1.
Definitions
1.1 “Seller”
shall mean Scott & Ensoll and its successors and
assigns.
1.2 “Buyer”
shall mean the Buyer or any person acting on behalf
of and with the authority of the Buyer.
1.3 “Guarantor”
means that person (or persons), or entity who agrees
herein to be liable for the debts of the buyer on a
principal debtor basis.
1.4 “Goods”
shall mean Goods supplied by the Seller to the Buyer
(and where the context so permits shall include any
supply of Services as hereinafter defined).
1.5 “Services”
shall mean all services supplied by the Seller to the
Buyer and includes any advice or recommendations (and
where the context so permits shall include any supply
of Goods as defined above).
1.6 “Price”
shall mean the cost of the Goods as agreed between the
Seller and the buyer subject to clause 4 of this contract.
2.
Acceptance
2.1 Any instructions
received by the Seller from the buyer for the supply
ofGoods and/or the Buyer’s acceptance of Goods
supplied by the Seller shall constitute acceptance
of the terms and conditions contained herein.
2.2 Where more than one
buyer has entered into this agreement, the Buyers
shall be jointly and severally liable for all payments
of the Price.
2.3 Upon acceptance of
these terms and conditions by the Buyer the terms
and conditions are irrevocable and can only be rescinded
in accordance with these terms and conditions or with
the written consent of the manager of the Seller.
2.4 None of the Seller’s
agents or representatives are authorized to make any
representations, statements, conditions or agreements
not expressed by the manager of the Seller in writing
nor is the Seller bound by any such unauthorized statements.
2.5 The Buyer undertakes
to give the Seller not less than fourteen (14) days
prior written notice of any proposed change in the
Buyer’s name and/or any other change in the
Buyer’s details (including but limited to, changes
in the Buyer’s address, facsimile number, or
business practice).
3. Goods
3.1 The Goods are as
described on the invoices, quotation, work authorization
or any other work commencement forms as provided by
the Seller to the Buyer.
4. Price And Payment
4.1 At the Seller’s
sole discretion the Price shall be either:
(a) as indicated on invoices
provided by the Seller to the Buyer in respect of
Goods supplied; or
(b) the Seller’s
quoted Price (subject to clauses 4.2 and 4.3) which
shall be binding upon the Seller provided that the
Buyer shall accept in writing the Seller’s quotation
within fourteen (14) days.
4.2 The price as per
clause 4.1 shall be the retail price of the Goods.
Any discount offered by the Seller (at its sole discretion)
is subject to prompt payment by the Buyer.
4.3 The Seller may be
giving notice to the Buyer at any time up to seven
(7) days before delivery increase the Price of the
Goods to reflect any increase in the cost to the Seller
beyond the reasonable control of the Seller. (including,
without limitation, foreign exchange fluctuations,
taxes and duties, provisions of any Acts, By-Laws,
Order or Regulation of any parliament, municipality
or local authority enacted after the date of contract
between the Buyer and Seller).
4.4 Any variation from
the plan of scheduled works or specifications will
be charged for on the basis of the Seller’s
quotation and will be shown as variations on the Invoice.
Payment for all variations must be made in full at
their time of completion.
4.5 At the Seller’s
sole discretion a deposit may be required. The deposit
amount or percentage of the price will be stipulated
at the time of the order of the Goods and shall become
immediately due and payable. As Goods are mode to
special order any deposit paid is non-refundable (except
under exceptional circumstances and at the sole discretion
of the Seller).
4.6 Time for payment
for the Goods shall be of the essence and will be
stated on the invoice, quotation or any other order
forms. If no time is stated then payment shall be
due seven (7) days following the date of the invoice.
4.7 The Seller may withhold
delivery of the Goods until the Buyer has paid for
them, in which event payment shall be made before
the delivery date.
4.8 At the Seller’s
sole discretion, payment for approved Buyers shall
be made by installments in accordance with the Seller’s
delivery/payment schedule.
4.9 Payment will be made
by cash on delivery, or by cheque, or by bank cheque,
or by direct credit, or by any other method as agreed
to between the Buyer and the Seller.
4.10 The Price shall
be increased by the amount of any GST and other taxes
and duties which may be applicable, except to the
extent that such taxes are expressly included in any
quotation given by the Seller.
