As used in these terms and conditions, “Insol®” means Insol Limited and “Purchaser” means any person that purchases products or services from Insol.
These terms and conditions apply to every contract between Insol® and the Purchaser for the sale of products and the supply of services. These terms and conditions take precedence over any conditions imposed by the Purchaser, including any terms and conditions in the Purchaser’s purchase order, and any prior communications whether written or oral. These terms and conditions may only be varied by written agreement signed by an authorised representative of Insol.
The Purchaser’s receipt of products shall constitute its acceptance of these terms and conditions.
If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
Insol® reserves the right to change these terms and conditions at any time. Any changes shall not apply to pending confirmed orders.
2. ORDERS AND QUOTATIONS
Each order placed with Insol® shall be confirmed in writing by Insol before acceptance of such order shall be deemed to have occurred. Insol shall not start to manufacture the products until it receives from the Purchaser a firm, written purchase order and such purchase order has been confirmed by Insol.
When Insol® furnishes the Purchaser with a quotation, Insol shall have the absolute right to modify or cancel such quotation before the Purchaser’s acceptance thereof. A firm and binding contract shall arise when Insol receives the Purchaser’s written acceptance of a quotation. A quotation shall be deemed cancelled 30 days from its date of issuance, unless previously accepted by the Purchaser.
The Purchaser may not change or cancel a confirmed order or accepted quotation except with Insol®’s approval. Insol may condition its approval upon full reimbursement of the costs and expenses it incurred, or will incur, as a consequence of such change or cancellation.
Availability of certain products, stocks lengths and quantities may vary at certain times. The Purchaser should inquire about the availability of products and lead times at the time it places an order.
Insol® shall set the prices of its products and services. Such prices are subject to change at any time without notice. Price changes shall not apply to pending confirmed orders.
The prices do not include GST. GST shall be added to the prices at the time of invoice.
Unless expressly stated otherwise in the order confirmation or sales quotation, the prices do not include freight charges.
Unless expressly stated otherwise in the order confirmation or sales quotation, the prices do not include installation of the products.
Any ship date or delivery date that Insol® may give to the Purchaser is given in good faith but as a best estimate only. Insol shall use its reasonable efforts to make timely delivery although it can not guarantee an exact delivery date. The Purchaser understands that time is not of the essence. Insol is not responsible for late delivery due to circumstances beyond its control. If Insol is unable to deliver the products because of any cause beyond its control (including delays by the Purchaser), Insol may suspend delivery, or cancel the Purchaser's order, without incurring any liability for loss or damage suffered by the Purchaser. Insol accepts no liability whatsoever for any loss or damage suffered by the Purchaser because of any delay or failure to deliver any of the products, irrespective of the cause.
Unless the Purchaser makes a specific request in its order, Insol® shall determine the mode of shipment. Insol shall ship the products as soon as they are ready for delivery. The Purchaser may neither delay delivery nor refuse to accept delivery.
At the time of delivery, the Purchaser shall visually inspect the products for any obvious damage, defects or other evidence that the products do not conform to the order. The Purchaser shall note any damage on the shipment consignment note accompanying the shipment. Insol® shall not be responsible for damage that could reasonably have been detected by the Purchaser before the Purchaser signed the shipment consignment note acknowledging receipt in good condition.
The Purchaser shall notify Insol® of any damage to the products within two working days after receipt of delivery. If the Purchaser does not give such notice within two working days, the products shall be deemed to have been accepted in good order and condition. The Purchaser shall include with such notice all relevant details including without limitation, the shipment consignment note with the damage duly noted thereon, the invoice to which the shipment relates, a description of the damage and digital photos.
Risk of loss or damage to the Products shall pass from Insol® to the Purchaser upon their dispatch from Insol’s factory, where the Purchaser pays the freight. Risk of loss or damage to the Products shall pass from Insol to the Purchaser upon their delivery to the Purchaser, where Insol pays the freight. Insol shall not be responsible for loss or damage to the Products occurring after risk of loss shall have passed from Insol to the Purchaser.
