Terms & Conditions

1. General
1.1 Definitions
Auto Control Systems (ACS): Shall mean Auto Control Systems Pty Ltd. This includes any other company acquired or controlled by Auto Control Systems or its subsidiaries.
Purchaser: Shall mean the company, firm or persons for whom work under this contract is performed and shall include executors, administrators, successors and permitted assignees.
Goods: Shall mean everything to be supplied by ACS, including all equipment and services.
GST and Taxable supply: Shall have the meaning given in A New Tax System (Goods and Services Tax) Act 1999.
1.2 Conditions
These conditions form part of the offer in which that are referred to or to which they are attached.
1.3 Precedence
If there is any inconsistency between the Conditions of the Offer and these Conditions, then the former shall prevail.
1.4 Variation of Conditions
Notwithstanding any acceptance by ACS of any order from the Purchaser that may contain any provision inconsistent with or purporting to vary or reject any of these Conditions, any contract arising from any such acceptance shall be subject to these Conditions unless and to the extent only that ACS expressly agrees in writing to any variation thereof.
1.5 Additional documentation or verbal matter
No documentation, correspondence, verbal agreement or conversation shall form part of or affect or modify any aspect of the offer or contract unless accepted or confirmed by ACS in writing.
1.6 Partial invalidity
In the event of one or more clauses of these conditions or any clauses included in ACS’s offer being held by a Court of Law to be legally invalid or unenforceable, the remainder or such conditions shall be in no way affected.
1.7 Separable portions
The provisions of these Conditions shall apply to any supply of a separable portion or portions of the Goods.

2. Offer and Order
2.1 Validity
Unless previously revoked by written notification to the purchaser, ACS’s offer shall remain valid for the period as stated in the offer or, where no such period is stated, for seven (7) days from the date thereof.
2.2 Delivery Time
Goods offered ex stock are subject to prior sales. Any delivery time offered is without obligation.
2.3 Variations
(a)Variation in quantity
The quoted price is based upon the scope referred to in the offer. Should there be any variation in the total quantity of Goods ordered, ACS reserves the right to amend the price.
(b) Variation in Scope of Supply
If the Purchaser instructs ACS in writing or ACS considers any instruction from the Purchaser verbal or written to be an instruction to perform a variation then ACS will perform the variation but only after the Purchaser has agreed the price in writing within 7 days of receipt by ACS of the instruction. The agreed price of the variation will be added to the Contract Sum and if ACS is delayed it shall be entitled to an extension of time.
2.4 Acceptance and Order
The Acceptance of ACS’s offer must be confirmed in writing and followed by a Purchase Order. Any verbal instruction to proceed with the supply of Goods will be deemed to be on the basis of our Standard Terms and Conditions of Sale.
2.5 Acceptance of order outside of offer validity period
Acceptance of offer outside the validity period stated in 2.1, ACS will be able to revise the offer before accepting the order.
2.6 Cancellation, variation or suspension
A contract may be cancelled, varied or suspended only by notice in writing and only if such notice is accepted in writing by ACS. In the event of such cancellation, variation or suspension the Purchaser shall compensate ACS for any costs or loss incurred including but not limited to loss of profit, losses arising from any hedge relating to the supply, purchase of Goods for the order, labour expended on the order and any other costs incurred from Goods sub suppliers, finance providers and others directly related to the performance under the contract.

3. Specifications and Drawings
3.1 Information and Drawing
All description specifications, illustrations, drawings, data, dimensions and weights furnished by ACS or otherwise contained in catalogues, price lists and other advertising
matter of ACS are approximate only and are intended to be by way of a general description of the Goods and shall not form part of the contract.
3.2 Orders and Specifications
Any advice or recommendation given by ACS or its employees or authorized agents to the Purchaser or its employees or authorized agents regarding storage, use or application of the Goods is given in good faith and does not constitute a guarantee of suitability or fitness for use. The Purchaser at all times remains responsible for the application of the Goods and ACS’s liability in this regards shall be limited absolutely to the providing of Goods in compliance with published specifications.
3.3 Confidential information
All drawings, specifications and other written information, samples and the like provided by ACS shall be regarded as confidential and shall not be disclosed to a third party except with the prior written consent of ACS.
3.4 Information to be provided
The Purchaser shall, within seven (7) days from the date his order, furnish to ACS sufficient information which, in the reasonable estimation of ACS, will enable work to proceed forthwith and without interruption, otherwise an extension of time under clause 5.4 applies.
3.5 Approval of drawings
Drawings or other information requiring the Purchaser’s approval shall be approved, amended or rejected and returned to ACS within fourteen (14) days of the date of receipt or other such period as may be agreed in writing. Any delay beyond this period shall constitute grounds for extension of the completion/delivery date under clause 5.4.
3.6 Incorrect information
The Purchaser shall be responsible for and bear the cost of any alteration to the Goods arising from any discrepancy, error or omission in any drawings, specification or other information supplied or approved by him.
3.7 Responsibility for approvals
In the absence of agreement to the contrary, and subject to clause 14, it shall be the Purchaser’s responsibility to obtain and provide any approvals, licenses or permits as necessary for performance of the contract.
3.8 Assembly
If the Goods are to be assembled, produced and/or additional processing added by ACS in accordance with the specification stipulated by the Purchaser, then the Purchaser shall indemnify ACS against any loss, damages, costs and expenses awarded against or incurred by ACS in any infringement of Intellectual Property Rights, which may result from the Purchaser’s specification.

