TERMS AND CONDITIONS OF TRADE
Unless a contrary intention is clear, wherever appearing in these terms and conditions:
“goods” includes any services provided to you by us and includes all goods, collectively and individually, including components or parts thereof or any interest therein, supplied to you by us and for the purposes of clause 5 includes such goods where they are fixed or incorporated into any of your articles or the articles of any third party.
“we”, “us” and “our” includes our servants, agents, contractors and representatives and all of our parent and subsidiary companies and any other company that is a related body corporate under the provisions of the Corporations Act (as amended from time to time) or which is otherwise part of our “group” of companies from time to time. Invoices issued under these. Terms and conditions may in our discretion be issued in the name of any of the foregoing persons of entities.
1. Returns Policy
The goods are not supplied on a sale or return basis. Once we accept your order, you are obliged to take the goods in accordance with these terms and conditions (which will apply in full force unless otherwise expressly agreed by us in writing, and notwithstanding any terms to the contrary contained in your order), although property in the goods will only pass in accordance with the terms and conditions set out in clause 5 below. We may in the exercise of our discretion agree to accept the return of goods on terms and conditions to be nominated by us, including a re-stocking fee of up to 25% of the invoiced value of the goods.
(a) Prices charged will be those ruling at the date of order of the goods and are subject to change without notice. The ruling price list will be as published on our website as at the time of order. Such price list will prevail in the event of any inconsistency between the prices stipulated in that list and the prices stipulated in an order placed with us, unless and to the extent otherwise agreed by us in writing. Payment for the goods must be made prior to dispatch, unless and to the extent otherwise agreed by us in writing. Invoices will be deemed to be received by you on the day that they are faxed or emailed, if sent by facsimile or email, or on the day after they are posted, if sent by post.
(b) A non-refundable deposit comprising 25% of the purchase price (exclusive of GST ) will apply to all orders exceeding $20,000.00 (exclusive of GST).
(c) You will be in repudiation of your contract with us and all monies owing by you to us will become due immediately, and we will be able to immediately enforce our rights under clause 5, if:
- you commit any act of bankruptcy;
- a meeting of your creditors is called;
- a mortgagee or mortgagee's agent takes possession of any of your assets;
- a receiver of any of your assets is appointed;
- a petition to liquidate you is issued; or
- you otherwise come under any other form of external administration provided for in the Corporations Act.
(d) Interest on any overdue payments must be paid by you at the rate of 1.5% per month.
(e) Unless otherwise specified, the prices quoted are net, exclusive of Goods and Services Tax (“GST”). GST, where applicable, will be charged at the appropriate rate ruling at the date of invoice.
3. Delivery, risk & shortages
Delivery will be at the place you nominate or, if none is nominated, at your place of business. We will arrange for freight (and freight insurance if requested by you in writing) to deliver the goods to that place. You must pay to us all freight and insurance costs on demand. All risk in connection with the goods passes to you on delivery of the goods to our nominated freight carrier, you or your servant(s), agent(s) or nominated representative(s). If you would prefer to use a nominated carrier, you must provide us with their name and your account number, in writing. You will be responsible for the freight costs of that carrier and for arranging such insurances as you deem fit for the carriage of the goods. In that event, all risk in connection with the goods passes to you immediately upon collection of the goods by your nominated courier. If within 48 hours of us notifying you that goods are ready for despatch, we have not received from you sufficient forwarding instruction to enable us to despatch the goods, then you will be deemed to have taken delivery of the goods from the expiry of that 48 hour period and the goods will be at your risk from that time and unless otherwise agreed by us in writing you will be liable for monthly storage charges, payable on demand. Any claim concerning shortage(s) of goods on delivery must be made in writing within 14 days of delivery of the goods or it will be of no force or effect whatsoever.
4. Time of despatch
Any times quoted by us for completion or despatch of goods are from receipt by us of a written order from you. All such times are estimates only and do not give rise to any contractual obligation unless we have specifically contracted in writing to complete or despatch goods within a specified time or by a specified date. Any such contractual obligation is subject to us not being delayed by a change or lack of instructions from you or by an industrial dispute or by any other cause whatsoever beyond our reasonable control.
5. Retention of title
(a) Property in goods will not pass to you until all goods and any other amounts owing in connection with goods have been paid for in full.
(b) You acknowledge that until then you are in possession of the goods solely as bailee and that you hold the goods on trust for us.
(c) Your right to possession of the goods will cease if payment for the goods is due but not paid. In that event, we may enter any premises where the goods are or are reasonably thought to be and repossess them. If the goods are incorporated into or fixed onto another article or property, including real property, which does not belong to us, and they can be removed from that article or property without causing irreparable damage to any of its other parts, we will be entitled to remove and repossess the goods on the proviso that we repair any damage caused to that article or property in the process. Until property in goods supplied passes to you,
(d) Until you use or sell the goods, you must store them separately and so that they are clearly identifiable as our property.
(e) Where the goods are incorporated into fixed or your article(s), the resultant item will be entirely our property, and be held by you on trust for us, until you have made payment in full for the goods.
