In this agreement, unless the subject or the context otherwise requires “Vendor” means the supplier of goods or services and identified on the Invoice to which these terms and conditions are attached and each of us subsidiaries as defined in section 9 of the corporations Act and their agents, servants and employees,” Customer” means, the person or persons offering to contract with the Vendor on these terms and conditions; “Goods” means goods and services supplied by the Vendor to the Customer, “person” shall include a corporation, trust, partnership or other business entity. Words importing the singular include the plural and vice versa a reference to any party or other person includes the person’s successors and permitted assigns; the headings in these terms and conditions are not to affect its interpretation.
Any quotation given by the Vendor to the Customer is not an offer or obligation to sell but an invitation to treat only. A quotation is open for acceptance within the period stated in the quotation or within 30 days if no period is stated. The Vendor reserves the right to refuse any order based on a quotation within 7 days after receiving the order. By ordering Goods from the Vendor, the Customer is making a binding offer to purchase those Goods. A contract will only be formed when the Vendor notifies the customer in writing that it accepts the Customer’s offer. This contract will be on the terms and conditions embodied herein and , if applicable, in any Application for Trade Credit made by the Customer and any agreement between the parties completed at or about the time the Customer completed an Application for Trade Credit. Any terms and conditions contained in any order, offer, acceptance or document of the Customer and all representations statements terms and conditions and warranties (whether express or implied) not otherwise embodied herein are expressly excluded to the fullest possible extent. The Vendor has made every effort to ensure the accuracy of the descriptions, illustrations and material contained in any catalogue, price list, brochures, leaflets or other descriptive matter provided by, or on behalf of the Vendor. However, any such descriptions represent the general nature only of the items described. Only where the Vendor has accepted an order for goods specified as so described or illustrated, shall this description from any order or agreement or amount to any representation or warranty. Otherwise, the use of such description will not constitute a contract of sale by description.
- QUOTATIONS AND ORDERS
Unless otherwise expressly agreed in writing the price of the Goods shall be that price charged by the Vendor at the date of delivery plus the amount which the Vendor is required to pay on account of any excise, or sales, use, service, value added, goods and service tax or like taxes or any other taxes or charges which may be established or levied by any governmental authority (domestic or foreign) upon the goods or any part thereof, or the manufacture, use, sale of, supply or delivery thereof, such amount can be recouped by the Vendor from the Customer at any time. The Customer is responsible for all freight costs incurred to deliver Goods to them. In the absence of nominated carrier the Customer agrees to use the carrier chosen by the Vendor. The Vendor reserves the right to increase the amount charged on any Invoice up to the minimum charge established by the Vendor from time to time.
- PRICES, GST, FREIGHT, AND INSURANCE
Unless otherwise agreed, all amounts owing to the Vendor on account of Goods supplied to the Customer on credit are due and payable by the last working day of the month following invoice. The Customer agrees the time is of the essence in regard to all amounts due to the Vendor and the Vendor may charged interest on overdue amounts and various late payment and other collection charges established by the Vendor from time to time.
- TRADING TERMS
The risk of loss or damage to the Goods passes to the Customer on the date and at time the Goods are removed from the Vendor’s warehouse for the purpose of delivery to the customer.
- RISK IN THE GOODS
The Vendor reserves the right to delivery Goods by installments. The Customer agrees that:
- the Vendor accepts no responsibility or duty to deliver but may elect to arrange delivery at its discretion and without liability and at the Customer’s cost and risk in all things;
- the Vendor will not be liable for delay, failure to deliver or inability to deliver;
- all products shall be deemed delivered as soon as they are ready for delivery;
- a charge will be made for frustrated delivery to cover the Vendor’s costs of attempts etc.
Terms of trade agreement (invoice) 0804
- the Vendor may elect to take back Goods in sealable condition, on terms agreed and a re-stocking fee of 15% of Invoice shall apply;
- the Vendor is under no obligation to provide a refund for Goods purchased; and
- any custom made Goods will not be returnable at all.