4. Performances and Tests
4.1 Performance
Any performance figures given by ACS are based on ACS’s experience and manufacturers specifications and are such as ACS expects to obtain on test. Subject to recognised tolerances applicable to such figures, ACS shall be under no liability for damages for failure to attain such figures unless ACS specifically guaranteed them in writing.
Where ACS has agreed to performance figures but fails to achieve such figures, ACS shall make good such failure as provided for in clause 12 hereof. ACS’s liability, if any, shall in any case be limited as provided for in clause 13 hereof.
4.2 Inspection and tests
4.2.1 Where inspection and tests are performed, they will be in accordance with ACS’s’ standard practice and will be carried out at the place of manufacture or at some other place at ACS’s option. The cost of these tests and any other test specified in the offer shall be borne by the Purchaser. Any further tests or witnessed tests required by the Purchaser will be carried out at his expense subject to ACS’s consent to perform these further tests.
4.2.2 After seven (7) days from the date of notification that ACS is ready to carry out any witnessed tests required, such tests may proceed in the absence of the Purchaser or his representative and shall be deemed to have been made in their presence.
4.2.3 ACS shall not be responsible for expenses incurred by the Purchaser in respect of their presence or that of its representative at witnessed tests.
4.2.4 If on any such tests or inspection, Goods shall be found defective due to faulty design, material or workmanship or found not to be in accordance with the contract, ACS shall make good such defect or failure as provided for in clause 12 hereof.

5. Time/Date for Completion
5.1 Base date
All times offered for delivery or completion shall be calculated from the date ACS receives a technically and commercially clear order.
5.2 Delivery Time/Completion Date
Any delivery time, completion date or period offered is an estimate only and is not to be construed as a fixed time unless expressly incorporated in the offer as such.
5.3 Extension of time
The completion/delivery date or period shall be extended in respect of any delay caused by the Purchaser, by industrial dispute including strikes and lockouts, circumstances such as fire, war, mobilization, requisition, embargo, currency restrictions, shortage of transport, general shortage of materials, restrictions in the use of power or by any cause beyond reasonable control of either ACS or any of ACS’s subcontractors or as a result of a variation of the original order or as provided for in these Conditions.

6. Packing
Unless otherwise stated in the offer the Goods will be packed in accordance with ACS’s customary standard of packing and the cost thereof will be for the Purchaser’s account. Any special packing required by the Purchaser will likewise be for the Purchaser’s account.

7. Delivery, Storage and Returns
7.1 Delivery ex works
Unless otherwise stated in the offer, the Goods is supplied ex works and delivery to a carrier, including loading, shall constitute delivery to the Purchaser. The carrier’s vehicle shall be of a type allowing vertical or horizontal access for loading required by ACS.
7.2 Delivery beyond ex‐works
If delivery is required other then ex works, ACS may, at their discretion, agree to act as an agent for the Purchaser in this matter and all costs for carriage and insurance will be for the Purchaser’s account.
7.3 Shortages in delivery
Claims for shortages in delivery shall only be accepted by ACS if ACS is notified in writing within ten (10) days of receipt of the Goods.
7.4 Storage
If after a period of fourteen (14) days from the date of notification that the Goods is ready for delivery, delivery is delayed for any reason beyond ACS’s reasonable control, ACS shall be entitled at ACS’s option to arrange suitable storage at ACS’s premises or elsewhere and shall take reasonable measures to protect the Purchaser’s interest in the Goods.
The Purchaser shall accept all costs of storage, insurance, demurrage, handling and other charges as set out in invoices for payment in accordance with clause 11.
7.5 Partial deliveries
ACS reserves the right to make partial deliveries against an order and to separately invoice same unless otherwise agreed in writing. Payment thereof will fall due in accordance with clause 11.1.
7.6 Goods Returned for Credit
7.6.1 Goods will be accepted for credit only by prior agreement or to the extent that they have been wrongly or over supplied. Returned goods shall be delivered to ACS free of charge, in good order and condition, unused and in the original packing, accompanied by a dispatch note stating the original invoice number, date of supply and reason for return. Except where goods have been wrongly or over supplied, a charge as determined by ACS will be made for handling costs.
7.6.2 Goods made to specific order cannot be returned or credited unless not to specifications or otherwise not in accordance with any expressed or implied term of the contract

