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Terms & Conditions
KSM Australia Pty Ltd, Trading as KSM Solutions Pty Ltd
” Agreement ” means the agreement for supply of Equipment and/or Services between KSM Australia and the Customer of which these terms and conditions form part.
“Charges” includes all monies payable by the Customer to KSM Australia in relation to Services and/or the supply and (any) Implementation of Equipment.
“Implementation’ means installation and preparation of the Equipment for operation by the Customer in accordance with the Manufacturers specifications.
KSM means KSM Australia limited and its agents. “Customer” includes the customer its agents and assigns.
“Equipment” includes parts and supplies, which may be supplied under any warranty given in relation to the Equipment. “Manufacturer” means the Manufacturer of the Equipment or any part thereof, its agents and assigns.
“Persons” includes corporations, partnerships and unincorporated associations.
“Quotation” means a written document issued by KSM Australia, which sets out the terms, in addition to these terms and conditions, upon which KSM Australia may sell the Equipment and/or Services to the Customer.
Words importing the singular number shall include the plural and visa versa.
2.1 These terms and conditions are varied only where such variation is in writing and signed by a Director, the Company Secretary or the General Manager of KSM.
2.2 Where the Customer has agreed to purchase Equipment and/or Services from KSM upon these terms are conditions they shall be incorporated into every subsequent agreement for purchase of Equipment and/or Services by that Customer from KSM unless specifically varied or excluded in the manner prescribed in clause 2.1.
3. Entry into Agreement
3.1 No brochure, catalogue, price list, Quotation or other communication published or forwarded by KSM to the Customer, whether writing or not shall constitute anything other than an invitation by KSM to the Customer to do business.
3.2 Any purchase order placed by the Customer with KSM constitutes an offer to purchase Equipment and/or Services. Notwithstanding any prior communication between KSM and the Customer, there shall be no obligation by KSM to accept an offer to purchase Equipment and/or Services made by a Customer. The Customer’s offer is only accepted by KSM issuing a confirmation of order to the Customer or by delivery of the Equipment and/or Services,
3.3 Any terms contained in a purchase order placed by the Customer with KSM in response to a Quotation do not form part of the Agreement unless subsequently accepted in writing by KSM.
4. Functionality and Performance
4.1 All information, specifications or other data provided by KSM in relation to the Equipment will be approximations only and small deviations or slight variations from them which do not substantially affect the functionality of the Equipment will not entitle the Customer either to reject the Equipment upon delivery or make any claim in respect of them.
4.2 Information contained in user manuals or otherwise provided by KSM (including information provided as part of any training) in relation to the performance or characteristics of the Equipment represents only a guide to the performance of the Equipment under optimum operating conditions. Factors, which may affect performance of the Equipment, may be obtained from KSM on request.
4.3 KSM may at its sole discretion provide the Customer with training in relation to the Equipment at such additional costs as agreed between the parties. Subject to clause 9. 1, KSM gives no representation or warranty as to such training.
5.1 The Customer shall pay to KSM all Charges immediately when due without reduction or deferment on account of any claim, counterclaim or set-off.
5.2 The Customer acknowledges that (unless specified in the Quotation) the cost of transportation. Freight, Implementation, insurance and other expenses are not included in the Charges and the Customer shall pay a reasonable additional fee for such costs. All taxes, duties and other statutory levies in relation to the Agreement shall (unless otherwise agreed in writing) be paid by the Customer.
5.3 Should the Customer fail to pay any amount when due to KSM, the Customer shall be liable to pay to KSM without demand interest thereon at the rate of 2% above the Commonwealth Banking Corporation’s corporate loan overdraft rate from time to time or other comparable rate notified by KSM to the Customer. Interest payable hereunder shall be compounded monthly and shall be calculated on a daily basis from the due date of payment to the date upon which payment is actually made.
5.4 Notwithstanding anything else in the Agreement, all Charges shall immediately become due if the, Customer fails to make any payment when due, becomes subject to bankruptcy laws, enters into any composition with its creditors, enters into any liquidation or has an administrator or a receiver and manager appointed to it or to all or part of its assets.
5.5 Unless the Agreement specifies that the Charges are fixed and not subject to exchange variation, if, after the date of the Agreement, there is a variation in the cost to KSM of the Equipment by reason of a variation in the exchange rate between the currency in which KSM has to pay the Manufacturer and the Australian currency which, when applied to so much of the Charges which relate to the sale of the Equipment, gives rise to an increase or decrease of five (5) per cent or move of those Charges, then those Charges will be increased by the amount of any such increase or decrease by any such decrease.
