TERMS & CONDITIONS OF SALE
Throughout these terms and conditions, “FSM” refers to F.S.M. (FOOD SERVICE MACHINERY) PTY. LTD. (ACN 005 604 633 ABN 27 005 604 633) or any of its authorised agents or assigns.
1. GENERAL: These terms and conditions shall apply to the exclusion of all others including any terms and conditions of the Customer (whether on the Customer’s order form or otherwise). The Customer acknowledges that these terms and conditions embody the whole agreement between the parties and agrees to be bound by them.
2. PAYMENT: Payment shall be made by the Customer to FSM for all goods supplied, work and labour done and services rendered within 30 days from end of month’s trading, by those Customers with approved, authorised credit accounts. All other Customers must pay either COD or prior to despatch of goods. The Customer acknowledges that time is of the essence with regard to payment and that any breach of this term will enable FSM to exercise all of its rights contained herein, including (but without in
any way limiting its rights) THE RIGHT TO cancel further credit and to take legal action for the recovery of all sums outstanding. Cash settlement discounts may be granted by FSM from time to time without in any way limiting FSM’s rights under this clause.
3. INTEREST: Should payment remain outstanding beyond FSM’s payment terms as outlined in clause 2 above, the Customer agrees to pay interest on all amounts outstanding from the due date until the date of payment at a rate of 1.5% per month.
4. COSTS: Should payment remain outstanding beyond FSM’s payment terms as outlined in clause 2, the Customer is liable for all costs, including legal costs, (on a Solicitor/own client basis) and mercantile agents fees incurred by FSM in recovering the amount outstanding.
5. : DELIVERY:
(a) Goods shall be delivered to the address specified in the Customer’s order as the address for delivery unless otherwise agreed to in writing between the parties.
(b) In the event that delivery date is specified by the Customer FSM shall use its best endeavours to comply with the Customer’s requests. In no circumstances will FSM be liable for any loss or damage of any kind whatsoever in the event that it is not able to comply with the Customer’s request for delivery at a certain time. The Customer acknowledges and agrees that it will not make any claim against FSM for any loss or damage incurred as a result of late delivery.
(c) Prices quoted include free delivery only to Melbourne, Sydney, Brisbane, Adelaide, Newcastle and Canberra Metro areas on all orders valued at $400 (excl. GST & Freight) or more. All Britannia products are ex factory Sydney.
All other orders will be despatched “freight collect” to purchaser’s nominated freight account or otherwise by FSM’s choice of carrier. A minimum delivery charge of $20 (excluding GST) will apply where goods are delivered by FSM’s freight carrier.
Deliveries are only to ground floor level, kerbside drop or goods receiving area, where it then becomes the purchaser’s responsibility and expense to supply labour and/or equipment to unload and position equipment on site.
(a) The Customer will be deemed to have accepted the goods as being in accordance with its order unless it notifies FSM in writing of its claim within 7 days of receipt of the goods.
(b) No return of allegedly defective goods will be accepted by FSM unless it has given prior written authorisation for the return.
7. WARRANTY: All warranties whether express or implied and whether statutory or otherwise with regard to the goods supplied by FSM as to quality, fitness for purpose or any other matter are hereby excluded except insofar as any such warranties are incapable of exclusion at law. (13 months parts, 13 months labour.)
(a) Subject to paragraph (d) FSM undertakes to replace all goods and components thereof imported or manufactured by it, which FSM in its sole and absolute discretion deems to be defective in materials or workmanship under proper, normal and recommended conditions of use and maintenance as follows:-
All equipment imported/manufactured by FSM: within 13 months from the date of delivery to the Purchaser.
Items not covered under (a) are sold subject to the manufacturer’s or supplier’s warranty (if any) in so far as FSM is able to pass on the benefit to the Purchaser.
N.B. Warranty on all FSM spare parts and/or replacement parts is for three months only.
The following are all specifically excluded from warranty provisions:
(i) Toaster elements, light globes, infra-red tubes, quartz tubes or any glass items, or damage to cutting blades.
(ii) Installation, or damage due to improper installation, or connection to incorrect gas or voltage or poor quality water, or equipment damaged in transit, or by accident, alteration, negligence, abuse, misuse, or as a result of unauthorised repair, or damage or deterioration of equipment caused by use of unauthorised spare parts.
(iii) Damage to or deterioration of equipment operated or maintained contrary to operating and/or installation instructions.
(iv) Cleaning of equipment.
(v) Voltage or gas conversions or pilot light adjustments or thermostat calibrations.
(vi) Travel costs, overtime rates, or other like surcharges, freight/carriage to or from FSM’s warehouse or premises of authorised repairer in the event of a warranty claim.