8. Insurance and Risk
8.1 Insurance
ACS acting as an agent for the Purchaser in accordance with clauses 7.2 and 7.4 hereof may insure the Goods for the contract price plus 10%. The cost of such insurance will be for the Purchaser’s account. In any event ACS’s liability shall be limited to the extent of such insurance.
8.2 Risk
Risk in the Goods shall remain with ACS only to the contractual point of delivery (as defined in clause 7.1) and thereupon risk of damage, loss or deterioration of the Goods from any cause whatsoever shall pass to the Purchaser.

9. Title
9.1 Not withstanding that the risk in the Goods sold shall pass to the Purchaser as provided in clause 8.2 hereof title and property in the Goods sold shall remain with ACS until such time as full payment is made to ACS for all amounts owing by the Purchaser and so that the Purchaser’s total indebtedness to ACS under the terms and conditions of sale is discharged.
9.2 In the event that the Purchaser fails to make payment for the Goods in accordance with the terms of the contract then ACS shall have the right to recover from the Purchaser the Goods and for that purpose the servants or the agents of ACS may enter upon the Purchasers premises in order to effect recovery and use any reasonable means of force in order to effect recovery. ACS shall have the right to resell or otherwise dispose of the Goods so recovered without reference to the purchaser.
9.3 If any of the Goods is incorporated in or used by the purchaser as parts, components or materials in respect of any other product of the Purchaser before payment in full has been made for the Goods then the property in the whole of the product into which the parts, components or materials have been incorporated shall be and become that of ACS until such time as payment in full has been made by the Purchaser.
9.4 Notwithstanding the provisions hereof and in particular Clause 11 hereof payment shall become due immediately upon the Purchaser (being a natural person) committing any act of bankruptcy or if the Purchaser (being a company) commits any act of which entitles any person to apply to wind up the Purchaser or if a liquidator, administrator, controller, mortgagee in possession, receiver or like officer is appointed over part or all of the Purchaser’s assets.
9.5 The Purchaser acknowledges that until his total indebtedness to ACS is discharged he holds the Goods sold as bailee of ACS and that a fiduciary relationship exists between ACS and the Purchaser.
9.6 In the event that the Purchaser sells the Goods to the Purchaser’s customers before payment in full for the Goods has been made to ACS then the Purchaser in a position of fiduciary shall:
(a) Assign to ACS the benefit of any claim against such Purchaser(s);
(b) Account fully to ACS for the proceeds of the sale of the Goods sold or any part thereof until the Purchaser’s total indebtedness to ACS is discharged.

10. Prices and Contract Price Adjustment
10.1 Price basis
(a) Unless otherwise specified all prices are quoted nett, ex‐works, in Australian dollars and excluding freight, carriage, non‐standard packaging charges, GST and other sales taxes (as applicable).
(b) All prices are subject to change without notice and orders are accepted by ACS on the condition that they will be invoiced at the price ruling on the date of delivery.
(c) Unless otherwise stated in the offer, the price offered is based on the costs of material, labour, freight, insurance, exchange duty and other costs and charges as are applicable on the quotation date stated elsewhere within the offer.
10.2 Sales Tax, GST or other Government Imposts
10.2.1 The price offered is exclusive of Sales Tax, GST or other Government imposts. Should Sales Tax, GST or other Government imposts become applicable the Purchaser shall pay those amounts in addition to the prices being offered in accordance with Clause 10.1.
10.2.2 If GST is payable in relation to a Taxable Supply the amount payable for that Taxable Supply will be the amount payable in accordance with this agreement plus GST.
10.3 Cost of delay or variation
If manufacture or delivery of Goods is delayed or varied by an act or omission of the Purchaser, his agent, or contractor for whom the Purchaser is responsible, ACS shall notify the Purchaser of any additional costs which may be incurred as a result of such a delay or variation. Such additional costs shall be for the Purchaser’s account at actual costs.
10.4 Cost of complying with regulations
If after the quotation date (see clause 10.1 above) the cost to ACS of performing its obligations under the contract is varied by reason of the making or amendment of any law or of any order, regulation or by‐law having the force of law, the amount of such increase or decrease shall be added to or deducted from the contract price.

