COMMERCIAL TERMS AND CONDITIONS OF SALE
These terms and conditions are current as at 1st July 2019.
1. Application
These terms and conditions, including any Credit Limits set by the Company, are effective from the date of acceptance by the Customer and may be amended or superseded from time to time by notice given by the Company by any means. Unless or except specifically excluded in this agreement. The Company and the Customer retain any rights and remedies available to them in any prior or pre-existing agreement. “Collateral” and/or “Goods” shall mean all goods and/ or services supplied by the Company to the Customer, or ordered by the Customer but not yet supplied, and includes goods described on any quotation, invoice, purchase order or any other document including any recommendations and advice and over which the Company may intend to register a Security Interest. “Price” shall mean the cost of the Collateral as referred to in the Company’s price lists and/or arrangements and shall be subject to change from time to time without notice.
2. Personal Property Securities Act 2009 (PPSA)
2.1 The Customer grants and the Company may register on the Personal Property Securities Register, a security interest in all and any sale of Goods under this agreement, including but not limited to intellectual property and all other present or after-acquired property.
2.2 The Customer warrants that all purchases under this agreement are for commercial purposes only and, accordingly, the provisions of the Consumer Credit Act will not apply.
2.3 The Customer and the Company agree to contract-out of the PPSA in accordance with section 115 of the PPSA to the extent that the section applies for the benefit of, and does not impose a burden on, the Company. The Customer waives its right to receive a copy of any Financing Statement or any Financing Change Statement registered by the Company in respect of the security interest created by these terms and conditions.
2.4 The Customer agrees to execute any documents, provide all relevant information and co-operate fully with the Company to ensure the Company has a perfected security interest in the personal property charged and, if applicable, a Purchase Money Security Interest (PMSI).
2.5 The Customer agrees to notify the Company of any change in the Customer’s structure or management including any sale or disposition of any part of the business of the Customer, any change in directorships, shareholders or management or change in partnership or trusteeship 7 days prior to any such change taking effect.
2.6 The Customer agrees that, until all monies owing to the Company are paid in full, it shall not sell or grant any other Security Interest in the Collateral.
2.7 The Customer agrees to reimburse the Company for all costs and/ or expenses incurred or payable by the Company in relation to registering, maintaining or releasing any financing statement or any other document in respect of any security interest under this agreement.
3. Quotations
3.1 Unless previously withdrawn a Quotation is valid for thirty (30) days or such other period as stated in it.
3.2 A Quotation is not to be construed as an obligation to sell but merely an invitation to treat and no contractual relationship shall arise from it until an order has been accepted by the Company.
3.3 The prices quoted in a Quotation are subject to variation without notice if the Company’s costs increase either before or after acceptance of any order.
3.4 All orders are accepted on the basis that the applicable price is that which applies at the date of dispatch not of order.
4. Payment Terms
4.1 At the Company’s sole discretion a deposit may be required prior to any supply.
4.2 Credit Account Customers are required to pay all amounts for purchases in full and with no deduction or set off no more than thirty (30) days from invoice date during which delivery of the goods is made.
4.3 In the event of a dispute, the complete undisputed portion of the account must be paid in accordance with the Payment Terms.
5. Outstanding Accounts
5.1 Unless otherwise agreed, interest shall be charged at the rate of 2% per month on all amounts outstanding after thirty (30) days from invoice date in which delivery was made. Interest charges will be calculated monthly on all outstanding amounts. Payment advice must clearly set out all invoices that are being paid. Any deductions made for recognised claims, where the credit notes have not yet been raised, must be accompanied by full details of the invoice numbers, credit note numbers and return authorisation numbers. Where this information is not supplied, at the Company’s option, payment may be allocated to the oldest outstanding item.
5.2 If any account remains outstanding for a period of sixty (60) days or more, without limiting any other rights and remedies the Company may have, the Customer hereby charges in the Company’s favour any real or personal property in which the Customer has an interest with payment of that outstanding account (Charge) and the Customer irrevocably authorises the Company to lodge a caveat to notify and protect that Charge in relation to any real property in which the Customer has an interest at the Customer’s cost.
5.3 If an account remains outstanding for more than sixty (60) days, the Customer authorises the Company to provide the Customer’s particulars and the particulars of the unpaid debt to any credit reporting agency to notify the default in payment.
5.4 All costs and disbursements incurred by the Company in recovering payment of any overdue account or enforcing our rights under these Terms, including without limitation, legal costs on a solicitor and client basis, are payable by the Customer (Recovery Costs).
