Terms and Conditions

Standard Terms & Conditions of Sale

1 DEFINITIONS

1.1 "Customer" means the person, firm or corporation to which Merriman Controls supplies goods upon request.

1.2 "Goods" means the articles, goods, merchandise and/or materials or services supplied by Merriman Controls to the Customer.

2 INCORPORATION OF TERMS

2.1 All quotations or submissions given and orders accepted for goods by Merriman Controls are given or accepted subject to these terms and conditions.

2.2 There shall be no variation to these Terms and Conditions unless specifically agreed to in writing by Merriman Controls.

2.3 Sales of Goods by Merriman Controls are made on the specific condition that the customer is aware of the Terms and Conditions of sale.

2.4 Any terms or conditions included in the Customer’s order are expressly excluded in favour of these Terms and Conditions of sale.

2.5 For goods sold outside of Australia, the terms and conditions of sale are excluded from the Vienna Convention for the International Sale of Goods.

3 QUOTATION AND SUBMISSIONS

3.1 No quotation or submission by Merriman Controls shall constitute a contractual offer.

4 PRICES

4.1 Prices for Goods quoted in published price lists or by representatives of Merriman Controls are subject to change without notice and are not binding on Merriman Controls. Merriman Controls reserves the right to increase prices to take account of cost escalation between the time of order and delivery. All Goods are sold at the applicable ruling price at the date of dispatch but where the price of Goods increases between the time of order and time of delivery the Customer shall be entitled to cancel the order upon returning the goods to Merriman Controls in an undamaged condition.

4.2 Freight charges will be applied unless otherwise agreed in writing. Delivery surcharges will apply in the following situations:

a) Same day courier or express delivery

b) Special conditions specified by customer

c) Loading or unloading times at the customer’s designated site exceeding the allowed one hour period for a full truckload.

d) The cost of additional equipment required for the purpose of loading and unloading at the Customer’s designated site.

4.3 Prices quoted or published on official price lists do not include sales tax, a goods and services tax or other imposts (refer clause 5 IMPOSTS)

4.4 Prices are subject to Customer’s order being for the whole quantity mentioned in the quotation unless otherwise negotiated.

4.5 Where goods are imported, prices are based on existing rates of freight, exchange, insurance, customs and other duties. Any increase in such rates between time of quotation and time of payment will be to the Customers account.

5 IMPOSTS (Taxes)

5.1 IMPOST means any royalty, tax (including sales tax or a goods and services tax), duty, excise, levy, fee, rate or charge imposed by any governmental, semi governmental or other body authorised by law which is imposed on or in resect of or in relation to:

⋅ The provision, sale, purchase, acquisition, rental or supply of pipe, tubing, pipe fittings, equipment or other goods: or

⋅ The provision, supply or performance of any services, or any other thing done or performed by Merriman Controls.

5.2 Prices charged will be increased by the amount of any impost. In relation to a goods and services tax (GST), any amounts stated in price lists, quotations or other correspondence, or charged will be increased by such amount as is necessary to ensure that the amount stated or charged net of GST is the same as it would have been prior to the imposition of a GST.

5.3 It is the Customer’s responsibility to ensure that where a sales tax or other impost exemption is claimed, such claim is supported IN WRITING by the quotation of a tax exemption number or notice of exemption in the prescribed format.

5.4 Should doubt exist as to the validity of a claimed exemption Merriman Controls reserves the right to charge the tax or levy.

6 PAYMENT TERMS

6.1 Unless otherwise agreed, all sums owing to Merriman Controls are due for payment in Australia dollars within thirty (30) days from invoice date and the Customer will have no right of set-off in respect of a claim against Merriman Controls.

6.2 Merriman Controls reserves the right to apply a daily account charge of 2% per annum above the Westpac Banking Corporation Base rate (as at the due date)from the due date for payment until actual date of payment to all balances not paid within the required thirty (30) days. No settlement discounts are offered or allowed unless specifically confirmed in writing.

6.3 If it is agreed to use a letter of credit as a means of payment, the letter of credit shall be a confirmed irrevocable letter of credit in favour of Merriman Controls. The letter of credit must cover the total price of the goods and confirmation must be given to Merriman Controls’ Australian bank. The letter of credit shall be subject to the “Uniform Customs and Practice for Documentary Credits, 1993 Revision, ICC Publication no 400”

6.4 All legal and other costs incurred by Merriman Controls due to non payment by the Customer, including fees paid to third parties employed by Merriman Controls to pursue the debt, shall be for the Customer’s account.

