TERMS OF TRADE
1. IN THESE CONDITIONS
Goods and/or Services shall mean what the Seller has contracted with the Buyer to supply in consideration of the price.
Seller shall mean the seller and its successors and assigns.
Buyer shall mean the buyer or any person acting on behalf of and with the authority of the buyer.
Price shall mean the cost of the goods and/or services as agreed between the Seller and Buyer subject to Clause 3 of this agreement.
Upon acceptance of any order by the Seller a binding agreement shall arise between the Buyer and the Seller and these terms and conditions shall be deemed to be included in such agreement. All representations, statements, terms, conditions and warranties (whether implied by statute or otherwise) not embodied herein are expressly excluded to the fullest extent permitted by law.
Unless stated to the contrary, the Price does include goods and services tax, but does not include other taxes, import duties or other levies or tariffs, freight, delivery or insurance charges, which, if applicable, will be an extra charge.
4.1 The Seller reserves the right to request payment to be paid in advance prior to the delivery of the goods and/or services.
4.2 The Buyer must pay each invoice issued in accordance with the time stated on the invoice. Should the invoice not state a time, then payment is to be made upon delivery of the goods and/or services.
The Buyer acknowledges and agrees that:
5.1 The Seller accepts no responsibility or duty from any delivery, but may elect to arrange delivery at his discretion, without any liability and at the Buyer’s cost and risk.
5.2 The Seller reserves the right to charge for any delivery.
5.3 The Buyer shall be deemed to have accepted delivery and liability for the goods and/or services immediately once they are delivered to a carrier or to the Buyer’s premises whether they are attended or not.
5.4 If the goods and/or services ordered are ready for delivery and the Buyer does not wish to take delivery then the Seller may invoice the goods and/or services where upon the Buyer shall be liable to pay for such goods and/or services.
6. LIMITATION OF LIABILITY
6.1 When a person is a consumer as defined in the Trade Practices Act 1974 or in any other law of the Commonwealth (or state or territory) of Australia, the Buyer’s rights shall be governed by the provisions of the said act or law to the extent that such liability may not be excluded by express agreement.
6.2 The Seller’s liability under the statutory provisions is limited at, the Seller’s option, to:
6.2.1 replacement or repair of the goods and/or services or the supply of equivalent goods and/or services;
6.2.2 payment of the cost of replacing or repairing the goods and/or services or of acquiring equivalent goods and/or services.
6.3 The Seller is not subject to, and the Buyer releases the Seller from any additional liability (including but not limited to consequential loss or damage, removal costs or re-installation costs or liability for loss of use or profit) because of any delay in delivery or fault or defect in the goods and/or services. and in either case, the Seller will not be liable for any consequential or other direct or indirect loss or damage.
6.4 The Buyer expressly acknowledges and agrees that it has not relied upon, and the Seller is not liable for any advice given by the Seller, its servants, agents, representatives or employees in relation to the suitability for any purpose of the goods and/or services.
6.5 Except as to the extent permitted by law, the Seller is not liable for death of or injury to any person, for loss of or damage to goods, for delay or for consequential or other loss of any kind, arising directly or indirectly from negligence or omission or some other cause in connection with provision or non-provision for any goods and/or services.
7.1 The risk in the goods and/or services shall pass to the Buyer upon delivery.
7.2 The Buyer shall be obliged to insure the goods and/or services from the time of delivery to the Buyer and, pending payment in full, insure the goods and/or services in the name of the Seller and Buyer for their respective interests.
Notwithstanding that risk in the goods and/or services shall pass to the Buyer upon delivery to the Buyer, title to the goods and/or services shall remain with the Seller until all monies owing by the Buyer to the Seller have been paid in full (whether such monies are in respect of the monies payable under a specific contract or on any other account whatsoever) and until such time.
9. DELAY OR DEFAULT IN PAYMENT
In the event that the Seller has not been paid for any goods and/or services on the due date specified in this agreement, without prejudice to any other right or remedy:
9.1 The Seller may charge interest on the outstanding monies from the date at which the monies became due and until full payment, including interest, has been made. The interest rate will be charged at the rate prescribed from time to time pursuant to Section 94 of the Supreme Court Act 1970 (NSW).
