1. Description of Goods
(a) The goods the subject of this contract (hereinafter called "the goods") shall be those goods described in the company's invoice.
(b) 0n delivery the purchaser shall check the quantity and description of goods delivered against the description on the invoice and shall give notice of any alleged deficiency or irregularity in quantity or description within 48 hours from the time of delivery. Should such notice not be given within that time, the goods actually delivered shall be deemed to be in accordance with the invoice and the purchaser shall not thereafter make any such claim or take any action in relation to any alleged deficiency or irregularity.
(c) Specifications of goods given in any brochures, letters, price lists, data sheets, or other documents of the company or supplied by the company are given to identify the goods generally and do not form part of the description of the goods.
2. Title, Risk
(a) Notwithstanding delivery of the goods, no title in the goods whether legal or equitable shall pass to the purchaser until: -
(i) the full amount of the purchase price of the goods has been paid; and
(ii) the full amount of the purchase price of all other goods (being goods sold by the company to be purchased under any other contract and which have been delivered at the time of payment under this contract) has been paid. PROVIDED THAT where any payment is made by cheque, the payment shall, not have been made until the cheque has been honoured upon presentation and PROVIDED FURTHER THAT pending payment as provided for in this clause, the purchaser agrees to hold the goods as bailee of the company and shall re-deliver the goods to the company in the event that the purchaser makes default in making any of the payments referred to in this clause;
(b) The goods shall be at the purchaser’s risk from the time the goods are loaded at the company's storeroom for delivery to the purchaser, notwithstanding that title and/or property in the goods may not have passed to the purchaser. It shall be the purchaser’s obligation to effect full insurance upon the goods from such time as the goods are at the purchaser's risk. The company shall not be responsible for loss of, damage to, or destruction of goods during transit or otherwise whilst the goods are at the purchaser's risk.
(a) Unless otherwise stated on the invoice, the place for delivery of the goods shall be the place at which the goods are stored by the company, and the company's obligation to deliver shall be satisfied if the company makes the goods available for collection by the purchaser at the place for delivery.
(b) In the event that the company agrees to deliver the goods to a location nominated by the purchaser, the cost of delivery shall be paid by the purchaser and shall be charged at the rate charged to the company by the carrier effecting the delivery. Goods will be delivered by the cheapest suitable method unless otherwise stipulated at the time of ordering or unless other general delivery arrangements are made with the client.
(c) It shall be the purchaser's responsibility to be at the place and at the time arranged for delivery, and to make available a suitable area at which to off-load the goods. In the event that the purchaser or the purchaser's agent is not in attendance at the site and at the time arranged for delivery, or in the event that there is no suitable area to off-load the goods, the company reserves the right to:-
(i) Off-load the goods at the nearest point suitable to off-load the goods, in which such case the company shall not be responsible for any loss of or damage to the goods arising therefrom or;
(ii) Return the goods to the company's premises in which such case the purchaser shall pay the additional cost of the attempted delivery at the rates charged to the company.
4. Time for Delivery
(a) The company does not warrant delivery of the goods by any date and shall not be liable in damages or otherwise by reason of any delay in delivery of whatsoever nature and for whatever reason.
(b) If in the company's written quotation it is expressed that delivery of the goods shall be made by a particular date or within a particular time, then subject to the provisos to this paragraph, the company warrants delivery by that date or within that time PROVIDED ALWAYS THAT the purchaser agrees that any such expressed time for delivery shall not be of the essence of this contract and PROVIDED FURTHER THAT the company shall not be responsible for delays or non delivery due to war, strike or combination of workers, destruction of or damage to the company's plant, interference by Government or semi-Government authorities, legislative prohibition or restrictions, or any other cause beyond the control of the company and PROVIDED FURTHER THAT in the event of breach by the company of its obligations to deliver, the company shall not be liable to the purchaser for any amounts payable by the purchaser by way of damages (whether liquidated or otherwise) under any contract entered into by the purchaser with a third party for the purpose of which or in connection with which the goods are supplied.
(a) Unless otherwise provided on the form of quotation, invoice, or delivery slip, the price stated on those documents does not include GST which charges shall be additional to the stated price and payable with the stated price.
(b) All prices of goods given in any brochures, letters, price list, data sheets or other documents of the company or provided by the company are nett of GST and subject without notice.
(c) The company reserves the right to charge at that price charged by the company as at the date of delivery in respect of goods of the same description (the "current price").
