GENERAL TERMS AND CONDITIONS OF SALE
These Conditions of Sale will apply to the supply of Goods and related services by the Supplier to the Customer from time to time.
1. Quotations and orders
1.1 All orders for Goods are accepted by the Supplier on and subject to these Conditions of Sale.
1.2 The Supplier reserves the right to accept or decline, in whole or in part, any order for Goods placed by a Customer.
1.3 The Customer acknowledges that the Supplier will have no liability in respect of any omissions or errors in respect of the Goods on which the Customer has requested the Supplier to supply.
1.4 All Goods to be supplied by the Supplier are to be in accordance with the description in the order agreed by the Supplier and the Customer (as amended by agreement). That description will prevail over all other descriptions including any other specifications provided by the Customer.
2. Price
2.1 The Supplier will use its best endeavours to notify the Customer of price changes but bears no liability in this regard. This clause 2.1 is subject to any contrary agreement (if any) between the Supplier and the Customer regarding the price of the Goods.
2.2 If a Customer wishes to cancel or modify an order, it may only do so in the manner specified from time to time by the Supplier. All requests to cancel or modify existing orders must be made in writing. The Customer acknowledges that the extent to which an order can be modified or cancelled, if at all, will depend on the type of product and the stage that the order has reached in the Supplier’s ordering system.
2.3 Unless otherwise indicated, all prices for Goods are net, exclusive of applicable Taxes, charges and GST. Where Goods are subject to GST, the Customer must pay GST at the same time as payment for the Goods is made.
2.4 For the avoidance of doubt, no terms or conditions of the Customer, including any terms and conditions printed on or referred to in the Customer’s offer to purchase or order will be binding on the Supplier or have any legal effect unless expressly agreed to in writing by the Supplier.
3. Delivery
3.1 If the Delivery Site is the Customer’s premises or the premises of a third party nominated by the Customer, the Customer will be responsible for providing adequate and timely access to the Delivery Site and the Customer will indemnify the Supplier for all loss, damage or liability incurred by the Supplier as a result of failure to provide such access.
4. Payment
4.1 Unless the Supplier grants credit to the Customer pursuant to a Commercial Credit Account and, subject to the Supplier’s right to withdraw credit, payment for the Goods purchased from the Supplier must be made by the Customer in Australian dollars in immediately available funds prior to delivery of the Goods.
4.2 Where the Customer has a Commercial Credit Account with the Supplier, the Supplier will issue an invoice for payment (Supplier’s Invoice) for all Goods supplied by the Supplier for the calendar month. The Customer must ensure that payment for the Goods is made by the Customer to the Supplier by no later than 30 days after the month in which the Goods are delivered or such other date for payment as the Supplier and the Customer agree in writing.
4.3 If there are any additional charges or surcharges incurred on delivery as provided by clause 4.5 (Additional Charges) the Customer is liable to pay these amounts. If the Customer has a Commercial Credit Account these Additional Charges will be added to the Supplier’s Invoice for payment. If the Customer does not hold a Commercial Credit Account and has paid for the Goods prior to the delivery of the Goods, the Customer must pay the Additional Charges in immediately available funds. If the Customer paid for the Goods prior to the delivery of the Goods by credit card, the Customer authorises payment of these Additional Charges by the Supplier crediting these Additional Charges to the Customer’s nominated credit card.
4.4 The Supplier reserves the right at any time to determine that a Customer ceases to hold a Commercial Credit Account by notifying the Customer in writing and immediately upon notification the Customer will cease to hold a Commercial Credit Account.
4.5 The Supplier reserves the right to charge interest on any amount overdue for payment from the date it becomes due for payment until the date payment is received by the Supplier. The interest rate that is to apply is the overdraft rate charged by the Supplier’s principal bankers . All amounts received by the Supplier will be credited first against the accrued interest.
4.6 A statement signed by the Supplier’s authorised representative certifying the amount of any Additional Charges or other claim by the Supplier will, in the absence of manifest error, be conclusive and binding of the amount due for payment.
4.7 A failure to pay or the dishonouring of a cheque tendered by the Customer will constitute a breach of these Conditions of Sale.
4.8 Payments made by credit card may be subject to a surcharge.
4.9 The Customer must not withhold any payment under this contract or make a deduction from it for any reason, including because the Customer claims to have a set-off, counter- claim or any other right against the Supplier or any other person.
5. Risk
5.1 Risk in the Goods passes to the Customer when the Goods leave the Supplier’s premises, or as otherwise agreed in writing. The Customer must ensure that adequate insurance is taken out to insure the Goods against loss or damage from that time. The Supplier may request proof of insurance policies from time to time.
5.2 Without limiting clause 5.1 the Supplier is not liable for any loss or damage to Goods in transit. The Supplier will provide the Customer with reasonable assistance (other than incurring any costs) in respect of any claim by the Customer against a carrier of the Goods if the Customer notifies the Supplier and the carrier in writing immediately after loss or damage is discovered, and lodges a claim against the carrier within three days of the receipt of the Goods.
6. Force Majeure
If the Supplier is prevented either directly or indirectly from performing any of its obligations under these Conditions of Sale, including without limitation, making a delivery of the Goods or any part of the Goods by reason of Force Majeure, it will be entitled, at its option, by notice to the Customer, either to:
(a) extend the time for delivery of the Goods for a reasonable period; or
(b) subject to refunding the Customer for any payment already made to the Supplier in respect of those particular Goods (if any), terminate this contract, and the Customer will have no claim against the Supplier for damages or any other remedy for breach of contract.
