All goods and services purchased from the Company are sold subject to the following terms and conditions of sale and these terms and conditions of sale shall prevail notwithstanding any other document and/or anything else except a written agreement signed by the Customer and the Company, except only for such terms as are implied by or under any law and which cannot be excluded:
Prices may be altered without notice and all goods will be charged at the price prevailing at time of order. GST and/or any other Government imposts whatsoever applicable to the supply of goods and/or services will be payable by the Customer.
(i) Payment for goods purchased from the Company shall be made on or before delivery or in the case of Customers who have an account with the Company within 30 days from the end of the month of delivery.
(ii) The Customer shall not be entitled to retain any money owing to the Company notwithstanding any default or alleged default by the Company including the supply of defective or allegedly defective goods or delay or alleged delay in supply.
(iii) If Payment is not made on time, the Customer shall pay interest to the Company on any amount owing at the rate of the ANZ Banking Group Limited’s Excess Business Overdraft Lending Rate.
(iv) A certificate signed by a responsible officer of the Company shall be prima facie evidence of the amount owed to the Company by the Customer at the date of such certificate.
(v) The Customer will pay to the Company without deduction or set-off all monies owing to the company.
(vi) The Company shall be entitled at any time to set-off any monies then or contingently owed to the Company by the Customer against any debt the Company owes to the Customer.
If the Customer defaults in any payment, or if in the opinion of the Company, the Customer is unlikely to be able to meet its liability as it falls due then the Company may at its sole discretion:-
(i) require immediate payment forthwith of all amounts owing by the Customer to the company, whether or not such amounts are then due for payment including without limitation, all interest, administration and collection charges.
(ii) Charge full list price for goods supplied without allowing discount.
(iii) Terminate any contract or contracts in relation to goods which have not been delivered.
(iv) Repossess any goods delivered to the Customer, payment for which has not been received.
(i) Property in any goods supplied by the Company shall remain the sole and absolute property of the Company as legal and equitable owner until the full purchase price for all goods supplied is received by the Company from the Customer.
(ii) Risk in the goods shall pass to the Customer on delivery to the Customer or its agent.
(iii) The Customer acknowledges that until payment in full to the Company for all goods supplied to the Customer by the Company, the Customer shall hold the goods as bailee for the Company and that the Customer has a fiduciary duty to the Company.
(iv) The Customer irrevocably authorises the Company to repossess any goods supplied by the Company to the Customer, without any notice, if the Customer fails to make any payment when it is due, or if, in the opinion of the Company, the payment of any amount in respect of goods supplied by the Company is in jeopardy or the Customer is placed into any form of external administration. The Customer, in consideration of credit being given, irrevocably authorises the Company to enter onto any land on which the goods are left and to which the Customer has a right of entry, to enter thereon and remove the goods.
(v) When the Company retakes possession of goods pursuant to its right hereunder, the contract for sale between the Company and the Customer is thereby terminated and the Company has the right to resell such repossessed goods.
(vi) Any monies received by the Customer in partial or full payment for the goods supplied by the Company to the Customer shall be held by the Customer on trust for the benefit of the Company and payable to the Company until the Customer has paid the Company for all goods supplied by the Company to the Customer.
(vii) The Customer releases and indemnifies the Company and its servants or agents from all claims for loss or damage caused by the Company or its servants or agents in enforcing or attempting to enforce its rights under this clause 4.
(viii) The Customer agrees to the Company applying to register a security interest in any goods supplied by the Company and the Customer waives its right under s 157(3) of the Personal Property Securities Act 2009 (Cth) PPSA) to receive notice of any verification of the registration.
(ix) The Customer agrees not to disclose information of the kind mentioned in s 275(1) of the PPSA, except in circumstances required by sections 275(7)(b)-(e) of the PPSA.
The Customer hereby charges in favour of the Company as security for the Customer’s obligations to the Company, all right, title and interest in any land held now by the Customer or alone or jointly with anyone or acquired by the Customer at any time hereafter. If the Customer defaults in payment of any amount owed to the Company, the Customer specifically authorises the Company to lodge a caveat against any dealings with any such property and appoints the Company to be the Customer’s attorney for this purpose.
(i) Should there be any discrepancy between the order by telephone as recorded and processed by the Company and later confirmation in writing by the Customer, the Company’s record of telephone order shall prevail.
(ii) The Company may in its absolute discretion refuse to supply goods where goods are unavailable for any reason whatsoever or a credit limit has been exceeded.
Once an order has been accepted by the Company, the Customer can only cancel, vary or suspend the order (whether in whole or in part) if:-
(i) The Company agrees in writing to such cancellation, variation or suspension.
(ii) The Customer agrees to accept delivery of all goods held by and all goods in transit to the Company in respect of such order.
(iii) The Customer agrees to pay all costs, expenses and liabilities incurred by the Company in consequence of the cancellation, variation or suspension of the order and accept consequential delay.
