GENERAL SALES AND DELIVERY CONDITIONS (GSC)


1. FOREWORD
1.1 The objective of the present General Sales Conditions, (hereinafter called the GSC), is to define the conditions under which EDRO will supply the CUSTOMER with the goods and/or services, defined in the order appended to the present document.
1.2 Together with any possible special clauses the GSC constitute the only clauses applicable to contracts of sales and/or services concluded between EDRO and its customers, notably concerning goods (catalogue products, special products, kits, spare parts, etc.) and/or services (studies, services of any type, etc.).
1.3 Therefore, unless otherwise specified by EDRO, all orders include ipso jure the customer’s unreserved acceptance of the present general sales conditions and the waiver of any clauses contained in their own general purchase conditions contrary to these present conditions.
2. ORDERS
2.1 Orders only become final when they are transmitted to EDRO in writing and when they are followed by EDRO’s written acceptance thereof / EDRO's acknowledgment of order.
2.2 EDRO reserves the right to request any guarantee that it may consider necessary and to suspend any order, even after acceptance, until it has obtained complete satisfaction concerning this request. EDRO reserves the right to stipulate that execution of an order be subject to payment of one or more down-payments, for which compliance with the terms of payment is an essential condition. Therefore, any non-compliance with any one of these terms is liable to lead to a delay in executing the order, even its cancellation, without the CUSTOMER being able to exercise any rights whatsoever enforcing completion of the order. Down-payments already made will remain the property of EDRO, which also reserves the right to use all legal resources available for obtaining total payment of all outstanding sums. The CUSTOMER will have no rights of appeal.
2.3 For orders placed by electronic mail, order information records supplied by EDRO will be considered valid by the parties in the event of any dispute on any of the details contained in the order, which the CUSTOMER accepts unreservedly.
2.4 Orders for standard products: Technical characteristics, dimensions, weight, etc, as defined in the catalogues, product datasheets, advertising documents, etc are for information purposes only and are not contractual. Will be considered an ipso jure condition of avoidance of contract, any observation made by EDRO of any technical or other incompatibility in the terms of the order, notably in the description provided for the order in question. In any such situation, EDRO will have the possibility of cancelling the order or modifying a part of its contents. The constructor may not be held liable in any way, should any such modifications not have been mentioned by EDRO in its order acceptance or should the customer maintain the terms and specifications of its order.
2.5 Orders for special products: Technical characteristics, such as dimensions, weight, restrictions to be observed, technical tolerances, etc must be formally stipulated by the CUSTOMER in its written specifications. The CUSTOMER remains responsible for the information contained in these specifications. EDRO is responsible for confirming its understanding of these specifications and its compliance with them. Moreover, EDRO cannot be held in any way liable for any studies and construction work carried out on the basis of specifications that provide compulsory descriptive details of the characteristics of the equipment to be manufactured and commissioned.
3. PRICES AND TERMS OF PAYMENT
3.1 Prices are given in Australian Dollars ($) unless otherwise specified. They are subject to the taxes and duties in force at the date of the invoice drawn by EDRO
3.2 Prices are ex works unless otherwise specified and packing is not included. They will necessarily be increased by transport costs, should EDRO be responsible for transport and delivery. “Works” are understood as being at Unit 1 / 7 Bearing Road, Seven Hills NSW 2147 Australia.
3.3 The price of sale as agreed upon in the order may be increased, notably, but not exclusively, if:
- The CUSTOMER requests for modifications to the terms of the order, which must be confirmed in an amendment signed by both parties,
- The CUSTOMER requests for extra services, which must be confirmed in an amendment signed by both parties,
- There is an increase in the cost or rate for raw materials,
- Currency devaluations or new legislative or statutory measures lead to an increase in costs.
3.4 Products and services are payable to EDRO’s registered office at sight when the order is accepted by EDRO.
3.5 If the CUSTOMER requests a pro-forma invoice in view of obtaining credit, this document will be issued subordinate to EDRO being subrogated by the credit company, which must pay the loan attributed to the machine or machines concerned directly to it.
3.6 Payment of a down payment upon the order may in no way be considered as giving the CUSTOMER any rights not to honour its total commitment. Consequently, this payment implies an obligation to pay the entire balance in full, without prejudice to any possible damages.
3.7 Any late payment will be liable ipso jure, and without any prior official notification, to interest on arrears equivalent at three times the legal rate in force on the date of claim and beginning on the date due. Late payment constitutes an event of default and outstanding sums to be paid by the CUSTOMER become due in full immediately.
3.8 In the event of any non-payment on due dates, all amicable and legal collection charges, including solicitor’s, notary’s, bailiff’s and similar fees, and interests will be at the cost of the CUSTOMER.
