1.1. These Conditions apply to the supply of all products and all quotations given by Rheem.
Where commencing with a capital the following words have the following definitions:
1.2.1. Conditions mean these Conditions of Sale.
1.2.2. Guarantor means any guarantor of the purchaser’s obligations as named on Rheem’s quotation or credit contract with the Purchaser.
1.2.3. FJA means the Foreign Judgments Act 1991 (Cth).
1.2.4. New York Convention means the Convention of the Recognition and Enforcement of Foreign Arbitral Awards.
1.2.5. Rheem means individually or collectively (as the case may be) Rheem Australia Pty Ltd ABN 21 098 823 511, Accent Air Pty Ltd ABN 28 062 383 224, Solahart Industries Pty Limited ABN 45 064 945 848, Raypak Australia Pty Limited ABN 65 078 743 414, AquaMax Pty Ltd ABN 37 138 189 689.
1.2.6. UNCITRAL means the United Nations Commission on International Trade Law Arbitration Rules.
1.3. In the event of any inconsistency between these Conditions and those which may be included in, or implied by, any document forming part of a purchaser enquiry, specification, order or contract, these Conditions shall prevail.
1.4. No terms, provisions or conditions at variance with these conditions shall be effective in any way unless specifically confirmed in writing by Rheem.
1.5. Rheem shall not incur any liability, nor shall any right accrue to the purchaser by reason of any conduct, statement or representation not confirmed by Rheem in writing nor in respect of any clerical, printing or typographical errors.
2. Prices and Quotations
2.1. Prices and price lists are subject to change without notice. All goods will be invoiced at prices determined by Rheem at the date of despatch.
2.2. Within the capital cities charges will be made for deliveries by Rheem to domestic premises or construction sites at rates notified by Rheem from time to time.
2.3. Outside capital cities, deliveries by Rheem from transport terminals, wharf or rail in the nearest capital city is to the purchaser's account.
2.4. Taxes and duties of all kinds will be borne by the purchaser unless exemption certificates are provided with orders in accordance with the relevant legislation or regulation.
2.5. Unless otherwise stated prices are exclusive of goods and services tax and the purchaser must pay an amount equal to the goods and services tax referrable to the supply of the goods and services.
2.6. Unless previously withdrawn, written quotations are valid for thirty (30) days from date of quotation and thereafter are subject to confirmation in writing by Rheem before acceptance.
2.7. Product materials and specifications are subject to change without notice.
3.1. Terms of payment are strictly net (30) days from end of month.
3.2. Rheem reserves the right to vary the terms of payment for whatever reason, or to require payment in full prior to delivery.
3.3. If payments are not made within seven (7) days of the due date, Rheem reserves the right to charge interest at the ruling Government Bank Bill Rate + 2% on the amount outstanding, calculated from the due date of payment until payment is received in full.
4.1. Whilst Rheem will use its best endeavours to ensure delivery by the date requested, it does not guarantee delivery on that date and will not be liable for any damages, costs or charges howsoever incurred by purchasers due to late delivery ensuing from any circumstances whatever, either within or beyond the control of Rheem.
4.2. Risk in goods passes to the purchaser when the goods are either delivered to the purchaser, or collected by the purchaser’s carrier or delivered to the transport terminals, wharf, rail.
4.3. Rheem is not obliged to insure goods in transit.
5. Legal Title and Risk
5.1. The goods remain Rheem’s property until the purchaser has paid all sums owing under this or any other contract.
5.2. Until full payment has been received from the purchaser, the purchaser must hold the goods as fiduciary bailee for Rheem and separately store the goods so that it is clearly shown as being Rheem’s property.
5.3. As security for payment, the purchaser (and where applicable each Guarantor) agree to grant Rheem a Security Interest (as defined in the Personal Property Securities Act 2009 (Cth) (PPSA) in the outstanding payments and all after acquired property and an irrevocable right to register this interest against it or its property (as the case may be) on the Personal Property Securities Register established under Chapter 5 of the PPSA (Register) including (without limitation) where applicable, as a purchase money security interest. The purchaser grants Rheem an irrevocable right to search the Register from time to time in relation to it or its property. The purchaser agrees for the purposes of the PPSA and to the extent permitted by law, Sections 95, 121(4) 128, 129, 130, 132(3)(d), 132(4), 135 and 143 of the PPSA have no application to these arrangements and Rheem is not required to give notice under section 135 of the PPSA. If Rheem receives any notice in relation to the purchaser under section 64 of the PPSA, all outstanding payments will become immediately due and payable. The purchaser agree to pass such resolutions, execute and sign any documents or forms, as required from time to time to formalise, affirm or perfect the said Security Interest.
5.4. Notwithstanding the provisions of this clause 5:
5.4.1. the purchaser may sell and deliver goods to a third party in the ordinary course of the purchaser's business;
5.4.2. the proceeds of any such sale of the goods must be held by the purchaser in trust for Rheem.
6. Holding Out
Purchasers are not permitted to use any trademarks, service marks, insignia, logos, patents, designs, copyright materials, trade secrets, and other intellectual and industrial property of all kinds belonging to Rheem, nor to promote themselves as being connected in any way with Rheem except with the prior written authorisation of Rheem which may be withdrawn at any time.