The Company may in its discretion accept the return of goods in exchange for credit on the following terms:-
(i) A request for credit must be made before the goods are returned and within thirty (30) days of being invoiced for those goods.
(ii) If the returned goods are accepted, the invoice costs shall be credited against the Customer’s outstanding account or future account. A cash refund will not be given
(iii) The Company will not accept returned goods until they are received and examined for damage.
(iv) The Customer shall bear all costs for the return of the goods whether they are accepted by the Company or not.
(v) The Customer shall pay the Company a restocking fee as determined by the Company from time to time.
(vi) Acceptance of returned goods does not release the Customer of its obligation to pay for any services in relation to the goods.
To the extent possible at law:
(i) The Customer accepts full responsibility for the dimensions and quantities of goods ordered as independently computed by the Customer without relying on any estimates of dimensions or quantities given by the Company.
(ii) The Customer warrants to the Company that it will not rely on representations made and/or advice given by the Company or its employees in connection with the design, dimension, installation or use of goods sold and agrees that the Company shall not be liable for the consequences of any mistake in such representation or advices whether made or given innocently, deliberately and/or negligently.
(iii) If the goods are required for a particular purpose, the Customer must clearly specify that purpose in writing in the order placed with the company and obtain written assurance from the Company that the goods when supplied will meet that requirement. If the Customer does not specify the particular purpose, and the Company does not expressly undertake in writing that the goods will be fit for the specified purpose, then the Customer agrees that it did not rely on the skill or judgement of the Company in relation to the suitability of the goods for a particular purpose.
(iv) The Company shall not be liable for delay in delivery of the goods or deliver of part(s) of the goods in instalment due to any cause whatsoever. The Customer shall not be relieved from any obligation to accept or pay for goods by reason of any delay in or the instalment delivery of the goods. Notwithstanding anything contained in the terms, in no event shall the Company be responsible for any loss of profits, penalties, disruption, expenditure and/or damages incurred and/or sustained by the Customer due directly or indirectly because of any delay in the instalment delivery of the goods.
(v) Any complaint by the Customer for failure to deliver, delayed delivery, short delivery, supply or incorrect and/or faulty goods must be made in writing by fax or email to the Company, within 8 hours of the agreed or reasonably expected time at which the Company failed to deliver such goods and/or any of the occurrences specified in this paragraph. If the Customer desires to make any claim whatsoever against the Company in respect of such failure and/or occurrences, the Customer must notify the Company of such claim and its particulars in writing with three (3) business days of the failure to deliver and/or of any of the occurrences. The Customer waives, foregoes, abandons and forgives forever any claim whatsoever the Customer may have against the Company unless it has strictly complied with the preceding notification requirement for the complaint and the claim.
(vi) Any goods returned by the Customer will be held and/or disposed of by the Company on behalf of the Customer unless the return of the goods is preceded by the complaint and the claim in writing as specified in the preceding paragraph. The Customer must facilitate the inspection of the goods by a Company representative prior to return. The acceptance of any returned goods shall not imply any acceptance by the Company of the Customer’s claim.
(vii) If the goods are delivered by the Company to the Customer in a damaged state, the Customer must request the Company in writing for their replacement within 8 hours of the delivery of the damaged goods and the Customer must at the time of the delivery of the damaged goods and the Customer must at the time of the delivery, specify in the delivery docket to be given to the deliverer that the goods are damaged and describe in the delivery docket the nature and extent of the damage.
(viii) The Customer will indemnify the Company for any claims made by a third party against the Company for any default of the Company directly or indirectly related to any contract and/or arrangement made between the Company and the Customer.
(i) Unless agreed otherwise in writing prior to delivery, unloading of goods shall be the Customer’s responsibility and the Company will not be responsible for any damage resulting from the unloading of the goods by the Customer or by anyone on its behalf, or by the Company’s employee or agent.
(ii) The Customer indemnifies the Company from any claim whatsoever resulting from the Customer, its employee or agent loading the goods supplied by the Company on any vehicle or unloading goods supplied by the Company from any vehicle.
(iii) The goods will be entirely at the Customer’s risk when delivered.
(iv) A quantity, description, date, time and place of delivery are shown on the Company’s invoice or delivery docket shall be conclusive evidence of quantity, description, date, time and place of delivery of such goods.
(v) If the site is unattended goods will be unloaded on the site or if the site is not accessible as close to the site as is practicable and the delivery docket/manifest signed by the cartage contractor or the driver of the Company that the goods were delivered accordingly shall be conclusive evidence of due delivery of the goods.
(vi) The Company if requested to enter a property accepts no responsibility for any damage caused by the Company or its agent.
(vii) A standard delivery charge as published by the Company from time to time in its price list will apply.
(viii) Deferred delivery of goods already manufactured for the Customer will incur storage charge of 0.5% per week of invoice value