5.5 We may retain any documents or Goods held on the Customer’s behalf pending payment of any outstanding account.
5.6 Amounts received by the Company may be applied first against interest, charges and expenses.
6. Statement of Account
6.1 Accounts are to be conducted on a monthly basis. The month end closes on the last calendar day and a statement will be forwarded at that time.
7. Claims
7.1 All Goods shall be inspected upon delivery and the Company shall be notified within forty-eight (48) hours of any defects, short deliveries or any other failure to fulfil any quotation or order.
7.2 Should the Customer fail to notify the Company within the specified period then the Goods shall be deemed to be in compliance with the order and free from any defect whatsoever.
7.3 The Customer will within a reasonable time following delivery grant the Company access to the Goods in order to inspect for any alleged defects.
7.4 Goods accepted as faulty Goods will be credited to invoice value or replaced on return of such Goods to the Company’s warehouse.
7.5 No responsibility will be accepted for the cost of any repairs or alterations executed without previous consent in writing.
8. Returns
8.1 Goods are offered on a sale or return basis subject to the following conditions:
(a) Returns may be accepted subject to a minimum handling charge of $50 or 20% (whichever is greater) of total saleable material returned;
(b) Returns may be accepted up to 90 days from the date of delivery;
(c) Returns will only be accepted if Goods are in saleable condition, includes packaging;
(d) Application to return Goods must be made in writing and directed to the Credit Department for approval prior to any physical return of Goods. On approval, the Customer will be issued with a ‘Return Authorisation Number’;
(e) All physical returns must have the ‘Return Authorisation Number’ clearly marked on the paperwork accompanying the Goods. No returns will be accepted unless this condition is satisfied;
(f) Returned Goods must be satisfactorily packed and received by the Company in perfect and resalable condition;
(g) Original invoice numbers must be quoted on all return requests
(h) Return freight is at the Customer’s expense;
(i) All returns must reach the Company within the date stipulated on the ‘Return Authorisation Number’. Failure to return the goods within the allowable period will lead to cancellation of the return request.
(j) All items specially manufactured to the Customer’s requirements not included in the Company’s standard price list or catalogues are sold on a ‘non-returnable’ basis. Products not manufactured with our standard finish, i.e. chrome plate fall into this category.
(k) The Company will not accept the return of Goods specifically purchased, manufactured or machined or cut to size to the Customer’s specification.
8.2 Failure to comply with these requirements will result in non acceptance of the return Goods being returned to the sender, freight forward.
9. Delivery
9.1 Unless otherwise specified, all Goods are quoted free into store (FIS).
9.2 No responsibility will be accepted for breakage, damage or loss in transit and the Company does not undertake to replace losses in transit at the invoice price unless replacement can be made without increased cost to the Company.
9.3 Any delivery times quoted are dated from receipt by the Company of a written order. All such times are to be treated as estimates only, involving no contractual obligation, unless a guarantee in writing has been given by the Company providing for delivery on a specified date.
9.4 The Company does not accept responsibility for delays arising from strikes, lockouts, trade disputes, fires, accidents or other contingencies beyond the Company’s control.
9.5 Orders below $200 incur a processing charge of $20.00.
9.6 The Company shall not be liable for any loss or damage including consequential loss or damage arising from delay in delivery or failure to deliver Goods in either whole or in part due to circumstances beyond its control.
9.7 The Company’s obligation to deliver shall be discharged on arrival of the Goods at the Customer’s nominated delivery destination or nominated agent or carrier. If the Customer is unable or unwilling to accept physical delivery of the Goods when they are delivered the Company shall be entitled to charge a fee for the delay suffered or to arrange storage of the Goods at the Customer’s risk and cost including all transportation, storage and other consequential costs.
10. Goods and Services Tax
10.1 All prices quoted exclusive of GST. GST will be shown on all invoices as per legislative requirements.
11. Stop Supply
11.1 The Company reserves the right to withhold supply to any Customer who trades outside of these Terms.
12. Retention of Title
12.1 Title in all the Collateral supplied shall remain vested in the Company and shall not pass to the Customer until all monies owing to the Company by the Customer together with all collection, repossession and/or legal costs incurred, have been paid in full. Until title passes to the Customer, the Customer acknowledges that these conditions create, in the Company’s favour, a PPSA purchase money security interest in the Collateral and any proceeds of their sale.