9.2 The Buyer indemnifies the Seller from and against any legal costs and disbursements the Seller may incur in the collection of the debt.
9.3 The Buyer will reimburse any fees payable by the Seller to a commercial agent or mercantile agent in respect of any default up to a maximum of fifteen percent (15%) of the amount outstanding on the Contract at the time of the default.
9.4 The Seller may recover the price of the goods and/or services, together with all interest and the costs incurred in collecting the debt forthwith from the Buyer as a liquidated debt in a court or tribunal of competent jurisdiction, irrespective of any claim that the Buyer may have against the Seller from any thing or matter related to the goods and/or services delivered under this agreement.
9.5 Should any monies remain unpaid for a period of 30 days after the date of payment falls due, the Seller may charge an administration fee of $50.00, which will become immediately due and payable.
10. SECURITY FOR PAYMENT
The Buyer agrees that any claim for monies outstanding made pursuant to this agreement is charged against any interest the Buyer may have in any real property and the Buyer hereby authorises the Seller to lodge a Caveat on the title to any such interest to protect such charge.
11.1 Notwithstanding any other agreement as to the terms of payment, the full purchase price shall immediately become due and payable and the Seller shall have the right to forthwith cancel this agreement (without prejudice to any other of its rights) upon the occurrence of any of the following events:
11.1.1 the Buyer enters into any negotiations for any arrangement or composition with its creditors;
11.1.2 any money payable to the Seller becomes overdue;
11.1.3 the Buyer becomes bankrupt or commits an act of bankruptcy or proceedings are taken for liquidation of the Buyer’s affairs;
11.1.4 a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer; or
11.1.5 breach by the Buyer of any other terms contained in this agreement.
11.2 On the occurrence of any of the above events, the Seller will be entitled to repossess the goods.
12. CONSUMER GUARANTEES AND ADDITIONAL WARRANTIES
12.1 Consumer guarantees apply under the Australian Consumer Law. Nothing in these Terms and Conditions or in our warranty policies excludes the application of those guarantees.
12.2 Additional warranties are listed on the product description page.
13. SERVICE OF NOTICE
For the purpose of service of any document or notice in connection with the offer or agreement it shall be sufficient for either party to forward such document or notice by ordinary mail to the last known address of the other party.
14.1 These Terms of Trade shall be governed by the laws of the State of New South Wales.
14.2 The Parties agree to submit to the non-exclusive jurisdiction of the Court of New South Wales.
15. VARIATION AND WAIVER
15.1 The Seller is not bound by any waiver, discharge or release of a condition or any agreement which varies these conditions unless it is in writing and signed for the Seller by an authorised person.
15.2 If the Seller waives a breach of a condition the waiver does not operate as a waiver of another breach of the same or any other condition or as a continuing waiver.
16. PRIVACY ACT 1988
16.3 The Buyer acknowledges and agrees to the Seller obtaining a consumer credit report to collect any overdue payment on commercial credit, as provided for in s.18K(1)(h) Privacy Act 1988.
16.4 The Buyer acknowledges that personal information collected or held by the Seller is provided and may be held, used and disclosed for the following purposes:
16.4.1 administering, whether directly or indirectly, the Seller’s agreements and enforcing the Seller’s rights thereunder;
16.4.2 marketing goods and services provided by the Seller, its agents or distributors;
16.4.3 ascertaining at any time the Buyer’s creditworthiness and obtaining at any time credit reports, character references or credit statements;
16.4.4 enabling the Seller to notify any credit agency of any application for credit or default on any obligation of the Buyer to the Seller and enabling the Seller to provide such personal information to any credit agency so such credit agency can maintain effective accounting records; and
16.4.5 processing any payment instructions, direct debit facilities and/or credit facilities as requested by the Buyer.
The above purposes are not exclusive of any other purposes as shall be agreed between the Buyer and Seller or that are required by law.