Terms & Conditions
TERMS AND CONDITIONS OF SALE
CLAUSE 1 - INTERPRETATION
1.1_ “The Company” means the seller named overleaf and any of its subsidiaries as defined in the Companies Code.
1.2_ “Goods” means the goods supplied pursuant to the sale by the Company.
1.3_ “Purchaser” means the person or entity described overleaf.
1.4_ “Gap amount” means the difference between debt collection expenses (includes debt collection charges, legal fee,
Court costs and anyother associated costs) and the expenses allowed by the courts.
CLAUSE 2 - OFFER AND ACCEPTANCE
2.1 Any quotation made by the Company is not an offer to sell and no order given in pursuance of any offer shall bind the Company until accepted by it in writing. Unless otherwise agreed in writing all orders are subject to acceptance by the Company within 30 days of receipt by the Company of the Purchaser’s order and these terms and conditions shall be deemed to be incorporated in any agreement between the Company and the Purchaser. Any terms and conditions contained in any order of acceptance or invoice of the Purchaser and all representations, statements, terms, conditions and warranties (whether implied by statute or otherwise) not embodied therein are expressly excluded to the fullest extent permitted by law.
CLAUSE 3 - DELIVERY
3.1 Any date quoted for delivery is an estimate only and unless a guarantee shall have been given by the Company in writing providing for liquidated damages for failure to deliver by the quoted date the Company shall not be liable to the Purchaser for any loss or damage howsoever arising for failure to deliver on or before the quoted date. The Purchaser shall accept and pay for goods if and when tendered notwithstanding any failure by the Company to deliver by the quoted date.
3.2 The company reserves the right to deliver by installments. If delivery is made by installments the Purchaser shall not be entitled: (i) to terminate or cancel the contract, or (ii) to any loss or damage howsoever arising for failure by the Company to deliver any installment on or before the quoted date.
CLAUSE 4 - CANCELLATION
4.1 Any order may be cancelled by mutual agreement and in the event of such cancellation the Purchaser undertakes to reimburse and indemnify the Company for any costs, expenses or charges incurred by the Company in preparation for and in the execution of an order which without limiting the generality thereof shall include an amount equal to fifty per centum of the net profit of the order had the order not been cancelled.
CLAUSE 5 - DESCRIPTION AND SPECIFICATIONS
5.1 Whilst every effort is made to ensure their accuracy the descriptions, illustrations and material contained in any catalogue, price list, brochures, leaflets or other descriptive matter provided by or on behalf of the Company represent the general nature of the items described therein and shall not form any part of any order or agreement or amount to any representation or warranty. The Company reserves the right to modify the design of goods without notice.
5.2 The Purchaser warrants that any goods manufactured, constructed or supplied by the Company which are based in whole or in part upon designs, drawings or specifications supplied to the Company by or on behalf of the Purchaser shall not infringe any letters patent or registered designs. The Purchaser shall indemnify and keep indemnified the Company, its servants and agents against any action, loss, cost claim or damage that may be brought against or suffered by the Company, its servants or agents for any breach of this warranty.
5.3 The Company does not warrant or guarantee that any goods manufactured, constructed or supplied by the Company which are based in whole or in part upon any designs, drawings or specifications supplied to the Company by or on behalf of the Purchaser will achieve any standard of performance or any capacity whatsoever.
CLAUSE 6 - MINIMUM CHARGE
6.1 The Company reserves the right to increase the quantity of goods ordered up to the minimum quantity of goods set by the Company as at the date of the Order.
CLAUSE 7 - WAIVER
7.1 Failure by the Company to insist upon strict performance of any term or condition hereof shall not be deemed a waiver thereof or of any rights the Company may have and shall not and nor shall any express waiver be deemed to be a waiver of any subsequent breach of any term or condition.
CLAUSE 8 - GUARANTEE AND WARRANTY
8.1 Except to the extent that conditions, warranties and rights implied by Statute cannot be excluded, then any representations, promises, statements, warranties and conditions (whether statutory, expressed or implied) regarding any goods or services supplied by or on behalf of the Company, which without limiting the generality of the foregoing shall include conditions or warranties as to quality or fitness for any particular purpose are expressly excluded. The Company shall not be liable for any loss or damage whatsoever and howsoever arising whether direct, indirect or consequential or in respect of any claim whenever and however made for any loss, damage, deterioration, deficiency or other fault or harm in the goods manufactured, work executed or services provided by or on behalf of or in any arrangement with the Company or occasioned to the Purchaser or any third or other party or to his or their property or interest and whether or not due to the negligence of the Company, its servants or agents except in the following circumstances and subject to the following limitations:
(i) As soon as any of the facts or matters which form any part of the claim or complaint become known to the Purchaser he shall within fourteen (14) days (being the guarantee period) notify the Company in writing of the same.