- RETENTION OF TITLE
- Even if the grants any credit facility and / or time to pay it is expressly agreed and declared that the Goods delivered by the Vendor to the Customer remains the sole and absolute property of the Vendor as legal and equitable owner until all monies owed to the Vendor has bee paid in full to the Vendor and the Customer grants permission to the Vendor to enter any property where any Goods is stored for the purpose of examining or recovering the Goods.
- The Customer undertakes that until it delivers the Goods to a third party it will store the Goods separately and in a manner which makes the Goods readily identifiable as the Vendors Goods.
- The Customer may transform the Goods into other Goods, or affix the Goods to other objects, in the ordinary course of the Customer’s ordinary business. However to the maximum extent legally possible, the Customer agrees that this activity alone will not in any way change the Vendor’s legal or beneficial ownership in the Goods.
- The Customer agrees that upon sale or disposition of any products prior to full payment, the Customer shall deposit all proceeds in a separate bank account, agree to not mix such proceeds with any other monies and the Customer shall account for same to the Vendor as fiduciary and bailee.
- The Customer’s right to possession of the Goods ceases if it does anything or fails to do anything which would entitle a receiver, a receiver and manager, and administrator or a trustee to be appointed in respect of the Customer, its undertaking or property or any part thereof, or entitle a person to present a creditor’s petition for the bankruptcy or winding up of the Customer.
The Customer agrees upon request to charge with payment all monies owed and / or owing to the Vendor from time to time in favor of the vendor.
- SECURITY FOR PAYMENT
- by way of fixed charge all its books of account, financial records, goodwill, documents of title and current and later acquired real property and intellectual property; and
- by way of a floating charge, the whole of its other undertakings, property and assets.
- This agreement shall be subject to the provisions of the Trade Practices Act 1974, as amended from time to time, except that to the extent permissible by law:
- Representations promises statements warranties and conditions regarding any Goods are expressly excluded.
- The Vendors liability for a breach of a condition or warranty implied into this contract by the Trade Practices Act (other than a condition implied by section 69) shall be limited to the repair or replacement or monetary compensation at the option of the Vendor.
- The Vendor does not warrant or guarantee that any goods manufactured, constructed or supplied by the Vendor which are based in whole or in part upon any designs, drawings or specifications supplied by or on behalf of the Customer will achieve any standard of performance whatsoever. Otherwise the Vendor warrants that any Goods sold by it will be free from defects in workmanship and material under normal use for a period of 12 months after delivery.
- This warranty does not cover any Goods accessories and parts which are not manufactured by the Vendor, and in that case the Customer will only have the benefit of the warranty (if any) of the manufacturer of such parts and accessories which forms part of the contract between the Vendor and the manufacturer. Nor does this warranty apply where, in the Vendor’s opinion, a defect has been caused by careless or improper handling, by non-adherence to operating instructions or by fair wear and tear.
- The Customer warrants that any goods manufactured by the Vendor which are based in whole or in part upon designs, drawings or specifications supplied to the Vendor, by or on behalf of the Customer, shall not infringe any copyright, letters. patent or registered designs.
If any term or condition is invalid or unenforceable in any jurisdiction is to be read down for the purposes of that jurisdiction if possible, so as to be valid and enforceable and is other wise capable of being severed to the extent of the invalidity or unenforceability, without affecting the validity or enforceability of that provision in any other jurisdiction. Any invalidity or unenforceability will not affect the validity or operation of any other provision except only so far as may be necessary to give effect to the construction of the other terms and conditions.
No waiver by the Vendor of any breach of these terms and conditions operates as a waiver of any other braeach, and the doing and / or omission of any act, matter or thing whatsoever by the Vendor, its employees or agents (which but for this clause ought or might amount to a waiver of the Vendor’s rights in respect of any such breach or default) does not operate as a waiver in any way of the Vendor’s rights and powers in respect of such breach or default