4. DELIVERY - TRANSPORT
4.1 Delivery schedules are always given for information purposes only and have no obligatory nature. Consequently, any delay that may occur cannot be a cause for requesting an annulment and/or cancellation of the order by the CUSTOMER, or the basis for any legal proceedings claiming damages for any prejudice whatsoever.
4.2 Correct delivery of:
- goods ex works is recognized by the transport documents being signed without any reservations by EDRO and the carrier, or the CUSTOMER, if the latter collects the goods itself,
- services are recognized by the acceptance report being signed.
4.3 Risks are transferred to the purchaser ex works. No matter what system of transport or delivery is used, equipment always travels at the cost and risks of the CUSTOMER. Therefore it is the CUSTOMER’s responsibility to make any reservations it considers necessary and/or to present any claims to carriers in the event of damage, delays (compared with the delivery schedule specified by the carrier), missing parts or for any other reasons.
5. RESERVATION OF TITLE
5.1 All the goods sold by EDRO are covered by the conditions stipulated by Law. As a result, EDRO maintains ownership of goods sold until their cost has been settled in full. Failure to pay at any due date will lead to an immediate claim of on goods and studies. If the purchaser resells goods sold under reservation of title in the course of his normal business, it must then take all due care to subrogate EDRO concerning any rights it may hold in respect of the subsequent purchaser.
5.2 These measures do not constitute an obstacle to transferring any risks of loss or deterioration of the goods sold to the purchaser on delivery, as well as any damage that they may cause. In the event of any claims made on the equipment, if necessary an estimate may be made that takes account of any loss of value of the goods, which, together with any costs related to returning and dismantling the product, will be entirely at the CUSTOMER’s expense. Compensation may be made by EDRO with amounts already received.
5.3 Studies, layout drawings and documents of any kind provided by EDRO will always remain its exclusive property. They must be returned to it on request and may not be divulged by the CUSTOMER to any third parties without written authorisation from EDRO.
5.4 All technical documents and information communicated by EDRO are protected by law and international agreements on intellectual property.
6. CONFIDENTIALITY
6.1 The CUSTOMER agrees to consider all documents and information emanating from EDRO as being strictly confidential and not to divulge, sell or transfer any such information to any third party for a period of ten years after their date of communication, unless:
- EDRO has given its prior written agreement, or
- Required by law or any legal or administrative decision not subject to appeal.
6.2 However, information is not considered as being confidential when the CUSTOMER is able to provide evidence that the information concerned:
- Has become public property on account of third party acts in no way attributable to the CUSTOMER,
- Has been lawfully received from a third party without any infringement to the present conditions,
- Has been developed independently by the CUSTOMER beforehand and in all good faith.
The CUSTOMER agrees to keep strictly confidential any information, which it may have received.
7. GUARANTEES
7.1 The EDRO guarantee is strictly limited to failures related to goods designed and built by EDRO.
7.2 The responsibility lies solely with the customer to ensure the equipment offered is suitable for the CUSTOMER’S intended use. EDRO offers no guarantee of suitability for your particular purpose.
7.3 In the case of specific goods built from specifications drawn up by the CUSTOMER, EDRO’s responsibility is exclusively limited to its compliance with these specifications, concerning both studies invoiced and GOODS manufactured.
7.4 Goods are guaranteed as follows: machines chassis / housing for a period of 12 months after their date of delivery and any other machine part for a period of 6 months after their date of delivery, on condition that they are used solely for the applications and with the capacities, for which they have been built and that their maintenance has been normally made taking into account of operating conditions and the operator’s manual.
7.5 Goods sold are guaranteed against functional defects resulting from defects in materials, manufacture or design as described below. Any functional defect must appear and be recognized by EDRO within the warranty implementation period, according to point 7.3,after the delivery date for goods used according to the order or specifications supplied by the CUSTOMER. This period is not valid for parts containing electronic components, in which case the guarantee period will last for 3 months after the date of delivery. Similarly, the period may be adjusted depending on the environmental conditions to which components of all types may be subjected. The guarantee is excluded and EDRO may not be held liable. Moreover, as far as kits or spare parts are concerned, any claims or complaints on defects that have been discovered must be made eight days at the latest after the date of delivery of the merchandise concerned, the date appearing on the EDRO delivery slip being considered as the valid date of delivery. After this period, no claims will be accepted.
