The following terms and conditions apply where Honeywell Limited ("Honeywell") supplies goods or services to a customer ("Customer").
1. Definitions
For the purpose of these Conditions and unless the context otherwise requires:
¡°Conditions¡± means these Terms and Conditions of Sale
¡°Contract¡± means the contract formed in accordance with clause 2.1, consisting of Honeywell¡¯s proposal (if any), the relevant invoice and these Conditions.
"Equipment" means equipment manufactured by Honeywell or its affiliates.
¡°Errors" means the failure of Goods to perform a function as described in the Honeywell proposal, the Honeywell functional specification for those Goods, the appropriate Honeywell user manual or Honeywell product literature as the case may be.
"Goods" means Equipment or Software.
¡°GST¡± means the tax imposed by the A New Tax System (Goods & Services) Act 1999 (Cth) and related imposition Acts of the Commonwealth.
"Loss or Damage" includes all types of property, pecuniary or other loss or damage, including consequential loss or damage and loss of profits.
"Non-Honeywell Goods or Services" means equipment, documentation, product literature, labour, knowledge, service or computer programs in machine readable form, that is supplied, manufactured, installed or provided by a person other than Honeywell.
"Person" includes a corporation.
"Services" means Honeywell labour or service.
"Software" means computer programs developed by Honeywell or its affiliates in the form of machine readable instructions and any documentation or product literature relating to those computer programs.
"System" may include Honeywell equipment and software and Non-Honeywell Goods or Services.
2. Contract Formation
2.1 Subject to clause 2.3, a binding agreement will form between the parties:
(a) if these Conditions form part of a proposal to Customer, on receipt by Honeywell of Customer's unconditional acceptance of the proposal, evidenced by Customer's purchase order referencing the proposal; or
(b) otherwise, on Honeywell's written acceptance of Customer's purchase order; and the Contract will constitute the entire contract between the parties in connection with the sale of Goods and Services;.
2.2 Any proposal incorporating these Conditions:
(a) will not be valid after 30 days of its date, unless otherwise agreed by Honeywell; and
(b) may be varied or withdrawn by Honeywell at any time prior to unconditional acceptance by Customer.
2.3 No modifications or variation of the Contract (including any statement by Customer that Customer¡¯s terms will apply) shall bind Honeywell unless expressly agreed to in writing by an authorised representative of Honeywell.
2.4 These Conditions will prevail in relation to the supply of Goods and Services to the extent of any inconsistency between these Conditions and any other documentation agreed by Honeywell under clause 2.3.
3. Express Warranty
3.1 Subject to these Conditions, Honeywell hereby expressly warrants that for three (3) months from date of supply, installation or provision (whichever is the earlier) of Goods or Services (the Period), the Goods and Services shall be free from Errors. Honeywell will if any Errors occur in Goods or Services, during the Period, at its election, either:
(a) in the case of Equipment,
(i) replace the Equipment or supply equivalent equipment FOB at Honeywell's facility;
(ii) repair the Equipment;
(iii) pay the cost of replacing the Equipment;
(b) in the case of Services,
(i) supply the Services again; or
(ii) pay the cost of having the Services supplied again;
(c) in the case of Software,
(i) repair, modify or make good the Software; or
(ii) make available to Customer instructions to enable Customer to repair, modify or make good the Software; or
(iii) supply Customer with replacements.
3.2 Clause 3.1 will not apply to Errors attributable to:
(ii) Non-Honeywell Goods or Services;
(iii) any modification or repair of Goods unless made by Honeywell or with Honeywell¡¯s prior written approval;
(iv) negligent use, abuse or misuse of Goods;
(v) the use of Goods under environmental, power or operating conditions beyond the limits or constraints specified by Honeywell;
(vi) the installation or wiring of any Goods other than in accordance with Honeywell's instructions;
(vii) the use of any Goods with any Non-Honeywell Goods or Services;
(viii) wear or burn-out resulting from usage of goods of a kind inherently susceptible to burn-out.
3.2 To the full extent permitted by law, Honeywell does not make any representations or give any warranty as to the overall performance of any System or the results of any process with which the Goods or Services are used or integrated
4. Limitation of Liability
4.1 To the full extent permitted by law and subject to clauses 3.1 and 4.2:
(a) Honeywell makes no warranty and will not be liable for any breach of statutory obligation or implied condition or warranty in respect of Goods and Services or the materials used, Systems or results of any process with which the Goods and Services are used or integrated;
(b) Honeywell shall under no circumstances be liable in any way whatsoever to Customer for any Loss or Damage sustained or incurred by Customer or any other party arising directly or indirectly out of the supply of Goods or Services by Honeywell, the use or performance of Goods or Services in isolation or as part of a System, any breach by Honeywell of the Contract, or negligence of Honeywell. Honeywell¡¯s liability to the Customer, if any, in contract, tort or otherwise will be reduced to the extent the Customer contributed to the Loss or Damage.
(c) the express warranty in clause 3.1 is in substitution for all other terms, conditions, warranties and representations, implied by statute or otherwise, and all other terms, conditions, warranties and representations are excluded.
