GENERAL TERMS AND CONDITIONS OF SALE

1. Definitions
In these General Terms and Conditions of Sale the following terms have the following meanings:

2. Applicability

2.1 These General Terms and Conditions of Sale form part of all Contracts and are applicable to all (other) transactions and legal acts by Thetford and the Customer.

2.2 These General Terms and Conditions of Sale supersede and replace any general or specific terms and conditions or stipulations put forward by the Customer and can only be amended in writing and signed by Thetford.

3. Offers and the creation of Contracts

3.1 Any offer or price quotation merely represents an invitation to place an order.

3.2 A Contract is formed only if and insofar as an order from the Customer is accepted by Thetford in writing or an order is implemented by Thetford.

3.3 Thetford may, at is discretion and without prior notice to the Customer, refuse to accept any order from the Customer. The Customer acknowledges that Thetford may refuse and cease supply of Products to the Customer on an ongoing basis without liability to the Customer.

3.4 While all statements of numbers, dimensions, weights and other designations and technical descriptions of the Products are made by Thetford with proper care, Thetford cannot guarantee that no variations will occur in these details. Samples, drawings or models displayed or provided are merely indications of the Products in question.

4. Changes and additions

4.1 Changes and additions to any stipulation in a Contract or in these General Terms and Conditions of Sale must be agreed in writing.

4.2 Where a change or addition as referred to in section 4.1 is agreed, that change or addition shall apply only for the particular Contract in question.

5. Prices

5.1 All prices are exclusive of goods and services tax, and unless expressly stated otherwise the costs of packaging and carriage, import and export duties, excises and all other levies or taxes charged in respect of the Products and their transport are payable by the Customer.

5.2 Prices are based on the circumstances applying for Thetford at the time when the Contract is formed, including but not limited to currency exchange rates, purchase prices, carriage rates, import and export duties, excises, levies and taxes that are levied directly or indirectly on Thetford or charged to Thetford by third parties. If these circumstances change subsequent to the formation of the Contract but prior to delivery, Thetford has the right to charge on the resulting charges to the Customer.

6. Delivery period

6.1 The delivery period quoted by Thetford is based on the circumstances as they apply to Thetford at the time when the Contract is formed and (where Thetford is dependent on performances by third parties) on the information provided to Thetford by those third parties. Thetford will use its reasonable endeavours to comply with the delivery period but gives no warranty that it will do so.

6.2 The delivery period commences on the date on which the order is confirmed in writing by Thetford. Where Thetford requires information or resources that are to be provided by the Customer for the performance of the Contract, the delivery period commences on the date that all the required information or resources are in Thetford’s possession, but no earlier than the date of confirmation of the order in writing.

6.3 If the delivery period is exceeded, the Customer shall not have the right to cancel the Contract unless the delay in delivery is of such an extent that the Customer cannot reasonably be expected to continue with the Contract. In the latter case, the Customer is entitled to cancel the order in question provided that the Customer notifies Thetford accordingly by registered letter, without prejudice to Thetford’s right to deliver the Products to the Customer provided that Thetford does so within one week after receipt of that notification.

7 Delivery and risk

7.1 Where so stated on the quotation or order confirmation, the delivery of the Products, the stipulations regarding delivery charges and the passing of the risk are in accordance with the usual commercial terms, such as carriage paid, f.o.b., c.i.f. and c.f., and the Incoterms of the International Chamber of Commerce in Paris as they apply from time to time are applicable in all such cases.

7.2 Unless specifically stated in a quotation or order confirmation as contemplated by clause 7.1 the risk in respect of the Products and the packaging passes to the Customer in all cases at the point when the Products leave Thetford's premises for transport to the Customer's designated delivery point, and the transport of the Products shall in all cases be carried out for the Customer’s account and risk.

7.3 If the Customer fails to collect or take receipt of the Products or the documents issued for the Products or to do so promptly, the Customer shall be in default without further warning. In that case Thetford is entitled to have the Products stored for the Customer’s account and risk or to sell the Products to a third party. The Customer remains liable for the purchase price plus interest and charges (by way of compensation), where appropriate minus the net yield from the sale of the Products to such a third party.

7.4 Thetford is entitled to make part deliveries at all times.

8. Force majeure

8.1 If Thetford is unable to meet its obligations to the Customer as a result of force majeure, these obligations shall be suspended for the duration of the state of force majeure.

8.2 If the force majeure has lasted for one (1) month either party may cancel all or part of the Contract. In the event of force majeure the Customer has no right to any compensation or payment even if Thetford has enjoyed any benefit as a result of the force majeure.

8.3 Force majeure affecting Thetford means any circumstance beyond Thetford’s control that prevents the performance of Thetford’s obligations towards the Customer in whole or in part or is such that Thetford cannot reasonably be expected to comply with its obligations, irrespective of whether that circumstance was foreseeable at the time when the Contract was entered into. Such circumstances include but are not limited to: strikes at Thetford or elsewhere, stoppages or other problems in manufacturing by Thetford or its suppliers and/or in transport provided by Thetford or by third parties and/or measures by any government institution, together with the lack of any permit or licence to be obtained from the authorities, such as an import or export licence.