12.2 The Company shall retain an equitable interest in the Collateral, whether separate or co-mingled or accessioned, which shall be stored in such a manner as to be clearly identifiable as the property of the Company, until title has passed to the Customer and further, upon re-sale of the Collateral by the Customer, the Company shall have the right to trace any proceeds of sale to the extent that they relate to its Collateral which are incorporated.
12.3 If payment has not been received, the Customer will transfer to the Company all of its rights in respect of the sale price.
12.4 The Company may demand at any time until title has passed to the Customer that the Customer returns the Collateral or any part of them.
12.5 In the event that the Customer defaults in the payment of any monies owing, the Company and its employees or agents shall have the right to enter without notice upon the Customer’s premises or any other premises where the Goods are known to be stored to repossess the Goods and for this purpose the Customer shall grant reasonable access rights to the Company, its employees or agents shall be entitled to do all things required to secure repossession.
12.6 We reserve the following rights in relation to all Goods provided by the Company until all amounts owing by the Customer to the Company in respect of those Goods are paid in full:
(a) ownership of the Goods;
(b) to enter your premises (or the premises where the Goods are located) without liability for trespass or any resulting damage to retake possession of the Goods; and
(c) to keep or resell any of the Goods so repossessed.
12.7 You agree to:
(a) hold the Goods as a bailee for the Company;
(b) keep the Goods separate from other goods; and
(c) label the Goods (or not remove labels) so that they are identifiable as our Goods.
12.8 In respect of the resale of the Goods pursuant to this clause 12, we will apply the net proceeds of sale firstly towards the payment of the unpaid invoice with respect to those Goods, then towards any other unpaid invoices, then towards Recovery Costs and if there is any surplus, the surplus will be paid to the Customer. If there is a deficiency, we may recover the deficiency from the Customer as a debt.
12.9 You are at liberty to sell the Goods in the ordinary course of business, provided that the money resulting from the sale will:
(a) be held in a separate account in trust for the Company;
(b) not be mingled with other monies; and
(c) not be placed into an overdrawn account.
12.10 If the Customer uses the Goods in some manufacturing or construction process whether for the Customer or a third party, then the Customer agrees to hold such part of the proceeds of such manufacturing or construction process as relates to the Goods in trust for the Company. Such part will be deemed to equal in dollar terms to the amount owing by the Customer to the Company at the time of receipt of such proceeds.
12.11 Notwithstanding anything contained in these Terms the Customer accepts all risk of loss or damage to the Goods, whether caused by the Customer or not, upon delivery of the Goods and will further indemnify the Company against all claims demands suits and actions for loss or damage caused by or arising from the handling, transport, storage, display or use of the Goods after the Customer has taken possession of the Goods.
13. Risk
13.1 Notwithstanding Retention of Title provisions as per clause 12 hereof, the risk in Collateral purchased shall pass to the Customer upon delivery to the Customer or its agent or a carrier nominated by the Customer.
13.2 If any of the Goods are damaged or destroyed prior to the title in them passing to the Customer, the Company is entitled, without affecting any other rights and remedies under any agreement, to any insurance proceeds payable for the goods.
14. Liability
14.1 Unless specifically agreed in writing, under no circumstances does the Company undertake liability for any loss or damage to persons or property of any nature or due to any cause or for any amount as a result, direct or indirect, of any defect, deficiency or discrepancy in Goods or materials sold or supplied by the Company in this respect, all conditions, warranties and liabilities, express or implied, statutory or otherwise not contained herein are expressly negatived. The Company gives no warranty and it is not a condition for the agreement that the Goods supplied shall be reasonably fit for the purpose for which the Customer requires the Goods or for any particular purpose.
14.2 The Company endeavours to keep delivery dates, however where a delivery is delayed for any reason whatsoever, the Customer will not be entitled to claim for any loss or damage (whether direct, indirect, consequential or special), or cancel, rescind or terminate the agreement.
14.3 This indemnity applies to Goods the Company has supplied, that are on loan to the Customer, or are in the Customer’s possession for demonstration or training purposes.
14.4 The liability of the Company to the Customer for any reason related to the performance of the Goods under this Agreement shall be limited to the replacement or repair of the Goods or the amount paid or payable by the Customer in respect of the Goods.