7.6 Any return of merchandise will not be accepted without prior written agreement from EDRO. Merchandise accepted by EDRO will give rise to the issue of a credit note that may only be compensated by means of subsequent invoices. EDRO reserves the right to control any merchandise returned and, if appropriate, dispute the causes given by the CUSTOMER that justify its return from the latter’s point of view. Effective application of guarantee conditions may be refused in any such case. The CUSTOMER is responsible for providing evidence of noncompliance or of the existence of a defect concerning the goods.
7.7 For the requirements of Article 7, the guarantee is not applicable:
- If raw material, parts or faulty design-work is provided by the CUSTOMER,
- To consumables,
- If the functional defect results from an intervention carried out on the goods without written authorization from EDRO,
- If, following delivery in kit-form, the equipment has not been fitted by the CUSTOMER as per the recommendations supplied in the assembly instructions or has undergone modifications without EDRO’s written approval,
- If defective operation can be attributed to:
• A case of force majeure; the goods’ normal wear;
• Negligence and/or an error in maintenance made by the CUSTOMER or the end-user of the goods; use contrary to instructions supplied by EDRO (acquisition, commercialisation and use of EDRO goods implies knowledge and understanding of their characteristics and conditions of use in compliance with safety instructions. The CUSTOMER is responsible for familiarizing itself perfectly with these characteristics, complying with them and informing all users thereof.),
• Use of spare parts not supplied by EDRO or parts that are different from those originally supplied.
7.8 Under the terms of the guarantee, EDRO will replace any parts recognized as being faulty by its technical services free-of-charge. This guarantee only covers labour costs, disassembly and re-assembly. The guarantee may not be extended under any circumstances whatsoever to cover the consequences of any possible defect. Replacement of parts during the guarantee period does not prolong the equipment’s guarantee period.
7.9 By express agreement between the parties, EDRO’s liability resulting from any functional defect in the goods is limited to the above measures, notably concerning any hidden defects and loss of use. Material and equipment not included in elements constructed by EDRO, but which may be a part of the supply, are always sold as per the general clauses and conditions of their respective manufacturers, without any possibility of EDRO being held responsible in this respect.
8. FORCE MAJEURE
8.1 If EDRO is incapable of fulfilling one or more of its obligations on account of events that have occurred outside its control and which are defined as being cases of force majeure, it has the right, without any legal action being required, to cancel the contract and/or suspend its execution either partially or in full, without any liability for damages.
8.2 The following situations, but not exclusively so, are considered to be cases of force majeure: acts of war, mobilisation, legal measures taken by public or other authorities preventing or limiting import or export of merchandise, the entry or exit of persons, or their delivery, together with strikes, sabotage, occupation of works or any other incidents that may occur inside the company, shortages of work, stoppages, shortages of energy or raw materials, transport problems as well as any other situation that EDRO could not reasonably foresee or with which it has suddenly been confronted, without it having to prove the effects of the above on execution of the contract.
9. INSURANCE AND LIABILITIES
9.1 EDRO has taken out a liability insurance policy with a manifestly solvent insurance company for covering risks generally associated with its activities and at the profession’s normal level. Valid insurance certificates are available for its clientele. By express agreement, the CUSTOMER waivers all rights of appeal of any type whatsoever over and above maximum levels of liability subscribed to by EDRO, as stipulated on its insurance certificates. EDRO’s liability is limited to direct material damage caused to the CUSTOMER resulting from faults that can be attributed to EDRO in execution of the contract.
9.2 Prejudicial consequences of faults committed by the CUSTOMER or any third party in relation to the contract are excluded from EDRO’s liabilities. Under no circumstances whatsoever, may EDRO be required to provide compensation for immaterial or consequential damages, notably losses of use, profit or opportunity, commercial detriment, or foregone opportunities for profit.
9.3 The CUSTOMER guarantees that its insurers or any third party in contractual relations with it will abandon any appeal against the seller or its insurers over and above the aforementioned limits and exclusions.
10. PARTIAL NULLITY
Even if one or more clauses contained in the GSC are considered invalid, the other clauses will continue to hold their exclusive and contractual nature.
11. ASSIGNMENT OF ORDERS
The order placed in application of the present GSC may not be assigned or transferred by the CUSTOMER without prior written authorization from EDRO.
12. APPLICABLE LAW AND ASSIGNMENT OF JURISDICTION
12.1 Except as may be otherwise agreed by us, the contract shall be governed by the laws of the State or Territory in which we accept your order.
12.2 In the event of any dispute, efforts will be made to reach an amicable solution materialized by the dispatch of a registered letter with acknowledgement. If this letter remains to no effect within thirty days, the parties will assign express and exclusive jurisdiction to the NSW Court, notwithstanding plurality of defendants or introduction of third parties, even in the case of matters of special urgency or any conservatory action.