(ii) The Company’s liability shall be limited in all circumstances to the repair or replacement (at the option of the Company) of any goods manufactured by it which are returned only upon the written authority of the Company being adequately packed for transport and which are returned freight paid to the Company within the Company’s guarantee period covering the goods and which the Company accepts as having been defective in materials or workmanship; the rendering again of the services or the current market value either.
8.2 The Company shall not be liable in any circumstances for any:
(i) defects or damage caused in whole or in part by misuse, abuse or neglect on the part of the Purchaser;
(ii) goods not manufactured by it but the Company will endeavour to pass on to the Purchaser the benefit of any claim made by the Company and accepted by the manufacturer of such goods under a warranty given by that manufacturer;
(iii) technical advise or assistance given or rendered by it to the Purchaser whether or not in connection with the manufacture, construction or supply of goods for or to the Purchaser.
CLAUSE 9 - INSOLVENCY AND DEFAULT
9.1 If the Customer commits or is involved in any act of insolvency, then the Company may deem this to be a default under these Terms and may, at its election, suspend its obligations under or terminate these Terms and/or any related Order or contract without prejudice to any rights it may have. An act of insolvency includes bankruptcy, liquidation, receivership, administration, failure to comply with a statutory demand, a suspension of payment of debt or the bringing of a winding up application.
CLAUSE 10 - TITLE
10.1 Title to the goods to be delivered will pass to the Purchaser when payment in full for the goods has been received by the Company. Until the date of final payment:
(i) The Purchaser shall store the goods so that they are clearly identified as the property of the Company.
(ii) The Purchaser shall hold the goods as agent and bailee for the Company.
(iii) The Purchaser or any other person shall not establish a lean or create a charge or in any way encumber such goods.
(iv) The Purchaser shall hold the proceeds of sale of goods in trust for the Company.
CLAUSE 11 - FAILURE TO PAY
In addition to any other step available to the Company under this terms or otherwise, in the event that the Customer fails to pay for the goods in accordance with any credit terms, any or all of the following shall occur:
(a) all amounts owing by the Customer to the Company shall become immediately due and payable;
(b) the Compaby shall be entitled to retake possession of the goods and for that purpose will be entitled to enter upon the Customer’s premises;
(c) the Company may cancel or alter the credit limit; may cancel any unfilled orders.
CLAUSE 12 - INSURANCE
12.1 The Company will at its cost insure the goods whilst in transit to the Purchaser, his carrier or agent.
CLAUSE 13 - RISK
13.1 Unless otherwise agreed in writing and notwithstanding the provisions of Clause 10 hereof all goods shall be at the Purchaser’s risk upon delivery to the Purchaser, his carrier or agent.
CLAUSE 14 - PAYMENT
14.1 Unless otherwise agreed in writing payment terms are net cash 30 days from the end of the month in which the goods are delivered to the Purchaser, his carrier or agent. Payments may be made by bank deposit, cheque, cash and if agreed by Master / Visa cards. Credit Card payments will incur charges.
CLAUSE 15 - PRICE
15.1 Unless otherwise expressly agreed in writing the price of the goods shall be that price charged by the Company at the date of delivery including the amount which the Company is required to pay on account of any excise, or sales taxes or any other taxes or charges which may be levied by any governmental authority (domestic or foreign) upon the goods or any part thereof, or the manufacture, use, sale of or delivery thereof.
CLAUSE 16 - GENERAL
16.1 Where the Purchaser consists of two or more persons or entities, the conditions of this Agreement shall bind them and any two or more of them jointly and each of them severally.
16.2 In this Agreement except to the extent that the context otherwise requires:
(i) Words importing the singular included the plural and vice versa and words importing the gender include other genders.
(ii) A reference to any party to this Agreement or any other document or agreement includes its successors and permitted assigns.
(iii) In the interpretation of this Agreement, headings shall be disregarded.
(iv) References to any currency shall be construed as references to Australian currency.
CLAUSE 17 - FORCE MAJEURE
17.1 The Company shall be relieved from its obligations under this Agreement, if and to the extend it shall be unable to carry out all or any of its obligations hereunder for any cause beyond its control, including but not limited to an Act of God, industrial dispute, wars, governmental restrictions, or controls or the non-availability of goods.