15. Insurance
15.1 Any property of the Customer (being property other than the Goods the Company are providing as part of an order) in the Company’s possession, custody or control for whatever purpose remain at the Customer’s risk as regards loss and damage and the Customer agrees to effect and maintain appropriate insurances against such loss and damage.
15.2 The Customer shall be liable for and must maintain at the Customer’s own cost a policy of insurance with a reputable insurer to cover all such risks as may reasonably arise including public liability for all Goods which are on loan to the Customer or in the Customer’s possession for the purpose of demonstration or training. In relation to public liability such insurance shall be for an amount not less than $10,000,000.
16. Acceptance
16.1 No binding agreement shall be deemed to have been effected by the acceptance on the part of the Customer of a quotation or offer made by the Company until such agreement shall have been confirmed by invoice or in writing by the Company. The Company’s quotation, the order, and the Company’s written acceptance shall constitute the whole agreement and all representations, warranties, conditions and liabilities, statutory or otherwise, not contained therein are expressly excluded. Any conditions attached to an order contained in any written or printed document of the Customer shall not apply unless accepted in writing by the Company.
17. Warranty
17.1 The Company warrants that Goods supplied shall be of merchantable quality.
17.2 The Company does not warrant that the Goods are fit for a particular purpose and, except or unless otherwise stated herein, warranties relating to title, defects or conformity of the Goods are expressly excluded.
17.3 Any costs associated with the return of Goods for the purpose of a warranty claim shall be the responsibility of the Customer.
18. Cancellation
18.1 The Company may cancel the delivery of Goods at any time before delivery by giving the Customer notice by any means. The Company shall not be liable for any loss or damage arising from such cancellation.
18.2 In the event that the Customer cancelled delivery of Goods the Customer should be liable for any costs incurred by the Company up to the time of the cancellation including its loss profit and restocking fees.
18.3 Orders can be cancelled by the Customer with the Company’s consent and upon terms that will indemnify the Company against all losses.
18.4 Goods or materials ordered in error or in excess cannot be returned to the Company for credit or exchange except by special arrangements.
18.5 Orders or balances of orders may be cancelled at the Company’s option in the event of any failure by the Customer to adhere to the terms of the agreement.
19. Minimum Invoice Value
19.1 All transactions carry a minimum invoice value of $200.00, a minimum of $20 for all orders below the minimum order charge will be invoiced
20. Alterations
20.1 The Company, whose policy is one of continuous improvement, reserves the right to discontinue products at any time, or change specification, design, dimension, finishes or price, without notice and without incurring obligation.
21. Force Majeure
21.1 All quotations, offers and contracts are subject to the express condition that the Company will not in any way be responsible for loss, damage, or delays arising from strikes, lockouts, cessation of labour, fire, transport delays, shortened hours of labour, like, acts of God, non-delivery of material or parts by other manufacturers, or any other cause or contingency whatsoever beyond the control of the Company whether ‘ejusdem generis’ with the preceding causes or not.
22. Exclusions
22.1 All conversations, representations and statements not embodied in quotation or invoicing or not confirmed in writing by the Company are expressly excluded and shall not be deemed to be part of any quotation, invoice, order or contract, or to have induced the order or to have any legal effect whatsoever.
23. Arbitration
23.1 Any dispute arising as to the meaning or effect of the terms and conditions of this agreement or any modification thereof shall be referred to an arbitrator appointed by the President, for the time being, of the Australian Tapware and Plumbing Manufacturers Association.
24. Variation
24.1 The Company reserves the right to vary these Terms without notice.
24.2 These Terms are subject to the Australian Consumer Law and any other relevant legislation. In the event that any portion of any provision of these Terms is held invalid pursuant to any legislation then that portion of provision shall be regarded as having been deleted from these Terms and the remaining provisions shall constitute the terms and conditions of sale.
25. Governing Law
25.1 These Terms and the transactions contemplated by them are governed by the law of New South Wales, Australia.
25.2 Both the Company and the Customer each irrevocably submit to the jurisdiction of the courts of New South Wales, Australia and all courts called to hear appeals from the courts of New South Wales in respect of the Terms or its subject matter.
26. Acceptance
26.1 These terms are accepted by the signing and return of the acceptance on a quote, the submission of a purchase order, by emailing, faxing or writing to the Company accepting or purporting to accept a quote, by completing and submitting an application for credit to the Company and/or by signing below.
26.2 By signing below, the person signing warrants that they have authority to enter into this agreement and to accept these terms and conditions on behalf of the buyer. (Refer to Account Application Form).