Warranty work will be carried out between the hours of 8.30 a.m. and 4.30 p.m. weekdays.
(b) FSM’s liability under this guarantee is limited to the replacement of defective goods or components. All other costs including without limitation, cartage, carriage, labour and installation shall be borne by the Purchaser. Warranty claims will not be considered, for any goods remaining unpaid and in breach of FSM’s Terms of Payment.
(c) While the goods are in the custody of FSM for investigation they shall be at the risk of the Purchaser and no liability shall attach to FSM, its servants or agents for any damage occasioned to, or loan of, the goods howsoever arising.
(d) To obtain the benefit of this guarantee the Purchaser must give notice in writing to FSM immediately upon it becoming aware of the alleged defect and in any event before the expiration of the said 13 month period (3 months on replacement spare parts).
8. CHANGE OF OWNERSHIP: The Customer agrees to notify FSM in writing of any change of ownership of the Customer within seven (7) days from the date of such change and indemnifies FSM against any loss or damage incurred by it as a result of the Customer’s failure to notify FSM of any change.
9. CANCELLATION: Orders placed with FSM cannot be cancelled without the written approval of FSM. In the event that FSM accepts the cancellation of any order placed with it it shall be entitled to charge a reasonable fee for any work done on behalf of the Customer to the date of the cancellation, including a fee for the processing and acceptance of the Customer’s order and request for cancellation. In the case of non standard manufacture or non stock items cancellation of orders cannot be accepted.
10. GOODS RETURNED: In all cases, goods will not be accepted back by FSM unless FSM has received prior notification, either by advising our agent or our office. At this time we will advise a return authorisation number and the mode of transport acceptable to us. All freight must be prepaid and clearly marked with the appropriate return authorisation number. In cases where freight is charged to us without permission, or where no authorisation number is displayed, deliveries will not be accepted. Valid claims
for goods sent incorrectly will be credited in full provided we are notified within seven (7) days of receipt of goods and provided goods are returned with our authorised carrier only.
Claims will not be recognised after seven (7) days. A 15% handling fee will apply to all goods returned against orders correctly executed and we reserve the right to charge for any cost incurred in such execution. In the case of a non-standard manufacture or non stock items, and where orders have been correctly executed, no returns will be accepted.
11. LIEN: The Customer hereby acknowledges that FSM has a lien over all goods in its possession belonging to the Customer to secure payment of any or all amounts outstanding from time to time.
12. JURISDICTION: The proper law of all contracts arising between FSM and the Customer is the law of the State of Victoria and the parties agree to submit to the jurisdiction of the Courts of that State.
13. TITLE: Property in any article sold by FSM shall not pass from FSM to the Purchaser until the Purchaser has paid for the article in full and all cheques and other negotiable instruments have been cleared. The risk of loss or damage to the article shall be entirely at the risk of the Purchaser upon the article being despatched from FSM’s premises.
If any payment for any article sold by FSM is overdue or if the Purchaser pays FSM by cheque (in full or in part) and such cheque is not met on presentation by FSM, FSM reserves the right to retake physical possession of the goods in full or partial satisfaction of the debt and for this purpose the Purchaser hereby consents to FSM or its agents or servants entering upon the Purchaser’s premises.
Monies owed by the Purchaser to FSM shall become due immediately upon the commencement of any act or proceeding in which the Purchaser’s solvency is involved.
14. POWER TO SELL GOODS: Nothing herein contained shall prevent the Customer from selling the goods to any third party provided that:-
(a) The proceeds of any such sale shall be held in trust by the Customer for FSM, and
(b) The proceeds of such sale are kept separate from all other monies held by the Customer.
15. WAIVER: Failure by FSM to insist upon strict performance of any term, warranty or condition of the contract shall not be deemed a waiver thereof or of any rights FSM may have and no express waiver shall be deemed a waiver of any subsequent breach of any term, warranty or condition.
16. NO REPRESENTATIONS: The Purchaser acknowledges that neither FSM nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in writing whether as to the fitness of the goods for any particular purpose or any other matter.
17. INDIRECT LOSS:
(a) So far as the law permits, FSM shall be under no liability to the purchaser for any loss or damage to persons or property, or loss of property, or for death or injury caused by or arising out of or in connection with any act, matter or thing (including negligent acts or omissions) done, omitted or permitted to be done by FSM, its servants or agents.
(b) So far as the law permits, FSM shall not be liable to the purchaser in any way whatsoever for any indirect or consequential loss, loss of profit or any other economic loss including, without limitation, any loss by reason of delay, defective or faulty materials or workmanship, negligence or any act, matter or thing done, permitted or omitted to be done by FSM.
18. DISCLAMER: Due to our continuing policy of product development, specifications may change without notice.