6.5 Merriman Controls shall be entitled before delivery or continuing delivery to stipulate that sufficient security for the fulfilment of the payment obligations is provided or payment is made in advance by Customer.

6.6 Merriman Controls reserves the right to immediately cancel any order or suspend any delivery without incurring any liability to the Customer if the Customer is overdue with any payment, enters into bankruptcy, a composition with its creditors, an administrator, liquidator or provisional liquidator is appointed in respect with the customer.

6.7 Merriman Controls reserves the right to suspend any delivery without incurring any liability to the Customer upon becoming aware of any factors which in the opinion of Merriman Controls affect the Customer’s financial stability. Resumption of deliveries will depend on the Customer being able to satisfy Merriman Controls that it has the capacity to pay its debts as they fall due.

7 RETENTION OF TITLE

7.1 Title in the Goods shall be retained by Merriman Controls until it receives payment in full for the Goods. Until title in the Goods passes to the Customer the Customer shall keep the Goods as a bailee for Merriman Controls and if required shall store the Goods in a manner that clearly shows the ownership of Merriman Controls.

7.2 In situations where the products are used in some construction process or incorporated into another product, the customer will hold that part of the process of sale in trust for Merriman Controls. The part would be an amount equal in dollar terms to the amount owing by the customer by Merriman Controls.

7.3 The Customer may sell the goods as Merriman Controls’ bailee to a third party subject to the Customer accounting to Merriman Controls in accordance wit the parties’ fiduciary relationship. Proceeds of sale should be paid into a separate bank account with separate records being maintained Where the Customer delivers the Goods to a third party and is not paid by the third party the Customer may, at the option of Merriman Controls, assign its claim against the party to Merriman Controls upon Merriman Controls giving the Customer notice in writing to that effect.

7.4 If any amount due by the Customer to Merriman Controls under the terms of this agreement remains unpaid after thirty (30) days from invoice, and Merriman Controls has not expressly agreed to an extension of time for its payment or having regard to such extension the charge or amount or any part thereof still remains unpaid or if the Customer becomes insolvent or commits an act of bankruptcy or makes an assignment for the benefit of its creditors or if the Customer, being a Company, is placed under official management or into liquidation or a receiver or receiver and manager shall be appointed in respect of any of its assets, then Merriman Controls may take possession of the Goods wherever they are located from the Customer’s premises for that purpose without any Court action or other process of law and may furthermore recover the costs of such repossession from the Customer as a debt due under this agreement in addition to all other merits rightfully due to it hereunder PROVIDED HOWEVER that nothing in this Clause or any action taken hereunder shall operate to relieve the Customer of any obligation or liability incurred under this agreement and still existing at the date of such repossession or to restrict or to prejudice any right or remedy available to Merriman Controls from the same date.

7.5 The customer shall effect and maintain at all times adequate insurance against all risks for which it is liable to Merriman Controls under these Terms and Conditions of Sale and ensure that the insurer holds Merriman Controls covered for its interest under such insurance Such insurance shall be at the customer’s cost and Merriman Controls may require the customer to produce evidence of compliance with this clause at any time before and/or after delivery.

8 AVAILABLITY AND DELIVERY

8.1 The Customer shall place orders for goods in multiples of standard lengths or quantities. Whilst every reasonable endeavour will be made to deliver the quantity ordered, Merriman Controls reserves the right to deliver within a + or – 5% margin to the ordered quantity. Unless otherwise agreed delivery of ex-stock items will not be effected within forty-eight (48) hours from receipt of order. Merriman Controls does not guarantee ex-stock availability of goods and orders are accepted subject to the prior sale of the required goods. Merriman Controls shall not be liable for any loss or damage arising as a result of nonavailability of goods.

8.2 Depending on availability, Merriman Controls will use its reasonable endeavours to meet a Customer’s requested delivery date. However, Merriman Controls shall not be liable to the customer for any loss or damage (including consequential loss) caused by any delay or failure to deliver any goods due to any cause or circumstances beyond its reasonable controls. In the event of any delay in delivery as aforesaid, the delivery date may be deferred for a period at least equal to the time lost by reason of the intervening cause or circumstance.

