Terms and Conditions of Business

These Terms and Conditions of Business cover all sales of Products and Services by NanoTechnology Solutions Pty Ltd (ABN 91 676 471 702) (“NTS”) in Australia and New Zealand.

1. Binding agreement

1.1 All purchases of Products and Services by the Buyer from NTS are made under the accompanying NTS quote and these Terms and Conditions.

1.2 These Terms and Conditions, the NTS quote and the NTS order acknowledgement form the entire agreement between the Buyer and NTS. If they conflict, these Terms and Conditions prevail. Nothing in this clause excludes liability for misleading or deceptive conduct or any right the Buyer has under the Australian Consumer Law.

1.3 These Terms and Conditions can be changed only by a written document signed by the Buyer and NTS. NTS may update its standard Terms and Conditions by written notice; updated terms apply only to quotes issued and orders accepted after the notice.

1.4 Any additional terms the Buyer wants to apply must be given to NTS in writing within seven (7) days of submitting the order.

1.5 NTS may decline the Buyer’s additional terms. Additional terms bind NTS only if NTS agrees to them in writing.

2. Prices and payment

2.1 Prices are in Australian dollars (AUD) and are set out in a valid written quote from NTS. Quoted prices exclude GST and handling unless the quote says otherwise. Until an order is accepted, prices may change with exchange rates, customs duty, freight, insurance and NTS’s suppliers’ prices.

2.2 Foreign exchange. Most Products are bought by NTS from overseas manufacturers in foreign currency (for example USD, EUR, GBP etc.). AUD prices in a quote are based on the exchange rate on the quote date, and the quote states that rate. If the AUD falls by more than 3% against that currency between the quote date and the date NTS generates the invoice (partial or full as set in quote’s payment terms), NTS may adjust the AUD price of an accepted order by the actual change in the exchange rate. NTS will give the Buyer written notice with the rates used before invoicing, and the Buyer may then cancel the order within five (5) business days without any cancellation charge. If the rate moves the other way by more than the same amount, NTS will pass on the saving. For custom-configured and made-to-order Products (clause 5.6), the deposit set out in the quote is fixed in AUD when paid, and only the remaining balance is adjusted under this clause, using the exchange rate on the date NTS generates the balance invoice. NTS will still give written notice with the rates used, but the cancellation right in this clause does not apply; clause 5.6 applies instead.

2.3 Import and export charges, transport, handling, insurance, customs fees, duties and taxes are payable by the Buyer unless included in the quote.

2.4 A Buyer claiming a tax exemption must give NTS a valid exemption certificate.

2.5 NTS may change or withdraw the Buyer’s credit terms, or require payment in advance, for orders not yet accepted. For accepted orders, NTS may do so only if the Buyer has not paid an overdue invoice or is insolvent.

2.6 Invoices are payable in full in AUD by the due date shown. If no due date is shown, payment is due within thirty (30) days of the invoice date.

2.7 If an invoice is not paid by its due date, NTS may charge interest on the overdue amount, calculated daily, at NTS’s bank’s business lending reference rate plus 5% per year, from the due date until payment.

2.8 NTS may withhold delivery of Products and Services if the Buyer’s account exceeds its approved credit limit, earlier invoices are overdue, the Buyer is in material breach of these Terms and Conditions, or the delivery destination differs from the quote.

2.9 If the Buyer does not pay an undisputed invoice, the Buyer must pay NTS’s reasonable costs of recovering the debt, including reasonable legal and collection costs.

2.10 If part of an invoice is disputed, the Buyer must pay the undisputed balance by the due date and tell NTS in writing why the rest is disputed.

2.11 Quotes are valid for thirty (30) days from the quote date, unless the quote states otherwise.

3. Delivery

3.1 NTS will deliver Products to the Buyer’s premises stated in the quote or order.

3.2 Risk in the Products passes to the Buyer when they are delivered to the Buyer’s premises or, if the Buyer arranges its own carrier, when they are handed to that carrier.