5 Delivery of Goods/Services
5.1 Delivery of the Goods
shall be made to the Buyer’s nominated address.
The Buyer shall make all arrangements necessary to
take delivery of the Goods whenever they are tendered
for delivery, or delivery of the Goods shall be made
to the Buyer at the Seller’s address.
5.2 Delivery of the Goods
to a carrier, either named by the Buyer or failing
such naming to a carrier at the discretion of the
Seller for the purpose of transmission to the buyer,
is deemed to be a delivery of the Goods to the Buyer.
5.3 The costs of carriage
and any insurance which the Buyer reasonably directs
the Seller to incur shall be reimbursed by the Buyer
without any set-off or other withholding whatever)
and shall be due on the date for payment of the Price.
The carrier shall be deemed to be the Buyer’s
agent.
5.4 The Seller may deliver
the Goods by separate installments (in accordance
with the agreed delivery schedule). Each separate
installment shall be invoiced and paid for in accordance
with the provisions in this contract of sale.
5.5 Delivery of the Goods
to a third party nominated by the Buyer is deemed
to be delivery to the Buyer for the purposes of this
agreement.
5.6 The Buyer shall take
delivery of the Goods tendered notwithstanding that
the quantity so delivered shall be either greater
or less than the quantity purchased provided that:
(a) such discrepancy
in quantity shall not exceed 5%, and
(b) the Price shall be
adjusted pro rate to the discrepancy.
5.7 The failure of the
Seller to deliver shall not entitle either party to
treat this contract as repudiated.
5.8 The Seller shall
not be liable for any loss or damage whatever due
to failure by the Seller to deliver the Goods (or
any of them) promptly or at all.
6 Risk
6.1 If the Seller retains
property in the Goods nonetheless, all risk for the
Goods passes to the Buyer on delivery.
6.2 If any of the Goods
are damaged or destroyed prior to property in them
passing to the Buyer, the Seller is entitled without
prejudice to any of its other rights or remedies under
these Terms and Conditions of Trade (including the
right to receive payment of the balance of the Price
for the Goods), to receive all insurance proceeds
payable for the Goods. This applies whether or not
the Price has become payable under the Contract. The
production of these terms and conditions by the Seller
is sufficient evidence of the Seller’s rights
to receive the insurance proceeds without the need
for any person dealing with the Seller to make further
enquiries.
7 Buyer’s Disclaimer
7.1 The Buyer hereby
disclaims any right to rescind, or cancel the contract
or to sue for damages or to claim restitution arising
out of any misrepresentation made to him by any servant
or agent of the Seller and the Buyer acknowledges
that he buys the Goods relying solely upon his own
skill and judgement.
8 Defects/Returns
8.1 The Buyer shall inspect
the goods on delivery and shall immediately notify
the Seller by telephone of any shortage in quantity
or damage. The Buyer shall email the Seller photographic
evidence of the damage to the Goods (whilst they are
still packaged) to support the insurance claim. The
Buyer shall make notation of the delivery docket that
the Goods were damaged in transit and that they are
not accepted. It is the Buyer’s responsibility
to present at the time of delivery to receive the
goods, failing which the signature of the transport
driver shall be sufficient evidence that the Goods
were delivered in undamaged condition.
8.2 The Buyer shall afford
the Seller an opportunity to inspect the Goods within
a reasonable time following delivery if the Buyer
believes the Goods are defective in any way. If the
Buyer shall fail to comply with these provisions,
the Goods shall be conclusively presumed to be in
accordance with the terms and conditions and free
from any defect or damage.
8.3
For defective Goods, which the Seller has agreed in
writing that the buyer is entitled to reject, the Seller’s
liability is limited to either (at the Seller’s
discretion) replacing the Goods or repairing the Goods
provided that:
(a) the buyer has complied
with the provisions of clause 8.1:
(b) the Goods are returned
in the condition in which they were delivered and with
all packaging material in as new condition as is reasonably
possible in the circumstances.
9 Warranty
9.1 Powder coating and
paint colour’s may vary from colour samples
provided. The Seller gives no guarantee (expressed
or implied) that colour samples will match the finished
Goods. The Seller will make every effort to match
colour samples to the finished Goods but will not
be liable for any losses in relation to colour samples
differing from the finished Goods.