5.6 Where payment of the Charges or part of the Charges is due prior to delivery of the Equipment and where a, Customer fails to make such payment, KSM may withhold delivery and give the customer a notice requiring payment within (not less than) 7 days. Should the customer fail to make the payment which is due within the time required by the notice, then the Customer will be liable to pay KSM a cancellation fee, which is agreed as an amount to cover the manufacturer’s restocking charges and the other costs incurred by KSM, equal to (50) per cent of so much of the Charges which relate to the sale of the Equipment.
5.7 Unless specified elsewhere in the agreement, if the Charges exceed $20,000 the customer shall pay 30% of the Charges on confirmation of the order, 30% on delivery of the equipment by KSM and the balance on implementation (if any) or when KSM notifies the Customer that the equipment is ready for use, or under the normal payment terms agreed in writing with KSM.
6. Property of Equipment Purchased
6.1 No legal or equitable title to the equipment shall pass to the Customer until payment in full has been made by the Customer of all Charges for:
- all Equipment and/or Services the subject of the Agreement; and
- all Equipment and/or Services previously supplied by KSM to the Customer
6.2 Subject to the clause 6.4, until the legal and equitable title to the equipment passes to the customer, the customer shall;
- hold the Equipment as bailee of KSM returnable at will:
- store the Equipment in such a manner as enables the equipment to be readily identified and distinguished from all other equipment held by the customer and, where such Equipment includes Equipment previously supplied by KSM to the Customer and in respect of which title has passed to the Customer, then the Customer shall attach to the Equipment in respect of which title has not passed a notice indicating that the equipment is held as bailee for KSM;
- upon demand by KSM immediately deliver up the equipment to KSM; and
- authorise, and the customer does hereby authorise, KSM to enter upon the premises upon which the equipment is stored for the purpose of taking possession of it.
6.3 The Customer shall be liable for any damage arising from or in connection with the recovery of possession of the Equipment by KSM.
6.4 Pending full title to the Equipment passing to the customer the customer will not purport to assign any right or interest therein to any other person other than by sale of the equipment in the usual course of business (upon which title will pass to the purchases).
7. Delivery & Risk
7.1 Unless otherwise agreed in writing, delivery of the Equipment will occur when the Equipment is placed at the disposal of the Customer at KSM’s premises and risk of loss or damage to the Equipment then passes to the customer. In these circumstances, KSM may agree to manage carriage of the Equipment for the Customer, but it will do so as the agent of the customer and the delivery will occur and risk will pass when the equipment is placed at the disposal of the carrier. The customer shall pay to KSM its Charges for carriage incurred upon the Customers behalf.
7.2 Delivery dates represent only an estimation of the date of delivery of the equipment and are not binding on KSM. Nothing in the Quotation shall be construed as making time of the essence in the Agreement unless it is expressly stated to be so.
7.3 KSM reserves the right to deliver the Equipment by installaments and to invoice the Customer for each instalment of Equipment delivered where, in the opinion of KSM, it is reasonable to do so.
7.4 Failure by the Customer to pay for any Charges when due shall entitle KSM to with hold or delay delivery of any remaining Equipment and/or Services.
7.5 If KSM determines that it is or may be unable to deliver the Equipment within a reasonable time or at all, KSM may at its sole discretion terminate the agreement. In the event of termination, the customer shall have no claim against KSM for any damage, loss or expense whatsoever.
7.6 If KSM is unable to effect delivery due to the fault of the Customer, KSM may store the Equipment and charge the Customer for all costs and expenses associated with such storage and delayed delivery.
7.7 The Customer shall allow KSM access to its premises and shall provide all reasonable assistance in relation to any implementation of equipment.
8. Warranty & Returns Policy
8.1 Save for the warranties outlined in clauses 8.1 and 8.2 no other warranties are expressly given by KSM.
8.2 KSM warrants all Equipment and parts for a period of (12) months from delivery of the Equipment, supplied under this Agreement KSM warrants all Equipment and parts for a period of (1) years, on the following terms:
- the warranty shall only apply if KSM receives notice of a claim before the expiry of the twelve (12) month period;
- the warranty covers component failure, defective material and production defects only;
- KSM’s liability under the warranty shall only be to repair or replace the Equipment:
- the customer may only claim on the warranty if it complies with all the terms set out in the Agreement and any other reasonable requirements of KSM;
- the Customer may not rely on the warranty if any loss or damage of the Equipment arises as a result of the Customers negligence or failure to use or maintain the Equipment in accordance with the Manufacturers recommendations; and
- the Customer shall be solely responsible for the delivery of the Equipment to and from KSM’s nominated premises.
- Product refund: No refund will be provided for items returns outside of warranty or incorrectly ordered unless agreed in writing by KSM. The cost of return of the items purchased is at customer expense. If KSM is unable to repair or replace the product under the terms of the warranty, KSM will provide a refund to the value of the product at the original purchase price pro rata to the warranty period remaining.