3.3 Ownership of the Products passes to the Buyer when NTS has been paid in full.

3.4 A carrier arranged by the Buyer is not NTS’s agent.

3.5 Delivery times in a quote are estimates of when Products will be ready to dispatch plus transit time. NTS is not liable for delay caused by the carrier or events outside NTS’s control.

3.6 If NTS is prevented from delivering on time by events beyond its reasonable control (including strike, war, natural disaster, power failure, delays in obtaining licences, accident, or disruption to NTS’s or its suppliers’ business), NTS may extend the delivery period or, if the delay exceeds ninety (90) days, either party may cancel the order. On cancellation the Buyer pays for Products and Services already supplied and NTS refunds any amounts paid for anything not supplied.

3.7 The Buyer must accept delivery at the agreed premises. If the Buyer substantially delays accepting delivery, NTS may charge reasonable storage and related costs, and Products in storage are at the Buyer’s risk.

4. Changes to orders

4.1 NTS may supply the current version of a Product, or make changes to Products, provided the change does not reduce the Product’s performance or the specification in the quote.

4.2 NTS is not obliged to apply changes to Products already delivered.

4.3 If the Buyer asks to change an order, NTS may adjust the delivery date and price to reflect the change, and will confirm this in writing before proceeding. Change requests must be made in writing within five (5) business days of placing the order.

4.4 The Buyer pays the reasonable costs caused by its changes.

4.5 NTS is not responsible for specification changes requested other than in writing.

4.6 The Products’ specifications are those in the NTS quote (which may refer to the manufacturer’s datasheet current on the quote date). This does not affect the Buyer’s rights if a statement made by NTS was misleading.

5. Cancellation of orders

5.1 Once an order is received by NTS, the Buyer may cancel it only with NTS’s written approval.

5.2 NTS may withhold approval acting reasonably, for example where Products have been ordered from the manufacturer or custom-configured.

5.3 NTS may cancel an order or quote if a Product becomes unavailable, and will refund any amount paid for it.

5.4 NTS may decline an order after receiving it if the Buyer’s trade references are unsatisfactory.

5.5 If NTS approves a cancellation, the Buyer pays NTS’s costs actually incurred because of the cancellation (including manufacturer cancellation and restocking charges, freight and duties), up to 25% of the order value if cancelled within five (5) business days of the order, and up to 100% after that.

5.6 Custom-configured and made-to-order Products. Products built or configured to the Buyer’s specification, or made by the manufacturer only after receiving the order, which includes all Products unless the quote says they are supplied from NTS stock, cannot be cancelled by the Buyer once NTS has placed the order with the manufacturer. If such an order is cancelled under clause 2.2 or 3.6, or where the law requires, the Buyer pays the costs NTS cannot recover from the manufacturer (including non-refundable deposits, cancellation charges and freight), up to the order value. NTS may require a deposit, as set out in the quote, before placing the order.

6. Inspection, damage and returns

6.1 The Buyer must inspect Products on delivery. Transit damage must be noted to the delivery driver and reported to NTS in writing (“Received Damaged”) as soon as practicable, and within five (5) business days.

6.2 Other defects should be reported to NTS in writing quoting the invoice number and date. Reporting promptly helps NTS and the manufacturer resolve them quickly; it does not limit the Buyer’s rights under the Australian Consumer Law.

6.3 To return a Product, the Buyer must first obtain NTS’s shipping instructions and a Return Authorisation, attach it to the Product, and ship it in its original condition and in its original or equivalent packaging.

6.4 Change-of-mind returns are at NTS’s discretion. Custom-configured Products, Products costing more than AUD 10,000 and Products damaged or altered by the Buyer cannot be returned for change of mind. Accepted change-of-mind returns are freight prepaid by the Buyer and attract a 25% restocking charge.

6.5 Faulty Products are not returned for refund; they are repaired under the warranty in clause 7 (or, at NTS’s option, replaced), on site or at the manufacturer, without a restocking charge. This does not limit the Buyer’s rights under the Australian Consumer Law, which for a major failure can include a replacement or refund.

6.6 NTS is not responsible for loss or damage in transit for Products the Buyer ships to NTS or the manufacturer, unless NTS arranged the shipment.