4.2 Where the Trade Practices Act or equivalent State legislation implies warranties in respect of Goods or Services, and the Goods or Services are of a kind not ordinarily acquired for personal, domestic or household use or consumption then the Customer¡¯s remedies shall be limited to those set out in clause 3.1.
4.3 This clause 4 will survive termination or completion of the Contract.
5. Price and Terms of Payment
5.1 Unless stated otherwise in writing, all prices quoted by Honeywell, are exclusive of all taxes, (including any GST), duties, levies and any other government charges, and where applicable shall be added to the price payable by the Customer to Honeywell. When GST is payable by Honeywell in respect of a taxable supply made by Honeywell to the Customer, the Customer shall pay Honeywell, in addition to the GST-exclusive price, the amount on account of GST shown in the tax invoice rendered by Honeywell.
5.2 Unless stated otherwise in writing, prices quoted by Honeywell, are based on the factory or supplier price list as held by Honeywell at date of proposal and also on rates of duty and primage wages and salaries, freight insurance and exchange rates prevailing at the date of the proposal. Any increase in price resulting from variation in any of these factors shall be payable by Customer.
5.3 Honeywell reserves the right to raise and be paid for progress claim invoices on the Customer. Progress claim invoices may be raised upon the supply of Equipment Services or Software to Customer or to some other place agreed or upon the completion of agreed benchmarks or other measure as agreed between Customer and Honeywell.
(a) where Honeywell has Goods ready for supply in accordance with a delivery schedule agreed between Honeywell and Customer, but Customer is not able to adhere to that delivery schedule, then Honeywell may invoice Customer in accordance with that delivery schedule. In the absence of an agreed delivery schedule, the current Honeywell delivery schedule, as provided to Customer, shall be deemed to be the delivery schedule.
(b) Goods paid for by Customer under sub-clause 5.3 will be held for Customer under Honeywell¡¯s custody, care and control and will be insured by Honeywell for fire and burglary at replacement value.
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5.4 Except as otherwise agreed, invoices will be raised by Honeywell upon the supply of Equipment, Services or Software.
5.5 Subject to approval of Customer's credit by Honeywell, all charges shall be due and payable and paid by Customer to Honeywell within thirty (30) days from date of invoice. Where Honeywell has not approved Customer's credit, all charges shall be due and payable and paid by the Customer to Honeywell upon delivery of Goods or Services.
5.6 All payments shall be in Australian legal currency.
5.7 Any moneys for which an account or invoice has been furnished to Customer, and which remain unpaid for ninety (90) days after the due date for payment shall, at Honeywell's option, bear interest as from the date upon which payment is due at the prevailing commercial overdraft rate of Honeywell's then current bank.
6. Risk and Title
6.1 Property and ownership in Equipment will not pass to the Customer but will remain in Honeywell until the purchase price of the Equipment have been paid in full.
6.2 Until property in the Equipment passes to the Customer:
(a) the Customer shall hold the Equipment as fiduciary bailee and agent for Honeywell;
(b) unless otherwise notified in writing, the Customer is authorised to sell or use the Equipment in the ordinary course of business;
(c) after giving 48 hours notice to the Customer, Honeywell shall be entitled to enter the Customer¡¯s premises between 9am and 5pm to inspect the Equipment;
(d) the Equipment shall be stored separately and in a manner to enable them to be identified and cross-referenced to particular invoices;
(e) if the Customer sells or uses the Equipment in a manufacturing or value added process of its own or a third party, then the Customer shall hold such part of the proceeds of the sale, manufacturing or value added process as relates to the Equipment in trust for Honeywell. Such part shall be deemed to equal in dollar terms the amount owing by the Customer to Honeywell for these Equipment at the time.
6.3 If the Customer:
(a) fails to make payments for the Equipment on the due date; or
(b) commences to be wound up or is placed under official management or suffers a receiver or manager to be appointed or becomes insolvent or bankrupt or commits an act of bankruptcy,
the Customer will deliver the Equipment to Honeywell upon demand. In the event the Customer does not comply with a demand within 48 hours of receipt, Honeywell shall be entitled to enter upon the Customer¡¯s premises at any time to do all things necessary in order to take possession of the Equipment. The Customer will also pay on demand all costs associated with the exercise of Honeywell¡¯s rights under this clause.
7. Delay
7.l It is contemplated that any Goods or Services to be supplied by Honeywell will be supplied during regular working hours on regular working days. If for any reason Customer requests Honeywell to supply Goods or Services outside regular working hours, any overtime or additional expenses occasioned thereby shall be invoiced to and paid by Customer to Honeywell as part of the purchase price for such Goods or Services, at Honeywell's then current labour rates to customers.
7.2 Extra costs incurred by Honeywell due to cessation of work occasioned by Customer's instructions or lack of instructions, by interruptions, mistakes, or work for which Honeywell is not responsible shall be reimbursed by Customer to Honeywell upon demand. Extra costs incurred by Honeywell due to occurrences under clause 8 and sub-clause 8.2 in these terms and conditions shall be reimbursed by Customer to Honeywell upon demand.