9. Implied Terms and Limitation of Liability
9.1 Where conditions, warranties or other rights given in respect of the Agreement under the Trade Practices Act 1974 or any other laws there are, to the extent permitted by such laws, excluded from the Agreement. Where such implied conditions, warranties or other rights are not able to be excluded, KSM’s liability for a breach of any of them, if and to the extent permitted by such laws, and subject to any qualifications appearing in such laws, shall be limited to:
- in the case of goods supplied, to any one or more of the following (as KSM may determine);
- in the case of goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the costs of the replacing the goods or of acquiring equivalent goods, or
- the payment of the cost of having the goods repaired; and
- in the case of services supplied, to one of the following (as KSM may determine)
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
9.2 Except in the case of any claim for damages arising from the death of, or injury to, any person, caused by any wilful or negligent act or omission of KSM or its employees or agents, KSM’s entire and only liability in respect of any and all causes of action (in negligence of otherwise) arising out of or in connection with the Equipment, this Agreement, or any act or omission of KSM shall be limited as set out in clauses 9.1 (a) and (b).
9.3 Subject to clause 9.1 and 9.2, KSM shall not be liable for any indirect consequential or economic loss, howsoever arising (in negligence or otherwise), in relation to or otherwise in connection with the Equipment, any data stored on it (including loss of data), this Agreement or any act or omission of KSM.
10. Software Programs
10.1 The Customer acknowledges and accepts that KSM gives no warranties in relation to the software programs supplied by the Manufacturer with the Equipment or pre-loaded onto the Equipment and that the licences for all software programs supplied with the Equipment shall be between the end user (being the Customer) and the Manufacturer.
10.2Subject to clause 9.1, the Customer acknowledges that it shall not be entitled to make any claim, of any type, including a claim in relation to the performance of the software programs, against KSM unless KSM is the Manufacturer (and in which event clauses 9.2 and 9.3 shall apply).
1.1.1 In addition to the express rights of termination provided above, KSM may terminate the Agreement upon the occurrence of any of the following:
(a) failure by the Customer to perform any obligations in the Agreement where such failure is not rectified within 30 days of notice from KSM requesting rectification,
(b) a receiver or receiver and manager of the Customer’s assets, income or business or any part thereof or an administrator, liquidator or provisional liquidator of the Customer is appointed or a mortgagee goes into possession thereof and such appointment is not terminated or such possession does not cease within fourteen days;
(c) the Customer fails to pay its debts as they fall due or ceases or threatens to cease to carry on business, or sells, assigns or transfers the whole or part of its undertaking or assets otherwise in the ordinary course of business,
(d) the Customer purports to assign its rights under the Agreement;
(c) any event occurs outside the reasonable control of KSM which in KSM’s estimate makes it impractical when possible for it to fulfil its obligations under the Agreement; or
(f) the Customer breaches another agreement with KSM.
12. Force Majeure
12.1 KSM will not be liable for any loss or damage suffered by the Customer due to any delay or any breach or default under the Agreement in circumstances where such delay, breach or default results form causes beyond KSM’s reasonable control including but not limited to any breach of default under the Agreement by the Customer, compliance with any laws, regulations. orders, acts, instructions or priority requests of governments, acts of god. fires, floods, weather, strikes, lockouts, factory shut down or embargoes, wars, riots, delay or shortage in transportation or inability to obtain labour, manufacturing materials or other materials from KSM’s or the Manufacturer’s usual sources.
12.2 Any delay resulting from such cause as set out in clause 12.1 shall immediately extend the date for performance by KSM of any obligations under the Agreement by the period of delay.
The customer shall keep confidential all information disclosed by KSM and which is noted to be confidential, together with all information relating to the Equipment and/or Services including but not limited to any drawings and manuals which by their nature may be considered confidential.
14.1 Any indulgence, latitude or extension of time which KSM may show towards the Customer in relation to any of the provisions of the Agreement or any matter or thing relating to or arising from it shall not in any way prejudice or interfere with KSM’s rights under the Agreement and shall not be claimed to constitute a waiver of them.
14.2 Any notice to be given by a party shall be in writing and shall be sent by post or facsimile to the address of that party as shown in the Quotation or as subsequently notified by the party to that party giving the notice and shall be deemed to have been given a time it would have been received in the normal course of post if forwarded by post or, if otherwise given, at the time it was actually received.
14.3 This Agreement shall be governed by the laws of New South Wales and the parties agreed to submit to the jurisdiction of the courts of that State.
15. Acceptance of KSM Australia Terms & Conditions
Note: All orders acknowledged and placed online automatically accept KSM Terms & Conditions.
KSM AUSTRALIA PTY LTD,
ACCOUNTS ADMINISTRATION, Suite 18, 12 Tryon Rd, Lindfield, NSW 2070