11. Payment Terms
11.1 Payment due
Unless otherwise stated in the offer, the price offered is strictly net. Any payment due to ACS shall be made in full not later than thirty (30) days EOM from the date of invoice.
The extension of credit facilities is at the discretion of ACS and subject to confirmation on the receipt of an order. However, in any event, ACS retains the right to withdraw credit facilities at any time prior to delivery without further notification.
11.2 Part Payments
In the event the entire cost of sale is greater than AU$20,000, ACS may at their discretion request one or several partial payments of the final invoice amount prior to completion of the project.
11.3 Payment when delivery delayed
If delivery of Goods or items thereof is delayed by instructions or lack of instructions from the Purchaser, then payment of the full contract price shall be made within thirty (30) days after notification by ACS that the Goods is ready for delivery.
11.4 Delay or default in payment
Should the Purchaser delay in the respect of any payment due to ACS then ACS shall have the right, in addition to all others to which ACS is entitled at law, to charge interest on the overdue amount at the rate 3% per annum in excess of the interest prescribed by the NAB Indicator Lending Rate for Overdrafts above $100,000.00 calculated from the date of invoice to the actual date of full and final payment. Any payment by the Purchaser shall be credited first against any interest so accrued and the balance of payment, if any, shall be applied in reduction of the outstanding balance of the contract price. In the event of delay in any payment due to ACS, ACS may defer manufacture or delivery or cancel any outstanding balance of the order.
11.5 Legal Costs
The Purchaser shall pay any legal costs (on a solicitor/client indemnity basis) stamp duty, and other expenses payable on these conditions or any credit application, guarantee or other security documents signed by the Purchaser together with any collection costs or dishonoured cheque fee.
11.6 Credit Facilities
The ACS may withdraw the Purchasers credit facilities at any time or vary the Purchaser’s credit limit, without notice to the Purchaser or any guarantee of the Purchaser.

12. Warranty
12.1 Defects
ACS shall make good by repair or at ACS option by replacement within a reasonable time after notification by the Purchaser, defects which appear in the Goods, arising from faulty design, material or workmanship provided always that:
‐ such Goods had been properly handled and used and has been operated and maintained in accordance with instructions issued by ACS; and
‐ such defects are not caused by negligence, improper operation, accidental damage, incorrect use of operating material or lubricants, faulty civil or mechanical work,
unstable soil conditions and all other chemical, electrochemical and/or electrical influences which have not been provided for in the contract; and
‐ such defects (whether apparent or not) occur within a period of twelve (12) months after the date of delivery; and
‐ ACS is notified within seven (7) days of the alleged defect occurring; and
‐ the Purchaser has fulfilled his contractual obligations.
12.2 Repair or replacement
Where in accordance with 12.1 hereof the Purchaser has notified ACS of an alleged defect they shall, if ACS so requires, promptly, and at their own expense and risk return the defective part(s) to the factory (as specified by ACS) for repair.
The removal of the defective part and the installation of any repaired or replacement part shall be performed by the Purchaser at their own expense. Where any defective part(s) has been replaced, such defective part(s) shall become the property of ACS.
12.3 Limitation of liability
ACS warranty shall not cover goods of a consumable nature, or those having a low rated service life such as electric lamps, filters, electronic valves and glass components or where any unauthorised repair or alteration to the Goods has been performed by the Purchaser.
The above warranty does not cover or extend to parts, materials or Goods not manufactured by ACS in which respect the Purchaser shall only be entitled to the benefit of any such warranty or guarantee given to or extended by the original manufacture or third party to ACS.
12.4 Exclusions and ‘consumer’ rights
This express Warranty is in lieu of any other rights that would otherwise be conferred on the Purchaser under any Law save that this express Warranty does not exclude any conditions or warranties implied into this contract by the provisions of the Trade Practices Act 1974 or by any other Federal or State Laws to the extent the such condition or warranties may not be excluded by express agreement.