8.3 It is the Customer’s responsibility to ensure adequate equipment is on hand to unload the transport vehicle in a safe and efficient manner. If in the opinion of the transport driver, conditions are not adequate to ensure the safety of all concerned in the unloading operation, the goods will be returned to Merriman Controls at the customer’s expense.

9 FORCE MAJEURE

9.1 Merriman Controls will use its reasonable endeavours to full fill any contract based on quotations given, but the due performance is subject to variation or cancellation owning to Acts of God, War, Strikes Lockouts, Fire, Flood, Drought or any other cause beyond the controls of Merriman Controls.

10 CLAIMS

10.1 It is the customer’s responsibility to inspect all goods promptly upon delivery. Merriman Controls shall not be liable for short delivery; delivery of incorrect goods; damaged goods or non-delivery of goods unless the customer submits a written claim to Merriman Controls within seven (7) working days of the delivery to which the claim relates.

10.2 Where goods are delivered by Carriers appointed by Merriman Controls the customer must also notify the carrier in accordance with the carrier’s conditions of carriage.

10.3 Merriman Controls shall not recognise claims for incorrect application or use of goods. The responsibility to verify that the goods have or will be used in the correct application rests with the customer.

11 CANCELLATION AND RETURNS

11.1 Goods may not be returned more than one (1) month after the date of the applicable invoice.

11.2 The Customer may return for credit (against subsequent orders) goods of current standing provided the following conditions are met:

⋅ Merriman Controls’ written approval has first been obtained and a goods return approval number issued.

⋅ The goods are returned in original condition & packaging in an unmarked condition. Suitable for sale as new.

⋅ The customer agrees to pay, all freight charges & if required by Merriman Controls, a restocking and/or handling charge which shall be charged to the Customer’s account at a rate of no less than thirty per cent (30%) of the original price for the goods.

11.3 The following goods will not be accepted for return

⋅ Special purpose and fabricated fittings and control & automation products designed or manufactured or bought-in or imported to satisfy a customer’s requirements.

⋅ Other items which are not part of the Merriman Controls standard inventory range.

11.4 The customer shall not be relieved of any obligation to accept or pay for the goods by reason of any delay or cancellation of the goods in transit.

12 GUARANTEE BY CUSTOMER

12.1 The customer in ordering specific goods from Merriman Controls guarantees that in manufacturing such goods Merriman Controls will not be liable for any infringement of letters of patent, trade marks, registered designs, copyright or any other registered or unregistered intellectual property.

13 WARRANTY

13.1 The liability of Merriman Controls is limited in all circumstances to:

In the case of goods proved under proper care and use to be of faulty manufacture, any one of the following:-

⋅ The replacement of the goods or supply of equivalent goods

⋅ The repair of the goods.

⋅ The manufacturer of the goods will be the sole judge of the cause of failure. In all disputes the manufacturer’s decision is final.

⋅ The warranty period will not exceed 3 months from the date of original invoice, unless a longer term is agreed to, in writing, by Merriman Controls prior to the original supply.

13.2 To the extent permitted by law, Merriman Controls is not bound by any other warranty (express or implied), clause or statement whatsoever by whomsoever made unless the same is set out herein All liability in contract, tort or arising under any legislation or otherwise or any consequential loss, injury damage or expense whatsoever is

13.3 Unless full specifications and application details are made available to Merriman Controls, the customer acknowledges and agrees that Merriman Controls does not warrant that the goods supplied against the customer’s written or verbal order will be fit for the purpose for which they are used. It is the Customer’s responsibility at all times to seek expert advice to ensure the goods selected are fit for purpose.

13.4 Merriman Controls warrants that goods manufactured by it and branded with the applicable Australian or international quality standard to which they were produced will conform with those standards.

13.5 Merriman Controls manufactured goods that are not branded with an Australian or international quality standard are not warranted unless specified in writing to the customer.

13.6 Merriman Controls will not be liable for any claims resulting from using the goods in any manner where manufacturer’s specifications or recommendations are exceeded.

14 JURDISDICTION

14.1 This agreement shall be governed by the laws of the State of New South Wales.