9.2 For Goods not manufactured
by the Seller, the warranty shall be the current warranty
provided by the manufacturer of the Goods. The Seller
shall not be bound by nor responsible for any term,
condition, representation or warranty given by the
manufacturer of the Goods.
9.3 In the case of second
hand Goods, the buyer acknowledges that he has had
full opportunity to inspect the same and that he accepts
the same with all faults and that no warranty is given
by the Seller as to the quality of suitability for
any purpose and any implied warranty, statutory or
otherwise, is expressively excluded. The Seller shall
not be responsible for any loss or damage to the Goods,
or caused by the Goods, or any part thereof however
arising.
10 The Commonwealth
Trade Practices Act 1974 and Fair Trading Acts
10.1 Nothing in this
agreement is intended to have the effect of contracting
out of any applicable provisions of the Commonwealth
Trade Practices Act 1974 or the Fair Trading Acts
in each of the States and Territories of Australia,
except to the extent permitted by those Acts where
applicable.
11 Intellectual
Property
11.1 Where the Seller
has designed or drawn Goods for the Buyer, then the
copyright in these designs and drawings shall remain
vested in the Seller, and shall only be used by the
Buyer at the Seller’s discretion.
11.2 The Buyer shall
indemnify the Seller against any claims by third parties
for patent, trademark, design or copyright infringement,
directly or indirectly arising out of the design,
workmanship, material, construction, or use of the
Goods or any other deficiency therein. Where the Buyer
has supplied drawings, sketches, files or logo’s
to the Seller, the Buyer warrants that the drawings,
sketches, files or logo’s do not breach any
patent, trademark, design or copyright, and the buyer
agrees to indemnify the Seller against any action
taken by a third party against the Seller.
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12
Default & Consequences of Default
12.1 Interest on overdue
invoices shall accrue from the date when payment
becomes due daily until the date of payment at a
rate of 2.5% compounding per calendar month and
shall accrue at such a rate after as well as before
any judgement.
12.2 If the Buyer defaults
in payment of any invoice when due, the Buyer shall
indemnify the Seller from and against all the Seller’s
costs and disbursements including on a solicitor
and own client basis and in addition all of the
Seller’s nominees costs of collection.
12.3 Without prejudice
to any other remedies the Seller may have, if at
any time the Buyer is in breach of any obligation
(including those relating to payment), the Seller
may suspend or terminate the supply of Goods to
the Buyer and any of its other obligations under
the terms and conditions. The Seller will not be
liable to the Buyer for any loss or damage the Buyer
suffers because the Seller exercised its rights
under this clause.
12.4 If any account
remains unpaid at the end of the sixtieth day after
supply of the Goods or Services an immediate amount
of the greater of $20.00 or 10% of the amount overdue
shall be levied for administration fees which sum
shall become immediately due and payable.
12.5 In the event that:
(a) any money payable
to the Seller becomes overdue, or in the Seller’s
opinion the Buyer will be unable to meet its payments
as they fall due; or
(b) the Buyer becomes
insolvent, convenes a meeting with its creditors
or proposes or enters into an arrangement with creditors,
or makes an assignment for the benefit of its creditors;
or
(c) a receiver, manager,
liquidator (provisional or otherwise) or similar
person is appointed in respect of the Buyer or any
asset of the Buyer.
Then without prejudice to the Seller’s other
remedies at law:
(i) the Seller shall
be entitled to cancel all or any part of any order
of the buyer which remains unperformed in addition
to and without prejudice to any other remedies;
and
(ii) all amounts owing
to the Seller shall, whether or not due for payment,
immediately become payable in addition to the interest
payable under clause 12.2 hereof.
13
Title
13.1 It is the intention
of the Seller and agreed by the Buyer that property
in the Goods shall not pass until:
(a) the Buyer has paid
all amounts owing for the particular Goods, and
(b) The Buyer has met
all other obligations due by the Buyer to the Seller
in respect of all contracts between the Seller and
the Buyer, and that where practicable the Goods
shall be kept separate until the Seller shall have
received payment and all other obligations of the
Buyer are met.