7. Claims and Returns
7.1. Any claims on Rheem for returns due to delivery errors, or any other reason must be made in writing within fourteen (14) days of the goods being despatched by Rheem.
7.2. Approval for all returns must be received in writing from Rheem. Freight costs of returns will be paid by the purchaser's or a pick up charge will be made by Rheem for the approved collection of goods ordered incorrectly by purchasers.
7.3. All approved returns must be accompanied by a credit claim quoting invoice numbers and dates and reason for return including the name of the Rheem representative who approved the return.
7.4. The condition of all returns will be examined by Rheem prior to crediting. Where claims are not justified or product is returned without authorisation from Rheem, product will be returned to the purchaser at the purchaser’s expense.
7.5. A 15% restocking charge applies to the replacement of all approved returns of incorrectly ordered goods.
7.6. Rheem will not accept responsibility for loss or damage to goods either after collection by purchaser’s carriers from approved Rheem warehouses, or where in transit between transport terminals, wharf or rail in regional centres and purchaser’s premises.
7.7. No claim will be accepted for delivery of goods with an incorrect element rating or gas type as these must be specified when ordering.
7.8. No claim for return will be recognised after the goods have been installed.
Rheem provides an Australia-wide service network through its own service department in the capital cities (excluding Hobart), backed up by independent country service agents.
9.1. If any products or services supplied pursuant to these Conditions are supplied for personal, domestic or household uses as goods or services to the purchaser as a “consumer” within the meaning of that term in the Australian Consumer Law as amended or relevant state legislation then the consumer will have the benefit of certain non-excludable rights and remedies in respect of the products and nothing in these Conditions excludes or restricts or modifies any condition, warranty, right or remedy which pursuant to the Australian Consumer Law or similar legislation is so conferred.
9.2. If any product or service is a product or service NOT supplied for personal, domestic or household use as goods or services to the purchaser as a “consumer” within the meaning of that term as indicated in clause 9.1 above, then to the extent permitted at law, Rheem will not be liable to the purchaser or any third party for liquidated damages in any form, any delay costs, consequential loss including (without limitation) any loss of profits, loss of revenue, loss of production, loss of business opportunity, loss of goodwill, loss of business reputation, economic loss or any indirect, remote and/or unforeseeable loss. Rheem’s aggregate liability in damages (however arising) in respect of any act or omission in connection with its obligations under these Conditions will not exceed the amount of one hundred dollars (AUD$100), even if Rheem has been advised by the purchaser as to the possibility of such loss being incurred. To the extent that Rheem cannot exclude liability for breach of any condition or warranty, Rheem’s liability is limited to (at Rheem’s option):
9.2.1. The replacement of those goods or the supply or equivalent goods;
9.2.2. The repair of those goods; or
9.2.3. Payment in lieu of repair or replacement.
10. Consumer Law
10.1. Rheem’s goods come with guarantees that cannot be excluded under the Australian Consumer Law. The purchaser is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The purchaser is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. The term “major failure” has a defined meaning under the Australian Consumer Law.
10.2. No additional express warranty for defects or otherwise are provided for Rheem’s products. Consumers may rely upon their statutory rights and remedies under the Australian Consumer Law.
11.1. Rheem collects personal information from purchasers to enable Rheem to assess and process the purchaser’s application for a trading account and to provide goods and other services to the purchaser.
11.2. Rheem may need to contact other people and organisations, such as credit reference agencies or referees to collect information about the purchaser. Rheem may also disclose the purchaser’s personal information to relevant Rheem staff and agents, contractors and third party suppliers engaged by Rheem to deliver services.
11.3. Rheem relies on the purchaser to ensure that the personal information provided to Rheem is current and accurate. The purchaser may find out what personal information Rheem holds about them and, where necessary, may correct any errors in this information (some restrictions and costs may apply).
11.4. Where the purchaser provides personal information to Rheem concerning other individuals, the purchaser represents and warrants to Rheem that the information has been provided with the agreement of those persons and that Rheem is authorised by them to use it. Rheem may also use personal information provided to it to keep the purchaser informed about our products and services.
11.5. The purchaser consents to Rheem collecting, using and disclosing the personal information provided to Rheem on the terms outlined above.
These conditions shall be construed according to the laws of the State or Territory in which Rheem quoted or accepted the order as the case may be, and the parties hereby submit to the jurisdiction of the courts of that State and the Commonwealth of Australia.
13. Contracts with Purchaser outside of Australia
13.1. This clause 13 will only apply where the purchaser is based outside of Australia and does not have a presence in Australia.
13.2. If the purchaser is located outside of Australia and is located in a country to which the FJA applies, the purchaser acknowledges that Rheem can enforce any order of any Australian Court granted in favour of Rheem and against the purchaser pursuant to the FJA.
13.3. If the purchaser is not located in a country to which the FJA applies, but the purchaser is located in a “Contracting State” as defined by the New York Convention then any dispute or difference whatsoever arising out of or in connection with these Conditions must be submitted to arbitration in accordance with, and subject to, the UNCITRAL. The appointing and administering body shall be The Institute of Arbitrators and Mediators Australia or its replacement. There must be one arbitrator, the language of the arbitration must be English, the place of the arbitration must be Sydney, Australia.
13.4. The purchaser agrees to be bound by the arbitration and to submit to the UNCITRAL.
Terms and Conditions of Sale uploaded Tuesday 9th May, 2017.