Payment shall be made in accordance with the payment schedule, if any, in the order confirmation. Absent a payment schedule in the order confirmation, and subject to credit approval, the payment terms are “Net 20 EOM” meaning that payment is due by the 20th day following the end of the month in which Insol® dispatches the products. Absent credit approval, the payment terms are “CBD” meaning cash before delivery.
Insol® reserves the right to alter its payment terms to the Purchaser at any time in Insol’s sole and absolute discretion. Insol may exercise such right on an order by order basis. Insol may require the Purchaser to post security for payment before acceptance of an order or its delivery. Insol may withhold acceptance of an order, or its delivery, until the Purchaser pays cash or posts security in accordance with the payment terms specified by Insol. Insol may delay shipping an order until the Purchaser has paid any overdue balance.
The Purchaser authorises Insol® to collect, retain and use any information about the Purchaser, for the purpose of assessing the Purchaser’s creditworthiness. The Purchaser authorises Insol to disclose any information obtained to any person for the same purpose.
All payments shall be made without deduction of retention monies or any set off whatsoever. For the avoidance of doubt, the Purchaser shall have no right to delay payment nor set off, withhold or deduct any sum from an invoice as a result of any claims that the Purchaser may have against Insol®concerning that invoice or any other invoice.
The Purchaser agrees that timely payment is an essential condition of any contract with Insol® for the supply of products and services and that interest may be charged by Insol on overdue accounts at the rate of 2% per month, pro rated for any partial month.
If the Purchaser defaults in paying any invoice when due, the Purchaser undertakes to pay Insol®, on demand, all collection costs (including legal expenses) incidental to recovering payments of monies owing.
In the event that any money payable to Insol® becomes overdue or, in Insol’s opinion, the Purchaser will be unable to meet its payments as they fall due, or a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Purchaser or any asset of the Purchaser, then Insol shall be entitled to cancel all or any part of any order of the Purchaser which remains uncompleted in addition to and without prejudice to any other remedies; and all amounts owing to Insol shall, whether or not due for payment, immediately become due.
6. RETENTION OF TITLE; PURCHASE MONEY SECURITY INTEREST
Ownership in the products shall remain with Insol® and not pass to the Purchaser until the Purchaser has discharged all outstanding indebtedness to Insol whatsoever.
Insol® shall retain a purchase money security interest in all products sold and delivered to the Purchaser. Insol may perfect its security interest by registering one or more Financing Statements pursuant to the Personal Property Securities Act 1999, in respect to sales by Insol to the Purchaser. The Purchaser waives any right to receive verification of financing statements registered.
If the Purchaser fails to comply with the terms of payment of Insol®, then Insol, in addition to its rights and remedies under the Personal Property Securities Act 1999, shall be entitled to such other rights and remedies as may be available to it under either statutory or common law. Without limiting the generality of the foregoing, to the extent allowed by law, Insol, by itself, its servants or its agents, shall have the right to enter upon any premises occupied by the Purchaser or any other place where the products are situated and take possession of such products notwithstanding that fixtures or fittings may be attached thereto, and the Purchaser shall fully indemnify Insol in respect of any claim or demand which may be brought in respect of such entry upon such premises and taking of possession.
7. LIMITATION OF LIABILITY
Insol®’s liability for loss arising from any defect or non-compliance in relation to the products supplied is limited, at Insol’s option, to replacement of the products or a refund not exceeding the invoice value of the products.
Under no circumstance shall Insol® be liable for any incidental, special, indirect, consequential or punitive damages, including loss of profits, loss of revenues, loss of business, loss of operations, injury to reputation or loss of good will. Insol shall not be liable for death, personal injury or property damage resulting from, or relating to, use of the products.
If the Purchaser is buying the products for resale, the Purchaser accepts full responsibility for resolving any claims made by its customers and indemnifies Insol® against any such claims. The Purchaser’s sole recourse against Insol is pursuant to these terms and conditions.
