Terms & Conditions of Trading
These terms and conditions shall apply to the exclusion of all others including any Terms and Conditions of the Customer (whether on the Customer’s order form or otherwise). No goods or services will be supplied by the Seller on any terms or conditions other than those set out herein and by taking delivery of the goods the Customer shall be deemed to agree to these Terms and Conditions. For the purposes of these Terms and Conditions the Seller shall mean and include the party named, and include the party to whom goods and services are sold and who has an account with the Seller Company.
The Customer agrees to comply with the trading terms of the Seller and payment for goods or the Customer shall make services to the Company thirty (30) days from the date of the statement.
- The Customer will be deemed to have accepted the goods as being in accordance with its order unless it notifies the seller in writing of its claim within 7 days of receipt of the goods.
- No return of allegedly defective or faulty goods will be accepted by the Company unless the Company has given prior written authorisation for the return.
All warranties whether expressed or implied and whether statutory or otherwise with regard to the goods supplied by the Seller as to quality, fitness for purpose or any other matter and hereby excluded except insofar as any such warranties are incapable of exclusion at law.
- Freight Costs
The Seller shall not be liable for freight costs on goods returned to it by the Customer.
Should payment remain outstanding beyond the Seller’s payment terms as outlined in Clause 2, the Customer is liable for all costs (on a solicitor/own client basis) and mercantile agents fees incurred by the Seller in recovering the amount outstanding.
- Change of Ownership
The customer agrees to notify the Seller in writing of any change of ownership of the customer within 7 days from the date of such a change and indemnifies the Company against any loss or damage incurred by it as a result of the Customer’s failure to notify the Company of any change.
- Caveat Clause
The seller is entitled to request from the Applicant security to secure any credit facilities provided to the Applicant. The Seller, for the purpose of securing any credit facilities provided to the Applicant, needs to take charge over all real and personal property owned by the Applicant for an amount equal to any amount that the Applicant owes the Seller from time to time under the credit facilities or otherwise, and the Applicant will execute any necessary documents for this purpose.
Orders placed with the Seller cannot be cancelled without the written approval of the Seller. In the event that the Seller accepts the cancellation of any order placed with it shall be entitled to charge a reasonable fee for any work done on behalf of the Seller to the date of cancellation including a fee for the processing and acceptance of the Customer’s order and request for cancellation.
The Customer hereby acknowledges that the Seller has a lien over all goods in its possession belonging to the customer to secure payment of any or all amounts outstanding from time to time.
- Title to Goods
- Notwithstanding anything to the contrary express or implied, property in the goods shall remain with the Company and shall remain with the Company and shall not pass to the Customer until the Company has received payment in full for the goods and the Customer has discharged in full all its accounts with the Company.
- if payment is made by the Customer by way of cheque ownership shall not pass to the Customer until the cheque has been honored. The Company at its discretion may charge a $45 fee on any dishonored cheques. Payments made by credit card will bear a 2% processing fee.
- Until the goods are paid for in full the Customer shall hold the goods as a Trustee for the Seller.
- In the event that the Customer fails to pay the Company for the goods by the due date required for payment under the Company’s terms of trade, the Customer (without prejudice to the Company’s rights as an unpaid Creditor or any of its other rights and remedies to retake possession of the Company’s goods from the Purchaser) hereby agrees to deliver up the goods to the Company upon demand by the Company and consents to the Company retaking possession of the goods which remain unpaid.
- The parties acknowledge that by supplying or accepting goods on the terms herein specified, it is not intended to create a charge, mortgage or other security interest over any of the goods supplied.
- Power to Sell Goods
Nothing herein contained shall prevent the Customer from selling the goods to any third party provided that the proceeds of any such sale shall be held in trust by the Customer for the Seller until the Seller has received payment in full for the goods.
A Certificate signed by an officer of the Seller will be prima facie evidence of the Customer’s liability to the Seller at the date of the Certificate.
The proper law of all contracts arising between the Seller and the Customer is the law of the State of Victoria and the parties agree that all claims and disputes relating to the goods sold shall be determined in the Court of competent jurisdiction nearest Melbourne.
Subject always to any written quotation from the Company, all prices are subject to change without notice and are not guaranteed. All orders will be shipped at prices in effect at the time of shipment.
- Shipments and part Shipments
Orders which have been accepted by the Company will be filled to the extent of the Company’s stock on hand and any outstanding balance will be forwarded as soon as possible. Unless specifically requested otherwise each delivery shall be deemed to be sold under a separate contract and failure to deliver any outstanding balance shall not entitle the purchaser to repudiate the contract.
- Payment of interest
In addition to all other rights which are given or conferred by law. The Company at its discretion may charge interest at a rate equal to 2% in excess of its overdraft interest rate by its bankers. Any payments made by the purchaser will be allocated firstly against any outstanding interest charges.
Risk with respect to the products supplied shall pass to the customer immediately at the time of delivery. Until such time as the full amount owing by the customer to the Company in relation to the goods supplied is paid in full, the customer shall hold the goods as Trustee for the Company.
Agreed returns are subject to a handling fee of 10%. Unauthorised returns will not be accepted by the Company and the carrier shall be instructed to return such goods to the customer at the customer’s expense.
- Information . . . Technical Specifications . . . Application
All technical data and or product performance contained in leaflets … price lists … advertising material and any discussions the customer may have with the Company are approximate only and are intended to be by way of generally describing the goods and are not guaranteed but subject to change without notice.
The customer has a duty of care in the application of the purchase products and the Company shall be held harmless where the products are applied without reasonable care being exercised.
To the best of the Company’s information and knowledge its goods do not infringe any third parties Australian patent rights. The Company shall have no liability to the purchaser or a customer of the purchaser where any claim or proceedings are brought against the purchaser or its customer based upon any allegation that the Company’s goods infringe such rights.
- Set off
Complaints in respect of alleged faulty goods shall not entitle the customer to withhold payment of any sum which has become payable to the Company and shall not give rise to any right of set off until such amount to be allowed has been agreed to by the Company.
- The Company will do its utmost to keep to any stated delivery dates the time quoted for delivery shall not be of the essence of the contract and the company shall not be liable for any loss injury damage consequent upon delay in or causes preventing the company from delivering the goods.
- Should the Company be delayed in or prevented from making delivery of the goods due to any causes whatsoever beyond the control of the Company. The Company shall be at liberty to cancel or suspend the order without incurring any liability.
- The Company shall in no circumstances entertain any claim for liability for failure of goods to reach their destination or for any damage discrepancy or shortage in the goods unless (i) the Customer notifies the Company and the carrier within 48 hours of the time of receipt of the invoice, (ii) a complete claim in writing is made within 7 days of such receipt and (iii) the Company or its agent and carrier shall be permitted to inspect goods at the Customer’s premises.
- The Company will apply a charge for each delivery.
- Customers Material
Any Customers’ material held on their behalf on the Company’s premises for processing or otherwise, shall be at the Customers’ own risk, and the Company shall be under no liability whatsoever for loss or damage howsoever caused, in respect to these materials.
If any provision of this agreement is deemed to be unlawful or unenforceable, such provision shall be severed from this agreement and all other provisions hereof shall remain in force.