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CONDITIONS OF SALE
These
conditions of sale shall apply to all sales made by the seller (whether
acting as principal or manufacturer’s agent) and shall apply to and be
deemed to be incorporated in any contract for sale of goods entered into by
the Seller. Whether such sale arises from an order received from the Buyer
(particulars whereof are recorded in the sales invoice form) or is a sale
arising from any quotation made by the Seller, Unless expressly excluded,
modified or added to in writing, any contract of sale, whether arising from
a quotation or otherwise, will be subject to the following conditions and no
other conditions (notwithstanding anything which may be stated verbally or
in writing on the Buyer’s enquiries, orders or otherwise to the contrary).
1. INTERPRETATION :
in these conditions, unless the contract otherwise requires:-
(a) “Buyer” means the person or company named in the sales invoice form or
quotation and shall include the plural, and in the case of a individual, his
executors, administrators and assigns, and in the case of a company its
successors and assigns.
(b) “Seller” means SUPA-PEG ABN 57 505 708 493 provided however that where
the sale is expressed to be made by the Seller as agent for the manufacturer
named in the sales invoice form or quotation, it is acknowledged by the
Buyer that the seller is acting as agent for the manufacturer and the term
“Seller” shall mean the manufacturer so named and, when the context so
admits or requires, shall also included SUPA-PEG as the agent of the
manufacturer. These conditions of sale shall be read construed accordingly.
(c) “Quotation” means the form of quotation submitted by the Seller to the
Buyer in which these conditions of sale are incorporated or to which they
are attached.
(d) “Sales invoice form” means the sales invoice form issued by the Seller
to the Buyer in which these conditions are incorporated or to which they are
attached.
(e) “Contract for sale” means the contract arising from the acceptance of
the Seller of the Buyer’s order (whether such order is verbal or in writing
or is made pursuant to a quotation issued by the Seller).
(f) Any special conditions set forth in the quotation shall take precedence
over these printed conditions so far as is necessary to resolve any conflict
or inconsistency.
2. QUOTATIONS
(a) Unless
previously withdrawn, the quotation is valid for thirty (30) days or such
other Period as is stated therein. The quotation is not to be construed as
an obligation to sell but merely an invitation to treat and no contractual
relationship shall arise there from until the Buyer’s order has been
accepted by the Seller in writing.
(b) The Seller shall not be bound by any conditions attaching to the Buyer’s
order or acceptance of the quotation, unless such conditions are accepted by
the Seller in writing. If the Buyer accepts the quotation be delivery of an
order form or document which stipulates or purports to impose conditions,
such conditions shall not be applicable to the contract resulting from the
quotation without such written acceptance.
(c) Every quotation shall be subject to an conditional upon any necessary
import or export or other license being obtained.
3. PRICES:
Where
the quotation refer to goods in the Sellers current price list, or where the
price is quoted as being subject to ruling prices or to escalation or
otherwise subject to variation, then the price quoted is based upon the cost
of the goods or items to the Seller at the date of quotation and any
subsequent increase in the cost of the Seller of supplying the goods whether
caused by increase in prices, wages, transport costs, customs duties or
taxes or any other factor beyond the control of the Seller, shall, together
with the Seller’s margin on such increased costs, be paid by the Buyer in
addition to the Seller’s current price list or quotation, and the increase
price shall become the price of all purposes relating to the sale, if
requested by the Buyer the Seller will furnish documentary evidence of the
price variation caused by any of the foregoing matters.
4. CONTINGENCIES :
If by reason by any legislation or regulation or government action, or other
cause beyond the Seller’s control, any change of duty or impost or
expenditure of any
kind (which is not at present chargeable or applicable) is imposed or
becomes payable or applicable, or is incurred upon or in respect to the
goods sold. It will for the Buyer’s account. Sales Tax, if applicable, shall
be for the Buyer’s account.
5. CHARGES BEYOND THE POINT OF DELIVERY
QUOTED :
Unless agreed to the contrary in writing, if the Seller prepays freight,
insurance, custom and import duties (if any) landing and delivery charges
and all other charges in connection with shipment and delivery of the goods,
then any such charges shall be to the Buyer’s account. The Seller shall have
the right to nominate the means of delivery unless agreed otherwise.
6. TERMS OF PAYMENT–IN
CONJUNCTION WITH CREDIT APPLICATION:
(a) Payment
for all goods purchased and services rendered shall be made on or fourteen
(14) days from the date which products were delivered or services provided,
irrespective of the date upon which any invoice or statement for or in
respect of the products and services was received by the Buyer or within
such other period or times as may be notified to the Buyer from time to time
by the Seller, If at any time monies are overdue and owing upon any invoice
then outstanding, the whole of the amount of all invoices then outstanding
shall become immediately due and payable.
(b) Goods and/or tooling will not be released until all payments including
outstanding payments and interest (if any) have been paid.
7. DISCOUNTS :
The Seller reserves the right to cancel all trade discounts or rebates in
the event the Buyer fails to comply with these terms and conditions of sale,
as to
payment.
8. MANUFACTURER’S CHANGES :
Where goods are ordered from information
supplied by a manufacturer or supplier
(other than the Seller) the Seller shall not be liable to the Seller.