7. Default by Customer
If:
(a) there is any default or failure by the Customer in making due and punctual payment to the Supplier of any money owing by the Customer; or
(b) it is Insolvent; or
(c) there is a breach by the Customer of any of these Conditions of Sale;
then:
(d) all money payable by the Customer to the Supplier will at the Supplier’s election become immediately due and payable; and
(e) the Supplier may without prejudice to any other rights it may have, do any or all of the following:
(i) suspend deliveries of further Goods to the Customer;
(ii) terminate the contract to supply Goods in relation to Goods that have not been delivered;
(iii) without limiting clause 4.4, withdraw any Commercial Credit Account that may have been extended to the Customer and require immediate payment of all money owing to the Supplier by the Customer;
(iv) seize, take possession of and sell or retain any Goods to which title has not passed to the Customer.
7.2 All Costs incurred by the Supplier relating to any action taken by the Supplier to recover money due from the Customer (including, without limitation, legal or other debt collection costs) will be payable by the Customer on demand on the indemnity basis.
8. Liability generally
8.1 If the Goods are under any manufacturer’s warranty applicable to the Goods, the Customer must comply with all applicable warranty terms. Failure to do so may void the warranty in full or in part. All applicable warranties for new Goods are available from the Supplier upon request. Any used Goods warranty will only apply if given in writing prior to sale (if any), otherwise the used Goods are sold ‘as is’ and without any manufacturer’s warranty.
8.2 All legal, statutory or equitable liability, conditions or warranties of any type in relation to the Goods or any services supplied under this contract are excluded. However, nothing in this contract will limit those provisions of the Competition and Consumer Act 2010 (Cth) including the Australian Consumer Law, nor statutes, rules or regulations from time to time in force in Australia that imply or guarantee certain conditions or warranties or impose obligations on the Suppler, which conditions, warranties and obligations cannot, or cannot except to a limited extent, be excluded, restricted or modified. If any such statutory provisions apply, then to the extent to which the Supplier is entitled to do so, its liability under those statutory provisions will be limited at its option to:
(a) in the case of goods:
(i) the replacement of goods or the supply of equivalent goods; or
(ii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iii) the payment of the cost of having the goods repaired; or the repair of the goods; and
(b) in the case of services:
(i) the supply of the services again; or
(ii) the payment of the cost of having the services supplied again.
The limitation in this clause does not apply to a breach of consumer guarantees relating to clear title, undisclosed securities and undisturbed possession under sections 51 to 53 of the Australian Consumer Law.
8.3 To the maximum extent permitted by law and subject to clause 8.2 the Supplier will not be liable to the Customer, at law, equity, statute or otherwise for any Consequential Loss howsoever caused.
8.4 To the maximum extent permitted by law and subject to clause 8.2 the Supplier’s cumulative liability to the Customer under or in connection with this contract, including any liability for breach of this contract, negligence or under any indemnity or law, will be limited to the amount paid by the Customer to the Supplier for the Goods.
9. Miscellaneous
9.1 These Conditions of Sale set out the entire agreement between the parties in relation to their subject matter. Any other terms and conditions referred to in any purchase order form or similar document issued by the Customer are of no effect.
9.2 The laws applicable to the agreement between the Supplier and the Customer are the laws of Queensland and the Customer submits to the jurisdiction of the courts of Queensland.
9.3 Nothing in these Conditions of Sale will constitute the Supplier as a subcontractor of the Customer.
9.4 A party waives a right under these Conditions of Sale only if it does so in writing. A party does not waive a right because it fails to exercise the right, delays exercising the right or only exercises part of the right. The exercise of a right does not prevent any further exercise of that right or of any other right. A waiver of any breach of a term of these Conditions of Sale does not operate as a waiver of another breach of the same term or any other term.
9.5 A provision of these Conditions of Sale or a Delivery Docket, or right created under it, may not be waived or varied except in writing signed by the party or parties to be bound. If there is a waiver or variation in writing it must be confirmed by the Supplier in writing, by a person authorised by the Supplier’s management to make such variation or provide the waiver in writing and no other employee of the Supplier including a delivery driver under contract to the Supplier, nor any other person, will have any authority to waive or vary these Conditions of Sale or a Delivery Docket.
9.6 If a provision in these Conditions of Sale is wholly or partly invalid or unenforceable in any jurisdiction, that provision or the part of it that is invalid or unenforceable must, to that extent, and in that jurisdiction, be treated as deleted from these Conditions of Sale. This does not affect the validity or enforceability of the remaining provisions in that jurisdiction, or of the deleted provision in any other jurisdiction.
9.7 The Supplier may assign or otherwise deal with the benefit of any contract made pursuant to these Conditions of Sale without the consent of the Customer. The Customer may not assign or otherwise deal with the benefit of any contract made pursuant to these Conditions of Sale.
Interpretation
In this document:
(a) The singular includes the plural and vice versa;
(b) headings are convenience only and do not alter the interpretation;
(c) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
(d) where the day on or by which any sum is payable or any act, matter or thing is to be done is a day other than a Business Day, that sum will be paid or that act, matter or thing will be done on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not);
(e) terms defined in the PPSA have the same meaning when used in this document unless otherwise indicated;
a reference to:
(i) this document includes any variation, novation or replacement of it;
(ii) the Customer includes a reference to its authorised representatives, employees, agents and subcontractors and the Customer’s executors, administrators, successors, substitutes (including, without limitation, persons taking by novation) and assigns;
(iii) the Supplier includes a reference to that person’s executors, administrators, successors,, substitutes (including, without limitation, persons taking by novation) and assigns; and
(iiiv) law means common law, principles of equity, and laws made by parliament, and a reference to laws made by parliament or any legislation includes regulations and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them.