13. Liability
13.1 Limitation of Liability
13.1.1 Subject to clauses 12, 13.2 and 14 ACS shall not be under any liability whether in contract, tort or otherwise from any cause whatsoever, whether occasioned by negligence or otherwise, for any injury, damage or loss, including consequential damage or loss whether to persons or property, arising out of this contract or the Goods supplied pursuant hereto including any defects therein or anything connected herewith or any other work related thereto.
13.1.2 ACS shall not in any circumstances whatsoever be liable to the Purchaser for any consequential losses whatsoever.
13.2 When a Purchaser is a ‘consumer’
If the basis of a contract is such that the Purchaser is a consumer as defined in the Trade Practices Act or in any other law of the Commonwealth (or of any State or Territory ) of Australia, the Purchaser’s right shall be governed by the provisions of the said Act or any such law to the extent that such liability may not be excluded by express agreement and where the Goods to be provided by ACS is not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the liability of ACS for a breach of a condition or warranty implied by the Trade Practices Act 1974 (other than a condition or warranty implied by section 69) shall be limited to the repair of the work, or, at ACS’s option, the replacement of the work or the supply of installation of equivalent Goods.

14. Patents and Design Rights
14.1 In the event of any claim or claims in respect of any infringement of a Registered Design, Trademark, Copyright or Letters Patent, the specification of which is published prior to the date of the offer relating to any part of the Goods supplied by ACS (other than a part based on a design specified by the Purchaser), ACS will at their expense either replace or modify such part with a non‐infringing part or procure for the Purchaser the right to use such a part provided ACS is given the full opportunity to conduct all negotiations in respect of such claim and such claim shall not be accepted by the Purchaser without prior written consent of ACS. In no event shall ACS incur any liability for losses arising from the use of non‐use of any infringing part. The Purchaser warrants that any design or instructions furnished or given by him shall not be such as to cause ACS to infringe any Letters Patent, Registered Design, Trademark or Copyright on the execution of the order.
14.3 The patent and design rights held by ACS and relating to the Goods offered or supplied by ACS shall remain the absolute property of ACS and ACS designs and drawings shall not be reproduced or disclosed without ACS’s written consent. The purchaser will not, without ACS’s previous written consent, copy or allow others to copy any drawings, Goods or part thereof supplied by ACS.

15. Bankruptcy, Liquidation
If the Purchaser
(i) being a person, dies or commits an act of Bankruptcy
(ii)being a company, take or shall have taken against it any action for the winding up of the company or the placing of the company under official management or receivership other than for purposes of reconstruction of if a receiver, manager, controller, liquidator, administrator, mortgagee in possession or like officer is appointed over part or all of the Purchaser’s assets
then ACS, at its option and without prejudice to any other rights it may have under the contract or at Law, shall give notice in writing to the Purchaser and after fourteen (14) days from such notice may, unless otherwise provided by Law,
(a) terminate the contract or suspend manufacture or delivery of any Goods outstanding
(b) retain any security given or moneys paid by the Purchaser and apply this against the assessed loss and damages incurred by ACS in the performance of the contract.

16. Service of Notices
For the purpose of service of any document or notice in connection with the offer or contract it shall be sufficient for either party to forward such document or notice by ordinary mail if within Australia or air mail beyond Australia, with appropriate postage prepaid, or by telex, fax, telegram or cable to the last known address of the other party.

17. Legal Construction
In the absence of agreement to the contrary, the contact shall be construed and operate in conformity with the Laws of the state of Western Australia which is hereby deemed to be the proper Law of the contract.

18. Wassenaar Arrangement
The sale of these Goods is fully conditional upon their end use being in Australia or, should these Goods, be destined for export or re‐export then:
1) ACS being notified in each case and
2) There being no impediments regarding export from Australia imposed by Australian, or other countries export regulations.
Any breach or alleged breach of this condition gives ACS the right (without the need for notice or further explanation) to immediately suspend, postpone or cancel, at its sole discretion, the order or any undelivered portion thereof.

19. Sub‐contracting
The Supplier reserves the right to sub‐contract the manufacture and /or supply of the goods or any part thereof to a third party.

20. Intellectual Property
Any copyright or other intellectual property rights, software, copyright, source code, library code, Know How, Products or devices developed or any documentation prepared (“Intellectual Property”) for the Customer by the Company shall become the property of the Customer. The Company shall retain the right to retain and re-use any part or all of the developed materials on the basis that their use does not contravene any confidentiality or intellectual property agreements signed with the Customer.

21. Variation to Terms and Conditions of Sales
These Terms and Conditions of Sale shall apply between the Supplier and the Purchaser unless otherwise agreed in writing by an authorised officer of ACS.

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