13.2 Receipt by the
Seller of any form of payment other than cash shall
not be deemed to be payment until that form of payment
has been honoured, cleared or recognized and until
then the Seller’s ownership of rights in respect
of the Goods shall continue.
13.3 It is further
agreed that:
(a) Until such time
as ownership of the Goods shall pass from the Seller
to the Buyer, the Seller may give notice in writing
to the Buyer to return the Goods or any of them
to the Seller. Upon such notice the rights of the
Buyer ot obtain ownership or any other interest
in the Goods shall cease.
(b) The Seller shall
have the right of stopping the Goods in transit
whether or not delivery has been made; and
(c) If the Buyer fails
to return the Goods to the Seller then the Seller
or the Seller’s agent may enter upon and into
land and premises owned, occupied or used by the
Buyer, or any premises as the invitee of the Buyer,
where the Goods are situated and take possession
of the Goods.
(d) The Buyer is only
a bailee of the Goods and until such time as the
Seller has received payment in full for the Goods
then the Buyer shall hold any proceeds from the
sale or disposal of the Goods on trust for the Seller.
(e) The Buyer shall
not deal with the money of the Seller in any way
which may be adverse to the Seller.
(f) The Buyer shall
not charge the Goods in any way nor grant nor otherwise
give any interest in the Goods while they remain
the property of the Seller.
(g) The Seller may
require payment of the Price or the balance of the
Price due together with any other amounts due from
the Buyer to the Seller arising out of these terms
and conditions, and the Seller may take any lawful
steps to require payment of the amounts due and
the Price.
(h) The Seller can
issue proceedings to recover the Price of the Goods
sold notwithstanding that ownership of the Goods
may not have passed to the Buyer.
(i) Until such time
that ownership in the Goods passes to the Buyer,
if the goods are so converted, the parties agree
that the Seller will be the owner of the end products.
14
Security and Charge
14.1 Despite anything
to the contrary contained herein or any other rights
which the Seller may have howsoever:
(a) Where the Buyer
and/or the Guarantor (if any) is the owner of land,
realty or any other asset capable of being charged,
both the Buyer and/or the Guarantor agree to mortgage
and/or charge all of their joint and/or several
interest in the said land, realty or any other asset
to the Seller or the Seller’s nominee to secure
all amounts and other monetary obligations payable
under the terms and conditions. The Buyer and/or
the Guarantor acknowledge and agree that the Seller
(or the Seller’s nominee) shall be entitled
to ledge where appropriate a caveat, which caveat
shall be released once all payments and other monetary
obligations payable hereunder have been met.
(b) Should the Seller
elect to proceed in any manner in accordance with
this clause and/or its sub-clauses, the Buyer and/or
Guarantor shall indemnify the seller from and against
all the Seller’s costs and disbursements including
legal costs on a solicitor and own client basis.
(c) To give effect
to the provisions of clause [14.1 (a) and (b)] inclusive
hereof the Buyer and/or the Guarantor (if any) do
hereby irrevocably nominate constitute and appoint
the seller or the Seller’s nominee as the
buyer’s and/or Guarantor’s true and
lawful attorney to execute mortgages and charges
(whether registerable or not) including such other
terms and conditions as the Seller and/or the Seller’s
nominee shall think fit in his/her/its/their absolute
discretion against the joint and/or several interest
of the Buyer and/or the Guarantor in any land, realty
or asset in favor of the Seller and in the Buyer’s
and/or Guarantor’s name as may be necessary
to secure the said Buyer’s and/or Guarantor’s
obligations and indebtedness to the Seller and further
to do and perform all necessary and other acts including
instituting any necessary legal proceedings, and
further to execute all or any documents in the Seller’s
absolute discretion which may be necessary or advantageous
to give effect to the provisions of this clause.
15
Storage
15.1 The Seller may
at its absolute discretion charge Storage fees of
2.5% per day of the total invoice amount excluding
GST should the Buyer after repeated contact from
the Seller fail to receive or have received on their
behalf Goods that they have been notified are complete.
15.2 The Seller will
notify the Buyer by phone, fax or email that the
Goods are available for receipt. Two working days
from this notification the Seller may at its absolute
discretion, Invoice the Buyer for Storage of Goods
as outlined in 15.1
if the goods continue to remain in storage at the
Sellers premise. The value of which immediately
becomes payable in addition to the original invoice
amount.