8.4 Thetford will inform the Customer as soon as possible of any potential or actual state of force majeure.

9. Payment

9.1 The Customer shall pay the amounts owed by it to Thetford as set out in the invoice and within the payment period shown on Thetford’s order confirmation, or if no such payment period is shown within 30 days after the date of the invoice. All payments must be made to a bank account or as otherwise specified by Thetford.

9.2 The Customer must pay all the amounts charged to it in full without discount or deduction and may not set off any sums alleged to be owed to it against that payment. In addition, the Customer does not have the right to suspend any payment due to Thetford.

9.3 Even after the formation of the Contract, Thetford may demand payment of the purchase price in advance or the provision of what Thetford considers to be adequate security, including the usual commercial terms of documentary credit such as irrevocable letters of credit, cash against documents or cash against delivery.

9.4 The Customer will be in default of these General Terms and Conditions if it is late in making any payment. In that case, all Thetford’s claims against the Customer in any respect whatsoever become immediately due and payable.

9.5 If the Customer fails to pay any invoice from Thetford in full within the payment period the Customer will automatically be in default without any notice of default or further warning being required. In such a case, Thetford has the right to charge interest at the rate charged by Commonwealth Bank of Australia to its customers on overdrafts plus a surcharge of 3% without further notice.

9.6 If the Customer is in default of payment to Thetford the Customer will be obliged to reimburse Thetford in full for all Thetford's legal and debt recovery costs and court costs.

9.7 If Thetford sends the Customer payment reminders or other requests for payment once the Customer is in default, this is done without prejudice to the provisions of sections 9.4, 9.5 and 9.6.

10. Reservation of title

10.1 Notwithstanding the actual delivery of the Products, title to the Products does not pass to the Customer until the Customer has paid in full all sums that the Customer is or will be due to Thetford in respect of Products delivered or to be delivered under the Contract, including but not limited to the purchase price, any surcharges, interest, taxes and charges payable under these General Terms and Conditions of Sale or under the Contract, together with any work performed or to be performed in respect of the Products.

10.2 Until title to the Products has passed to the Customer the Customer may not lease the Products to third parties, make the Products available for use by third parties, pledge the Products to third parties or otherwise agree a charge on the Products in favour of third parties. The Customer is entitled to sell or deliver the Products to which Thetford holds the title to third parties or install such Products only insofar as is necessary in the context of the Customer’s ordinary activities. These powers or as appropriate the exercise of these powers shall not prejudice Thetford’s ownership rights and Thetford’s right to repossess the Products and, where necessary, to uninstall them for that purpose.

10.3 If and for as long as Thetford is the owner of the Products, the Customer shall inform Thetford in writing without delay if the Products or the items in which the Products have been installed are seized or attached or if any claim is otherwise made on the Products or any part of them. Further, the Customer shall on Thetford’s first request inform Thetford where the Products are located.

10.4 In the event of seizure or attachment, (provisional) suspension of payment or involuntary liquidation, the Customer shall immediately inform the bailiff serving the charge, the administrator or the receiver of Thetford’s title rights and other rights.

11. Customer and complaints

11.1 The Customer is obliged to check the number of Products carefully as soon as they are received by the Customer itself or a third party acting for the Customer if earlier, and to compare that number with the number shown on the waybill or other consignment document.

11.2 The Customer is obliged to inspect the Products carefully or have them so inspected as soon as they are received by the Customer itself or a third party acting for the Customer if earlier. Any complaints of defects in the Products must be reported to Thetford in writing within no more than eight (8) days after the receipt of the Products.

11.3 Defects that could not reasonably be detected within the said period must be reported in writing to Thetford immediately on their detection and at latest within thirty (30) days after the arrival of the Products.

11.4 On the detection of any defect, the Customer must discontinue the use, treatment or installation of the defective Products without delay.

11.5 The Customer will provide Thetford with all requested cooperation for the investigation of the complaint, for example by giving Thetford the opportunity to carry out (or arrange for) an on-site investigation of the circumstances of treatment, installation or use.

11.6 The Customer has no right to complain in respect of Products where Thetford is unable to carry out a verification of the complaint.

11.7 The Customer may not return defective Products until Thetford has agreed to their return in writing. The Products shall be transported as instructed by Thetford in all cases. Provided that a complaint has been made promptly, correctly and justifiedly, the reasonable costs of return are payable by Thetford if those costs have been approved by Thetford in advance.

11.8 If the Customer complains promptly, correctly and justifiedly of defects in a Product, Thetford’s liability in that respect is limited to the obligations set out in sections 12 and 13 and the Customer has no further claims against Thetford. Nor has the Customer the right to cancel all or part of a Contract with Thetford.

11.9 In the event that the Customer does not notify a complaint to Thetford promptly and correctly (and in any event within eight (8) days of identifying any defect)to the fullest extent permitted by law the Customer waives its right to bring any action against Thetford in relation to the defective Products.

12. Warranty

12.1 Thetford warrants that the Products will show no defects and will function in accordance with their specifications from their delivery to twelve (12) months after their purchase by the first end user on condition that all the obligations and requirements set out in section 14 are strictly complied with in all cases by the Customer, any middleman and first end user.