The Purchaser shall strictly comply with any instructions for assembly, installation, use, care and maintenance, trouble shooting, warnings and safety procedures provided by Insol®. Where appropriate, the Purchaser shall pass any such instructions to its customers and end users and the Purchaser shall use its best endeavours to ensure that they comply with such instructions. Insol shall not be liable for any costs or damages incurred by any person because of such person’s failure to comply with such instructions.
Where Insol® gives technical advice, Insol does so to provide helpful suggestions only. Insol has not inquired, nor does it know, all of the Purchaser’s unique circumstances to make a professional judgement. The Purchaser shall use its own judgement and not rely upon Insol’s. The Purchaser accepts such technical advice entirely at its own risk. Insol is not liable for damage, loss or expense resulting from its failure to give advice or information or the giving of incorrect advice or information, whether or not due to Insol’s negligence or that of its employees, agents or sub-contractors.
The liability of Insol® under any circumstance shall not exceed the original purchase price paid by the Purchaser for the product or products giving rise to such liability.
8. LOCAL BODY APPROVAL
Unless there is a written agreement to the contrary, all prices quoted do not include the making of application by Insol® for local body approval and responsibility for obtaining such approval is entirely the Purchaser’s.
9. ASSEMBLY AND INSTALLATION
The Purchaser shall assemble and install the products in accordance with the instructions and manuals supplied by Insol® as well as in accordance with best assembly and installation practices.
The Purchaser accepts responsibility for ensuring that its employees, agents and customers are appropriately trained and experienced in the use of the products and have read any relevant information provided by Insol®.
The Purchaser accepts responsibility for ensuring that end users know how to use the products. The Purchaser shall discharge this responsibility through training sessions, hands-on demonstrations and technical support.
The Purchaser shall comply with any applicable Council requirements, building codes, standards, regulations and laws. Insol® shall not be liable for any claims whatsoever, whether in tort (including negligence), contract or otherwise, resulting directly or indirectly from the Purchaser’s failure to comply with any product manuals or other documentation supplied by Insol and any applicable Council requirements, building codes, standards, regulations and laws.
10. FITNESS FOR PURPOSE
The Purchaser is responsible for determining whether the products are suitable for the purpose intended and within their structural limitations. The Purchaser is responsible for measuring up the site and ensuring that the products conform to relevant site specifications.
Proper selection of a specific product for a specific application and site is the Purchaser’s responsibility. The Purchaser must assume the ultimate responsibility for the proper sizing, selection, compatibility, assembly, installation and operation of Insol® products.
All products are sold subject to Insol®’s standard limited warranty. A copy of such warranty is available from Insol upon request. Insol makes no other warranties, whether expressed or implied, including any warranty that the products are suitable for any intended use.
If the Purchaser is purchasing products and services for business purposes, then the statutory guarantees of the Consumer Guarantees Act shall not apply.
12. SPECIFICATIONS AND PLANS
All specifications and plans provided by Insol® are as accurate as possible. Insol reserves the right to change the specifications and plans.
As part of an ongoing programme to upgrade its products, Insol® reserves the right to alter the drawings, specifications, designs, materials, components or construction of its products. Insol may do so without notifying the Purchaser. Any such alterations shall not impose upon Insol an obligation to alter products already delivered to the Purchaser.
All dimensions and specifications provided to the Purchaser are estimates only. Unless otherwise provided in the Contract, it is not a condition of the Contract that the products will correspond precisely with such dimensions and specifications and reasonable and customary tolerances shall be allowed.
13. INTELLECTUAL PROPERTY
As used in this clause, “Intellectual Property” means Insol®’s proprietary rights in the products, including, without limitation, its brands, manuals, plans, layouts, drawings, designs, specifications (including all measurements and dimensions), technical information, other documentation and company literature.
The sale of products does not include the sale of relevant Intellectual Property and Insol® shall retain ownership of such Intellectual Property. The Purchaser shall not copy Insol’s Intellectual Property or use such Intellectual Property in a manner that is prejudicial to the commercial interests of Insol.
No failure by Insol® to insist upon strict performance of any of these terms and conditions, or delay in exercising any of its rights or remedies, shall constitute a waiver or variation of these terms and conditions or a waiver of any such right or remedy.