8. Work to be done by others
8.1 Without prior written agreement with Customer to the contrary, Honeywell will not set in place or install equipment or services piping nor carry out any electric wiring work, welding or entry into process lines, or building work such as concreting, cutting and making good, or painting. Such work shall be the responsibility of the Customer and at its expense and shall not be the responsibility of Honeywell.
8.2 Honeywell will not set the cut out or operating points of safety devices unless under the supervision and at the sole responsibility of Customer.
8.3 Honeywell will not provide lifting machinery, scaffolding, toilets or other site amenities.
9. Delivery, etc.
9.1 Delivery of Goods not agreed to be installed by Honeywell shall be FOB a Honeywell warehouse or Honeywell affiliated or office selected by Honeywell.
9.2 The delivery times made known to Customer are estimates only and Honeywell does not accept any responsibility for delays whether caused by fire, strike, lockout, dispute with workmen, delays caused by suppliers or others, flood, accident, transportation delays, fuel shortage, inability to obtain material, war, demand or requirement of Government or statutory authorities or any other cause beyond its control. In event of any delay, the date or dates for performance of this contract by Honeywell shall be extended for a period at least equal to the time lost by reason of the delay or the delays subsequently caused therefrom.
9.3 If the Goods or Services ordered by Customer are unable to be supplied to Customer by the scheduled delivery date, Honeywell will notify Customer and with Customer's consent, Honeywell may substitute equivalent goods or services in place of the Goods and Services ordered by Customer, in order to satisfy Customer's order.
10. Loss of or Damage to Goods
10.1 To the extent permitted by law and subject to clause 4.1(b), in the case of Goods not agreed to be installed by Honeywell, Honeywell shall not be liable for any loss of or damage to the same after delivery FOB point of shipment, including any loss or damage in transit;
10.2 To the extent permitted by law and subject to clause 4.2, in the case of Goods agreed to be installed by Honeywell, Honeywell shall not be responsible for loss of or damage to goods, after those Goods have been delivered to the site. Should any Goods after being delivered and prior to payment by Customer be damaged or destroyed in any way whatsoever, other than by the fault of Honeywell, Customer agrees promptly upon demand to pay or reimburse Honeywell. In addition to and apart from any and all other sums due to or to become due to Honeywell under these terms and conditions, an amount equal to the loss or damage so occasioned.
11. Claims
Goods supplied shall be examined by Customer promptly upon delivery. To the full extent permitted by law and subject to clause 3.1 and 4.2, no claim will be recognised by Honeywell unless such claim is reported to Honeywell within seven (7) days after delivery of the Goods to which the claim relates.
12. Return of Goods
12.1 Goods may be returned for credit if they do not correspond with the description under which they were sold.
11.2 Subject to sub-clause 12.1 no Goods may be returned for credit unless Honeywell's written approval has been first obtained and the original invoice number and date have been quoted for reference.
12.3 Subject to sub-clause 12.1, only Goods of current design in original sealed cartons, will be considered for credit, and a handling charge of ten per cent (10%) of selling price will be made by Honeywell and paid by Customer to cover necessary inspection, adjustment, repacking and clerical work. Goods invoiced more than three (3) months prior to attempted return, Goods which are special in any nature whatsoever, software wirings and tubing cut to length and goods bought in to special order may not be returned.
13. Variations
Honeywell reserves the right to revise at any time the extent or type of goods or services it supplies to the Customer, if it believes that other goods or services supplied by Honeywell can fulfil the same function.
14. Dispute Resolution
14.1 The parties agree that if a dispute arises out of or relates to the Contract, a party may not commence any court or arbitration proceedings relating to the dispute unless it has complied with the provisions of this clause 14, except to seek urgent interlocutory relief.
14.2 A party claiming that a dispute has arisen must give written notice to the other party specifying the nature of the dispute. On receipt by the other party of the notice, the matter must be referred to the senior management of each party for resolution. If the managers are unable to resolve the dispute within ten business days, the parties must mediate the dispute under the mediation rules of the Law Society of New South Wales and the President of the Law Society or the President 's nominee will select the mediator and determine the mediator's compensation.
15. Software Licence
Honeywell agrees to grant to Customer a licence to use any Software provided pursuant to the Contract, upon and subject to the terms and conditions set out in Honeywell's standard Software Licence Agreement which Customer shall execute prior to delivery or installation of such Software.
16. Governing Law
These Conditions are governed by the laws of New South Wales. Each party submits to the non-exclusive jurisdiction of the courts of NSW and the courts which hear appeals from those courts.
17. Indemnity
Customer agrees to indemnify Honeywell, its employees and agents and each of them from and against all loss or damage, resulting directly or indirectly from any acts, errors or omissions of Customer in connection with the Contract or the use, possession, operation of the Goods or Services. This clause will survive termination or completion of the Contract.
18. Intellectual Property
Subject to clause 15, nothing in these Conditions shall confer on Customer any licence, right, title or interest in or to any intellectual property comprised in the Goods or Services, which will at all times remain the property of Honeywell or its suppliers.