7. Warranty and liability

7.1 Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are 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 benefits of the NTS warranty in this clause are in addition to the Buyer’s other rights and remedies under the law.

7.2 NTS warrants that, for the warranty period, Products will conform to their applicable specifications when used normally and correctly installed and maintained.

7.3 The warranty period is the number of months in the NTS quote or order acknowledgement. If none is stated, it is twelve (12) months from delivery.

7.4 During the warranty period NTS will repair or replace a defective Product or component, based on inspection by NTS or the manufacturer’s service engineer. Faulty Products sent away for repair go to the manufacturer, following NTS’s shipping instructions. Shipping to the manufacturer under warranty is at no cost to the Buyer. NTS pays for shipping repaired or replacement Products back to the Buyer.

7.5 To make a warranty claim, contact NTS at info@nt-s.com.au or (08) 6266 8324, Level 30, 91 King William Street, Adelaide SA 5000, describing the fault and quoting the invoice number. NTS will give shipping instructions.

7.6 Repaired or replaced Products are warranted for the rest of the original warranty period. Products repaired outside the warranty are warranted for ninety (90) days, unless stated otherwise.

7.7 The warranty does not cover Products repaired or modified by anyone other than NTS or the manufacturer, Products used with equipment not recommended by NTS or the manufacturer, Products not installed, used or maintained according to the manual or in the recommended environmental conditions, or Products past the warranty period.

7.8 Outside the warranty, the Buyer pays for repair, replacement and shipping to and from the manufacturer, except where the Australian Consumer Law gives the Buyer a remedy.

7.9 To the extent the law allows:

(a) where Products or Services are not of a kind ordinarily acquired for personal, domestic or household use, NTS’s liability for failing to comply with a consumer guarantee is limited, at NTS’s option, to replacing or repairing the Products (or paying the cost of doing so), or supplying the Services again (or paying the cost of doing so);

(b) NTS is not liable for indirect or consequential loss, including loss of profit, revenue, income, grants or data, loss of research work, experiments or samples, or instrument downtime, except loss the Buyer is entitled to recover under the Australian Consumer Law despite paragraph (a); and

(c) nothing in these Terms and Conditions excludes, restricts or modifies any right or remedy the Buyer has under the Australian Consumer Law or any other law that cannot lawfully be excluded.

8. Installation and services

8.1 When NTS staff or the manufacturer’s service engineer attend the Buyer’s premises, the Buyer must provide a safe workplace and its site safety rules and risk assessments, and NTS’s staff will follow them.

8.2 For installation, the Buyer provides the required utilities (power, water, compressed air and the like) as set out in the quote or site requirements.

8.3 The Buyer pays for hiring handling or lifting equipment and other site costs, if any, as set out in the quote.

8.4 NTS will perform Services with due care and skill.

9. Maintenance services

9.1 Maintenance, if applicable, is provided for Products within their warranty period on a schedule that depends on the Product and the recommendation of NTS’s service engineer.

9.2 After the warranty period, the Buyer pays for maintenance and service at NTS’s service rates applying at the time.

9.3 NTS may change its service rates. Changes do not apply to service already quoted or booked.

9.4 Maintenance does not include repairing damage caused by misuse or by operation not in line with the operating instructions or faults occurring outside of warranty period.

10. New Zealand

10.1 For Buyers in New Zealand acquiring Products or Services for business purposes, the parties agree that the Consumer Guarantees Act 1993 does not apply, and that it is fair and reasonable for the parties to be bound by this clause. Sections 9, 12A and 13 of the Fair Trading Act 1993 also do not apply to the extent permitted by section 5D of that Act.

11. Privacy

11.1 NTS handles the Buyer’s personal information in line with its Privacy Policy at nanotechnologysolutions.com.au/privacy-policy/, including sharing details with the manufacturer where needed to quote, supply, install or support Products.

12. General

12.1 These Terms and Conditions are governed by the laws of South Australia, and the parties submit to the courts of South Australia.

12.2 If any part of these Terms and Conditions is invalid or unenforceable, it is severed and the rest continues to apply.

12.3 A failure or delay by NTS to exercise a right is not a waiver of it.