products.
b) This warranty is expressly accepted by the Purchaser in lieu of any and all other warranties or representations, expressed or implied, in fact or in law, including the implied warranties of merchantability and fitness for a particular purpose, and of all duties or liabilities of Congress to the Purchaser with respect to the Products sold pursuant to this Agreement, and no agreement or understanding varying or extending this warranty will be binding upon Congress unless made in writing. Under no circumstances shall Congress be liable for any loss of use, loss of business, loss of profits, or for special, indirect, incidental or consequential damages, howsoever caused, for breach of this warranty, even if notified of the possibility of same.
c) Any express warranty granted shall be extended directly to the Purchaser and not to the Purchaser’s customers/end users, agents or representatives, except for warranty of title, and is in lieu of all other warranties whether express or implied including any implied warranty of fitness for a particular purpose or merchantability.
d) In the event that the Products are proven to be defective on delivery to and/or upon collection by the Purchaser and which defect is proven due to Congress’s neglect, fault and/or omission, Congress agrees to either have the product repaired, replaced and/or refund the purchase price of the Product paid by the Purchaser. The Parties agree that Congress in all circumstances will decide on the mode of dealing with the defective Product.
e) Congress hereby agrees to provide a warranty period of 2 years for Products sold to the Purchaser from the date of delivery and/or upon collection (as may be applicable).
f) The Purchaser hereby agrees that in the event of refund, Congress’s liability to the Purchaser under the warranty shall not exceed the purchase price of the Products. The Purchaser further expressly agrees that Congress shall not be liable whatsoever howsoever to any customers of the Purchaser, which liability shall be solely assumed and borne by the Purchaser.
g) In the event of any and all third party claims, the Purchaser shall immediately notify Congress of any such claims and in any event no later than seven (7) calendar days after being aware of such a claim. Where the claim is in respect of defective Products or bad workmanship as of first delivery, Congress’s liability to the Purchaser shall be limited to only the purchase price of the Product paid by the Purchaser to Congress. All and any other claims, damages, losses, costs and/or expenses shall be assumed, borne by and to the Purchaser’s account.
h) Where the Purchaser neglects, fails, refuses and/or omits to notify Congress of any third party claims within seven (7) calendar days of being aware of such claim, Congress retains the absolute discretion to disclaim all liabilities arising from the third party claims.
12. Force Majeure
Congress shall not be liable for failure to perform its obligations if the failure arises from circumstances beyond its reasonable control, including but not limited to fire, explosion, strikes, lock-outs or any other industrial disputes, failure or refusal of its supplier to supply the goods, inclement weather, acts of God, Governmental action. In no such event shall the Purchaser be entitled to damages of any kind for late performance or failure to perform.
The Purchaser shall not assign its obligations hereunder without Congress's written consent.
14. Waiver and Variation
A provision of or a right created under these terms in favour of Congress may not be waived or varied except in writing signed by Congress. Congress may elect not to exercise its rights arising from a breach of any provision of these terms and such election, even if the breaches are continuous and multiple, shall not create any presumption against Congress.
15. Applicable Law
A quotation, and any contract or Agreement of which it shall form the basis, shall be interpreted and enforced in accordance with the laws for the time being in force in the State of New South Wales and the Purchaser agrees to submit to the jurisdiction of the Courts therein.
16. Credit Card & PayPal
Credit Card and PayPal payments incur a 3% surcharge.