Terms and Conditions
All goods (“goods”) purchased from the Company are sold subject to the following terms and conditions (“Terms and Conditions”) and these Terms and Conditions shall prevail to the exclusion of all other terms and conditions whether expressed or implied, except only for such terms as are implied by or under any Act of Parliament or by or under any regulation and cannot be excluded.
Prices shall be in accordance with the current and applicable pricing at the date of invoice of the goods.
- All goods purchased shall be paid for within thirty (30) days of the date of invoice. Credit limits will be negotiated.
- The Company shall be entitled to charge the Customer interest on any amount owing beyond thirty (30) days at the rate of 10% per annum.
- All payments made by cheque or electronic transfer are received by the Company conditional upon the cheque or electronic transfer being honoured and be deemed paid when cleared by the Bank.
- Goods will be dispatched according to the Company’s chosen transport agent or chosen method. Risk in the goods will be that of the Company from the point of despatch to the point of delivery to or on behalf of the Customer.
- The Customer shall accept delivery of all goods held by the Company in respect of any order.
- All postage, shipping and handling costs are to be paid by the Customer and will be added to the invoiced price.
- The Customer shall be obliged to notify the Company in writing within seven (7) days of delivery of any goods sold by the Company to the Customer of any concerns with regard to quantities, weights, colours, quality, grade or size of the goods, failing which the Customer will be deemed to have accepted such goods as supplied by the Company to the Customer.
- Any defective Goods must be returned to the Company within seven (7) days from the date of delivery of the goods to the Customer.
- Goods sold on approval are to be returned within seven (7) days of the date of delivery of the goods to the Customer, failing which such goods will be regarded as having been sold to the Customer with payment being due within thirty (30) days from the date of delivery of the goods to the Customer.
- Goods sold on consignment shall only be retained by the Customer for a period of seven (7) days or such extended period as the Company may, in writing, agree and shall be returned to the Company within the said period, failing which same shall be regarded as having been sold to the Customer with payment being due within a period of thirty days (30) days from the date of delivery of the goods to the Customer.
- In the event the Customer has agreed to sell the Goods or any part thereof to another person or to purchase the goods itself during the period of consignment, the Customer must immediately notify the Company thereof whereupon the Company shall be entitled to immediately render an invoice to the Customer for the sale price thereof.
- Any goods sold by sample or description will be deemed to be as ordered and supplied by the Company to the Customer and to the description as set out in the relevant Company’s order unless the Customer notifies the Company in writing of any concerns it may have with regard to the same within seven (7) days from the date of delivery of the goods to the Customer.
5. Cancellation by Company
- The Company reserves the right to cancel this contract or any order at the sole discretion of the Company without giving any reasons therefore.
- If the Company cancels this Contract as contemplated in Clause 5.1 above, any prepaid monies will be immediately refunded by the Company to the Customer and the Customer will have no claims against the Company, its directors and members of whatsoever nature arising out of such cancellation and the Customer hereby jointly and severally releases and indemnifies the Company, its directors and members against any such claims.
If the Customer defaults in any payment then the Company may:
- require payment be made forthwith of all amounts owing by the Customer to the Company, whether or not such amounts are then due;
- suspend further deliveries to the Customer until all amounts owing, including collection fees, interest and legal costs, have been paid;
- terminate any agreement to supply goods which have not been delivered.
7. Reservation of Title
- Title in any goods sold to the Customer shall remain the property of the Company until the full purchase price is received by the Company.
- The Customer shall have the right to resell the goods, but only in the capacity as bailee, trustee and fiduciary agent for the Company in the ordinary course of its business.
- Until payment of the full purchase price is received by the Company the Customer shall retain the Goods as bailee, trustee and fiduciary agent for the Company.
- The Customer shall store goods sold by the Company in such manner which enables all goods in respect of which the full purchase price has not been paid, to be easily identifiable and shall hold such goods as bailee, trustee and fiduciary agent for the Company.
- The Customer hereby irrevocably authorises the Company to take back goods in respect of which the full purchase price has not been received by the Company, without any notice, in the event that the Customer fails to make any payment when it is due. The Customer authorizes the Company to enter onto any land on which the goods are left and remove the goods.
- The Customer hereby releases and indemnifies the Company and any servant or agent of the Company from any claim whatsoever for any loss or damage caused by the Company or its servants or agents in enforcing the Company’s rights under this provision and any claims arising out of or in respect of the exercise or attempted exercise of such right which may be made against them.
- For the purpose of recovery of any goods which remain the property of the Company the Company may (without being responsible for damage thereby caused) at any time and by its servants or agents with vehicles enter upon any premises where the Goods are stored or where they are reasonably thought to be stored and may resume possession of them and remove them from such premises.
- The Company may without notice to the Customer at any time and without prejudice to any other rights which it may have against the Customer terminate any Contract connected with the Goods if any monies due and payable by the Customer to the Company are not paid on due date and/or the Company receives notice of or reasonably believes that a third person may attempt to levy execution against the Goods, the Customer is insolvent (within the meaning of the Corporations Law) bankrupt or the Customer has entered into any arrangement or composition with its creditors, gone into liquidation or has appointed a Receiver, Receiver and Manager or Administrator. If the Company retakes possession of goods pursuant to its rights hereunder any contract for sale between the Company and the Customer is thereby terminated and the Company has the right to resell such Goods without reference to the Customer.
- The Customer shall hold any moneys received by the Customer in payment in part or in full for the Goods supplied for the benefit of the Company, and pay same to the Company in due course. Such monies shall be held by the Customer on trust for the Company and placed in a separate account from its own monies (the “Proceeds Account”) and the Customer shall maintain proper records for the Proceeds Account.