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9: PART DELIVERIES :
Unless agreed to the contrary in writing the Seller reserves the right to
make part delivery of any order, and each part delivery shall constitute a
separate contract for the sale of the goods (upon the conditions he
contained) Failure to make delivery of the total order shall not invalidate
as regards other deliveries. Where the Seller makes part delivery, the
Seller may invoice the Buyer for goods delivered on each separate delivery.
The Seller shall have no obligation to make any further delivery until such
time any monies outstanding by the Buyer to the Seller for any previous
deliveries shall have been paid in full and the Seller may furthermore, at
its discretion, treat the Buyer as having repudiated any or all subsisting
contracts between the Seller and the Buyer.
10: PASSING OF PROPERTY AND
RISK:
(a) The
risk in the goods shall pass to the Buyer at the time if delivery at the
place designated in the contract. Delivery of possession of the goods to the
Buyer is made on the express condition that the property in the same shall
not pass to the Buyer until all monies owing by the Buyer under the contract
have been received by the Seller in cash and the Buyer shall have completely
performed all his obligations under the contract
(b) Should the products be disposed by the Buyer prior to payment of the
invoice price whether in the sale or in the modified form, any monies
received by the Buyer in payment of same shall be held in trust for the
Seller by the Buyer.
(c) The Buyer authorizes the Seller and its authorised agents to enter the
Buyers premises or any premises in the Buyer’s possession or control and to
retake possession and delivery of goods in which title remains with the
Seller and for which payment has not been received.
(d) The Seller shall not be liable to the Buyer for any loss or damage
caused in recovery of its goods in accordance with the provisions of the
Clause 10.
11. DEFAULT BY BUYER:
(a) If the
terms of this application, the granting of the credit facility to the Buyer
and Seller’s Conditions of Quotation and Sale are not complied with the
Buyer the Seller may at its absolute discretion refuse to supply further
products to the Buyer including any products subject to an order acceptance
by the Seller prior to the date of exercise of the Seller’s discretion
within the meaning of this paragraph and the Seller shall not be liable to
the Buyer for any loss or damage the buyer may sustain as a result of the
Seller refusing to supply the products.
(b) The Seller may at any time terminate the Buyer’s right to purchase
products and have services provided on credit, without the necessity of
giving prior notice.
(c) The cost of collection of any monies due and payable, including but not
exclusively the fees of any Mercantile Agent or Solicitor engaged by the
Seller, shall be recoverable in full against the Buyer.
12: SELLER’S RIGHT TO CHARGE
INTEREST:
In the
event that the Buyer should not make payment of any monies due under any
invoice issued by the Seller within the due time for payment specified
therein, the Buyer hereby agrees to pay interest at the rate equivalent to
the rate attributable to 90 day bank bills as published by the Australian
Financial Review on the due date plus one (1) per cent and calculated on a
daily basis from the due date until payment is made, or until judgment, as
the case may be.
13: ACCEPTANCE.
(a) The
Buyer will be responsible for immediate examination of the goods after
arrival at the place of delivery and the Seller shall accept or may
otherwise be required by law not be liable for any claim for which it would
otherwise be liable in respect of damaged goods including goods damaged in
the course of transit.
(b) The Buyer shall be deemed to have accepted the goods to be the
description, quality and quantity ordered unless particulars of any claims
are notified to the Seller in writing within forty eight (48) hours after
arrival of goods at the place of delivery.
(c) The Seller will not accept return of goods unless return is authorised
by the Seller.
14: LIABILITY OF SELLER:
(a) Except
as provided in the proceeding clauses the Seller shall not be under any
liability, whether in contact, tort or otherwise in respect of defects in
goods delivered or for any injury, damage or loss resulting from such
defects or from any work done in connection therewith except to the extent
that any statute applicable to the conditions prevents the exclusion,
restriction or modification of such conditions or warranties.
(b) Notwithstanding any other provisions of the contract the Seller shall
not be liable to the Buyer for any loss of profit or of contract howsoever
arising nor shall the Seller be under any liability whether in contract,
tort or otherwise nor for any injury, damage or loss whether consequential
or otherwise save as is expressly provided in these conditions.
(c) Where goods are manufactured to the Buyer’s specifications the Buyer
indemnifies the Seller against any liability to or action by a third party
for infringement or alleged infringement of a patent, registered design,
trademark or copyright.
15: LIABILITY OF BUYER :
It is the Buyer’s responsibility to notify the Seller of any changes in the
Buyer’s structure or shareholding by notice in writing and that until such
time as such notice has been given the Buyer shall be liable to the Seller
pursuant to the
obligations hereunto entered into by the
Buyer, as if such alteration to the Buyer’s structure or shareholding had
not taken place.
16: ALTERATION TO CONDITIONS :
The Seller may at any time and from time to time, alter it’s Conditions of
Quotation and Sale in respect of all transactions taking place after
notification to the Buyer of such altered Conditions of Quotation and Sale.
17: CREDIT REPORTING AGENCIES :
The Buyer hereby gives the Seller the authority to make enquiries from
credit reporting agencies as to the credit and financial responsibility of
the Buyer and or it’s Partners or Directors as required by the Seller from
time to time.
18: APPLICABLE LAW :
The Contract shall in all respect construed to operate as an
Australian contract and in
conformity with State and or Federal laws applicable to the contract. The
clause headings hereto shall not affect the construction hereof. If any of
the provisions of the contract are unlawful or invalid under any applicable
statute or rule of law, they are to that extent to be deemed omitted. |