(f) Where the goods are fixed or incorporated into the article(s) of any third party, the resultant item will be owned in common by us and that third party, and be held by you on trust, until you have made payment in full for the goods.
(g) You may sell or use goods in the ordinary course of your business on the following conditions:
- You make the sale or use the goods as our agent and bailee.
- Subject to (h) below, the proceeds of sale or use are held by you on trust for us and must be kept in such a manner that they are clearly identifiable as ours.
- If you have not received the proceeds of sale or use, you will at our request immediately assign to us your rights in respect of such proceeds and their collection.
(h) In the case of the sale or use of any goods that have been fixed onto or incorporated into the article(s) of a third party, you only hold on trust for us such part of the proceeds of sale or use of that item as relates to the goods. Such part of the proceeds will be deemed to equal the invoiced value of goods which are fixed or incorporated into the article(s) of the third party.
6. Replacement or repair
If any goods are established to our satisfaction to be defective by reason of defective materials or parts or our bad workmanship, we will at our election either repair or replace the goods or such part thereof as we deem necessary. Unless otherwise agreed by us in writing, any claim made under this clause must be made in writing within 7 days of delivery of the goods or it will be of no force or effect whatsoever.
7. Drawings and specifications
Where you have signed or otherwise approved drawings and/or specifications for goods, you will be obliged to take delivery of and pay for those goods in full provided that they comply with the approved drawings and/or specifications, and notwithstanding any error or omission made by us in connection with the drawings and/or specifications.
We reserve the right to vary any quotation given by us in the event that an error is discovered in the quotation and notwithstanding that the quotation may have already been accepted. In such circumstances, the initial quotation will not be binding upon us.
9. Exclusion of liability
To the maximum extend permitted by law any liability on our part for defective goods will be strictly limited to the repair or replacement of goods pursuant to the above clause. Without limitation, we will not be liable to you for any economic or consequential loss or damage or for any loss of profits, production or business or for any other loss or expense whatsoever suffered by you in connection with or in consequence of any fault or defect in the goods or any act or omission (includinga negligent act or omission) on our part. All warranties, guarantees and other terms prescribed by legislation or created by common law or equity that are deemed to form part of the terms of sale of goods by us to you are hereby excluded to the extent that they are capable of being excluded at law.
10. Previous dealings and other documentation
No previous dealings will cause or effect a variation to these terms and conditions or be deemed to do so, nor will any term or condition set out in your order forms or other documentation. In the event of any inconsistency between the terms set out in such order forms or other documentation and the terms contained herein, the terms contained herein will apply unless and to the extent it has been otherwise expressly agreed by us in writing.
We may assign any of our rights arising under or in connection with this document without your consent, but you may only assign any of your rights arising under or in connection with this document with our prior written consent. In the event of an assignment by either us or you, the terms and conditions contained herein, including the guarantee set out above, will continue to apply as between us and you and will also apply to the assignee(s).
You must pay us all costs (including legal costs on an indemnity basis and all other debt collection costs including any debt collector’s costs or commissions) incurred by us in connection with either the recovery of any sums due by you under these terms and conditions or any default by you under these terms and conditions.
13. Fees and charges
We may in the exercise of our discretion charge you a periodic account administration fee in an amount from time to time determined by us, along with an administration charge for all cheques given by you to us that are dishonoured or returned by the bank with a notation “Present again” or “Refer to drawer”.
You hereby charge in favour of us all land owned by you now or in the future to secure payment of all monies which are owing or are claimed to be owing to us under these terms and conditions. You acknowledge that we may at our discretion register a caveat in respect of any such land to protect our interest in the land.
15. Joint and several liability
If there is more than one of you, you are jointly and severally bound by these terms and conditions. Likewise, if you place an order for goods acting on behalf of another person(s), you and that other person(s) will be jointly and severally bound by these terms and conditions.
16. Applicable law and exclusive jurisdiction
Unless otherwise agreed in writing by us, at our sole election the Courts of South Australia will have exclusive jurisdiction in relation to all matters whatsoever concerning these terms and conditions. You irrevocably waive any objection to the venue selected by us in relation to any legal proceedings concerning these terms and conditions. The law of the state of the venue chosen by us for any such legal proceedings will govern these terms and conditions.
Every provision of these terms and conditions is independent of one another. Any provision of these terms and conditions or any part thereof which is prohibited or unenforceable in any jurisdiction will be ineffective only to the extent of such prohibition or unenforceability, and the remainder of these terms and conditions will remain in force.
18. Use of personal information
(a) We collect the personal information contained in this document and any other personal information related or incidental to that for the purposes of: administering your account; providing goods; collecting payment for goods; and assessing and monitoring your credit worthiness including that of your directors or partners.
(b) We may collect additional personal information about you (or your directors or partners) from, and disclose such personal information to, other credit providers or credit reporting agencies for the purposes set out above.
(c) You acknowledge your consent to the use of the personal information referred to above for such purposes and any other related purposes which may be reasonably expected.