- The Customer acknowledges that the Company may trace the Proceeds in equity.
8. Personal Properties Securities Act
- The Customer acknowledges and agrees that these Terms and Conditions will constitute a security agreement as envisaged under section 20 of the Personal Properties Securities Act 2009 (“PPSA”) and that such security interest will exist in all goods (and the proceeds of the sale of any goods) which have been supplied by the Company to the Customer previously and further with respect to all future goods as may be supplied by the Company to the Customer (and the proceeds of any sale of such goods).
- The Customer undertakes to execute all and any documents and to carry out such further acts as the Company may request of the Customer to enable the security interest granted to the Customer under these Terms and Conditions under the PPSA to be registered.
- The Customer agrees to waive its rights under the below-mentioned provisions of Chapter 4 of the PPSA until Title in the Goods sold by the Company to the Customer has passed.
- to receive a notice of intention of removal of an accession under section 95;
- to receive a notice that the Company has decided to enforce its security interest in accordance with land law under section 118;
- to receive notice of the enforcement of the security in liquid assets under section 120;
- to receive a notice of enforcement action against liquid assets under section 121(4);
- to receive notice to seize collateral under section 123;
- to receive notice of enforcement of security interest in liquid assets under section 125;
- to receive notice of disposal of Goods by the Company if the Company itself intends purchasing the Goods under section 129;
- to receive notice to dispose of goods under section 130;
- to receive a statement of account after the disposal of goods under section 132(2);
- to receive a statement of account if no disposal of goods has occurred in each 6 months period under section 132(4);
- to receive notice by the Company of its proposal to retain goods under section 135(2);
- to object to a proposal by the Company to either dispose of or retain the goods or any goods under section 137(2);
- to redeem the goods under section 142;
- to reinstate the security agreement under section 143;
- to receive notice of a verification statement under sections 157(1) and 157(3).
- The Customer further acknowledges and agrees that any rights which the Company may have in addition to those under Chapter 4 of the PPSA will continue to apply.
- The Customer acknowledges and agrees that until ownership of the goods has passed it must not give to the Company written demand or allow any other person or entity to give to the Company written demand requiring the Company to register a financing change statement under the PPSA. The Customer further acknowledges and agrees that it will not enter into or allow any other person or entity to enter into the register of Personal Properties Securities a financing change statement under the PPSA.
- The Customer acknowledges and agrees that it has received good and proper value as at the date of the first delivery of goods from the Company and that it has not agreed to postpone the time for the attachment of the security interest (as defined in the PPSA) granted to the Customer under these Terms and Conditions.
- The Customer hereby irrevocably grants to the Company full right to enter upon the Customer’s property or premises, without notice and without being in any way liable to the Customer or any third party, if the Company has cause to exercise any of its rights under section 123 and section 128 of the PPSA, and the Customer shall indemnify the Company, its or its Directors jointly and severally, any claims made by any third party as a result of such entry to such premises.
9. Cancellation by Customer
The Company shall be entitled to require that the Customer pay all costs, expenses and damages incurred by the Company as a consequence of the cancellation, variation or suspension of the order by the Customer.
10. Limitation of Liability
- Any claim for damages howsoever arising against the Company, its directors, members, employees, subcontractors or agents relative to their conduct or in respect of the goods supplied, shall be limited to the invoice price of the goods concerned and the Customer hereby jointly and severally releases and indemnifies the Company, its directors, members, employees, subcontractors or agents against any such claims. At the Company’s option, the Company shall be entitled to offer to replace the goods concerned.
- The Company shall not be liable for delay in delivery arising from any cause, including negligence on its part or failure by the Company to deliver all of the goods ordered, the Customer acknowledging that the Company is dependent on third party suppliers for the manufacture of such goods. The Customer shall be obliged to accept and pay for such goods as and when required under the terms of the invoice. In no event shall the Company be responsible for any loss of profits, penalties, expenditure or damages incurred by the Customer arising out of any delay in delivery.
- Any claim by the Customer for failure to deliver, short delivery, supply of incorrect goods, faulty workmanship or pricing or calculation errors shall be made in writing within seven (7) days from the date of delivery of the goods to the Customer.
- If the Customer shall in any respect default in the payment for any goods or in any other of its obligations to the Company, the Customer hereby indemnifies the Company against all losses, damages, costs, expenses or otherwise which may be incurred by the Company (inclusive of all collection and legal costs on the Attorney/Client scale, commissions and disbursements) by reason of default of the Customer.
- The Customer warrants that all statements contained in this Credit Application Form are true and correct in every particular.
The Customer shall not be entitled to use or disclose any intellectual property of the Company without the Company’s express written consent in writing having been first had and received.
These terms and conditions of sale may be assigned by the Company without the consent of the Customer and the Customer acknowledges and agrees to be bound to any assignee under these terms and conditions of sale.
13. Trustee Liable
The Trustee of any trust agrees that the Trustee shall be liable in their own capacity and as Trustee of such trust to the Company under these terms and conditions of sale.
14. Intellectual Property
- Save and except with the express written permission of the Company, the Customer may not identify any goods by reference to the name of the manufacturer if the manufacturer thereof is not the Company nor is the Customer authorised to use any registered trade mark of the Company without the Company’s express written consent.
- The Customer is further only entitled to use any promotional material of the Company with the Company’s express written consent.
15. Governing Law
The applicable law governing these terms and conditions of sale shall be that of the State of Western Australia.