16
Cancellation
16.1 The Seller may
cancel these terms and conditions or cancel delivery
of Goods at any time before the Goods are delivered
by giving written notice. The Seller shall not be
liable for any loss or damage whatever arising from
such cancellation.
16.2 At the Sellers
sole discretion the Buyer may cancel delivery of
Goods. In the event that the buyer cancels delivery
of Goods the Buyer shall be liable for any costs
incurred by the Seller up to the time of cancellation.
17
Privacy Act 1988
17.1 The Buyer and/or
the Guarantor/s agree for the Seller to obtain from
a credit-reporting agency a credit report containing
personal credit information about the Buyer and
Guarantor/s in relation to credit provided by the
Seller.
17.2 The buyer and/or
Guarantor/s agree that the Seller may exchange information
about buyer and Guarantor/s with those credit providers
named in the Application for Credit account or named
in a consumer credit report issued by a reporting
agency for the following purposes:
(a) To assess an application
by Buyer;
(b) To notify other
credit providers of a default by the Buyer;
(c) To exchange information
with other credit providers as to the status of
this credit account, where the Buyer is in default
with other credit providers; and
(d) To assess the credit
worthiness of Buyer and/or Guarantor/s.
17.3 The Buyer consents
to the Seller being given a consumer credit report
to collect overdue payment on commercial credit
(section 18K(1)(h) Privacy Act 1988).
17.4 The Buyer agrees
that Personal Data provided may be used and retained
by the Seller for the following purposes and for
other purposes as shall be agreed between the Buyer
and Seller or required by law from time to time:
(a) provision of Services
& Goods;
(b) marketing of Services
and/or Goods by the Seller, its agents or distributors
in relation to the Services and goods;
(c) analyzing, verifying
and/or checking the Buyer’s credit, payment
and/or status in relation to provision of Services/goods;
(d) processing of any
payment instructions, direct debit facilities and/or
credit facilities requested by Buyer; and
(e) enabling the daily
operation of buyer’s account and/or the collection
of amounts outstanding in the Buyer’s account
in relation to the Services and Goods.
17.5 The Seller may
give information about the Buyer to a credit reporting
agency for the following purposes:
(a) to obtain a consumer
credit report about the Buyer; and/or
(b) allow the credit
reporting agency to create or maintain a credit
information file containing information about the
Buyer.
18
Building and Construction Industry Payments Act
2004
18.1 At the Sellers
sole discretion, if there are any disputes or claims
for unpaid Goods and/or Services then the provisions
of the Building and Construction Industry Payments
Act 2004 may apply.
18.2 Nothing in this
agreement is intended to have the affect of contracting
out of any applicable provisions of the Building
and Construction Industry payments Act 2004 except
to the extent permitted by the Act where applicable.
19
General
19.1 If any provision
of these terms and conditions shall be invalid,
void, illegal or unenforceable the validity, existence,
legality and enforceability of the remaining provisions
shall not be affected, prejudiced or impaired.
19.2 All Goods supplied
by the Seller are subject to the laws of Queensland
and the Seller takes no responsibility for changes
in the law which affect the goods supplied. Should
any claim or remedy require to be processed under
the laws of Queensland then said judicial process
shall only take place in Maroochydore, Queensland
irrespective of the location of the Buyer.
19.3 The Seller shall
be under no liability whatever to the Buyer for
any indirect loss and/or expense (including loss
of profit) suffered by the Buyer arising out of
a breach by the Seller of these terms and conditions.
19.4 In the event of
any breach of this contract by the Seller the remedies
of the buyer shall be limited to damages. Under
no circumstances shall the liability of the Seller
exceed the Price of the Goods.
19.5 The Buyer shall
not set off against the Price amounts due from the
Seller.
19.6 The Seller may
license or sub-contract all or any part of its rights
and obligations with the Buyer’s consent.
19.7 The Seller reserves
the right to review these terms and conditions at
any time in such terms and conditions, that change
will take effect from the date on which the Seller
notifies the Buyer of such change.
19.8 19.8 Neither party
shall be liable for any default due to any act of
God, war, terrorism, strike, lock out, industrial
action, fire, flood, drought, storm or other event
beyond the reasonable control of either party.
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