12.2 If the Products show defects or do not function in accordance with their specifications within the period specified in section 12.1 Thetford shall, at its discretion, either replace the Products that have proved faulty free of charge on the return of the faulty Products, or replace the faulty Products with the replacement of components where necessary. By doing so, Thetford shall have discharged its warranty obligations in full and shall not be obliged to make any further compensation or payment.

12.3 Thetford explicitly reserves the right to stipulate a different warranty duration in writing.

12.4 To the maximum extent permitted by law (including under the Australian Trade Practices Act 1974 (Cth)), Thetford excludes all other conditions and warranties implied by custom, the general law or statute and is not liable for any losses or damages (including any special, indirect or consequential losses or any loss of opportunity, revenue or profits) suffered by the Customer, any middleman or end users of the Products arising in any way out of the supply, delay in or failure to supply the Products and Thetford limits its liability in tort, under these General Terms and Conditions (including under any warranty) or under any non-excludable implied condition or warranty to, at Thetford's option, refunding the price of the Products, repairing or replacing the Products or paying the cost of repairing or replacing the Products.


13. Liability and indemnity

13.1 Without prejudice to the provisions in sections 12 and 13.2 and except in the case of wilful misconduct or gross negligence by Thetford or its managerial staff, Thetford’s contractual and third-party liability towards the Customer is limited to the amount of the purchase price of the Product in respect of which Thetford’s contractual and third-party liability has arisen.

13.2 Except in the case of wilful misconduct or gross negligence by Thetford or its managerial staff, Thetford is not under any circumstances liable for indirect damage suffered by the Customer, including consequential loss, environmental damage and non-pecuniary damage.

13.3 Except in the case of wilful misconduct or gross negligence by Thetford or its managerial staff, the Customer shall indemnify Thetford against all claims by the middleman, the end user or any other third party whatsoever in respect of compensation, damages, expenses or interest in connection with the Products or flowing from the use of the Products. If a claim is made against the Customer in that respect by the middleman, the end user or any other third party whatsoever, recourse against Thetford is excluded except in the case of wilful misconduct or gross negligence by Thetford or its managerial staff.

14. Other obligations of the Customer

14.1 The Customer warrants that, as applicable, the Customer itself, the middleman and the end user will ensure that:
a. the Products are stored in a suitable place;
b. the Products are not changed or modified;
c. the products are not subjected to damage, misuse or rough handling by the Customer or its personnel;
d. the serial number and/or date of manufacture are not changed or modified;
e. the Products are installed by qualified persons, who will follow the installation instructions.

14.2 The Customer is obliged to impose the provisions and requirements set out in section 14.1 on its contracting party and to place that party under the obligation to do the same, to the effect that these provisions and requirements are sufficiently known to the end user.

15. Default/dissolution

15.1 If the Customer fails to comply properly or fails to comply promptly with any obligation arising to the Customer from any Contract, the Customer shall be in default without further notice and Thetford shall have the right:

- to suspend performance of that Contract and other Contracts directly related to it until compliance is sufficiently assured; and/or
- to dissolve that Contract and other Contracts directly related to it in whole or in part;
without Thetford being obliged to compensate the Customer in any way and without prejudice to Thetford’s further rights.

15.2 In the event:
a. the Customer ceases to carry on business;
b. the Customer ceases to be able to pay its debts as they become due;
c. the Customer takes any step to enter into an arrangement with its creditors;
d. any step is taken to appoint a receiver, liquidator, administrator or other like person over the whole or any part of the Customer's assets or business; or
- Thetford may, in its sole and unfettered discretion, terminate all Contracts with the Customer unless Thetford notifies the Customer within a reasonable time that Thetford requires compliance with the Contract(s) or part of the Contract(s), in which case Thetford may without further notice of default:
- suspend performance of the Contract(s) in question until the Customer’s compliance has been sufficiently assured; and/or
- suspend all obligations that it may have in respect of the Customer;
without Thetford being obliged to provide any compensation whatsoever and without prejudice to Thetford’s further rights.

15.3 In each of the cases specified in sections 15.1 and 15.2 all amounts owed to Thetford by the Customer become immediately due and payable in full, the Customer is obliged to return any still unpaid Products immediately and Thetford has the right to enter the Customer’s sites and buildings in order to take possession of those Products and where necessary to dismantle installed Products for that purpose.

16. Applicable law – competent court

16.1 Each Contract and these General Terms and Conditions of Sale shall be governed by the laws of NSW and the parties submit to the exclusive jurisdiction of the Courts of NSW provided always that Thetford has the right to bring claims against the Customer, simultaneously or otherwise, in any other jurisdiction where the Customer is located,.

16.3 Part or all of any provision of these General Terms and Conditions that is illegal or unenforceable may be severed from these General Terms and Conditions and the remaining provisions of these General Terms and Conditions continue in force.

16.4 The applicability of the Vienna Convention on the International Sale of Goods 1980 (CISG) is excluded.
These general terms and conditions can also be found on our Internet site (www.thetford.com.au and www.thetford.co.nz) .