(d) The term "purchase price" wherever it appears in these conditions means the stated or current price together with any GST statutory imposts, or delivery charges payable by the purchaser pursuant to these conditions.
(a) Unless suitable credit has been established with the company, payment shall be made in cash on or before delivery of the goods. Payment shall be made at the company's place of business at 33 Fulcrum Street, Richlands, Queensland, or at such other place as the company may from time to time direct.
(b) Suitable credit shall have been established if and only if the company has advised the purchaser that it has opened an account in its name in which such case the following subclauses shall apply.
(c) Notwithstanding that suitable credit has been established with the company, the company reserves the right at any time to discontinue or suspend credit to the purchaser and require payment in cash on delivery.
(d) Subject to the other provisions in this contract and subject to express contrary agreement made with the customer and recorded on the delivery docket and invoice where suitable credit has been established shall be made 14 days from date of invoice.
7. In the event of delivery by instalments or in the event that part only of the order is delivered at any particular time, each instalment deliverable or each portion of the goods delivered shall be deemed to be sold under a separate contract incorporating the terms and conditions of this contract so far as they are applicable. In the event of the purchaser being in breach of payment for any instalment of goods delivered or portion of the goods delivered, the company, without prejudice to its other rights, shall be entitled to treat the entire contract as repudiated, shall not be bound to deliver any other instalments of goods under the contract, and shall be entitled to recover payment for the portion or instalment of such goods already delivered.
8. In the event that the purchaser does not make payment as required, the purchase price outstanding may at the option of the company bear interest (without prejudice to the rights given to the company upon default pursuant to Clause 14) at the rate of interest from time to time charged by the National Australia Bank on MasterCard advances from the due date of payment and in addition credit facilities may be withdrawn.
9. Warranties, Representations, Exclusions of Liability
The purchaser acknowledges and agrees;
(a) That no statement, promise, warranty, assurance or representation has been made to the purchaser otherwise than is contained in the company's written quotation or in the delivery slip.
(b) That in the choice of goods and in the assessment of the suitability of the goods for the purposes required, the purchaser has relied on the purchaser's own knowledge skill and judgment or on the knowledge, skill and judgment of some other person, and has not relied upon the knowledge, skill and/or judgment of the company or of the company's officers, employees, or agents.
(c) That the purchaser has not advised the company or otherwise indicated to the company either expressly or otherwise that the goods are required by the purchaser for any particular purpose.
(d) That the company, its employees or agents have not given to the purchaser any information of any nature whatsoever which the purchaser has acted upon in any way whatsoever either in entering into this agreement or otherwise.
10. Description of uses, capacities, durability, colour and otherwise contained in the company's brochures, letters, price-lists, data sheets or other documents provided by the company are given as a general guide only and the company shall not be liable for any misdescription, omission, or inaccuracy in relation thereto.
11. Save as aforesaid and subject to the provisions of the Trade Practices Act. the parties expressly agree that all terms, warranties, and conditions expressed or implied by law, statute or otherwise are hereby negatived and excluded.
12. Claims, Limit of Liability
Paragraph 12(a) does not apply where the purchaser is a consumer within the meaning of the Trade Practices Act 1974. Without derogating from any other term or condition in the agreement:-
(a) The purchaser shall inspect the goods immediately upon their delivery and the goods are deemed to be accepted by the purchaser unless the purchaser gives notice to the company of any alleged defects in the goods, unfitness for the particular purpose for which they were supplied (if any), unmerchantable quality, or failure to meet specifications within 48 hours of delivery of the goods. In default of such notice, the goods shall be deemed to be suitable for the purpose for which they were supplied, of merchantable quality, in accordance with specifications, and otherwise free of any defect and the company shall not recognize any claim in any of these regards.
(b) The liability of the company, if any, for faulty workmanship, unsuitability, unmerchantable quality, failure to meet specifications, loss or damage in transit or whatever shall (except in the case where the purchaser is a consumer and the goods are of a kind that might ordinarily be acquired for personal, domestic or household use or consumption) be limited to:-
(i) Replacement of the goods or supply of equivalent goods,
(ii) Repair of the goods,
(iii) Payment to the purchaser of the cost of replacing the goods or of acquiring equivalent goods,
(iv) Payment to the purchaser of the cost of having the goods repaired, whichever obligation the company shall choose. Without derogating from the generality of the foregoing, the company shall not be liable for any consequential loss.
(c) The purchaser shall notify the company immediately upon the purchaser, its employees or agents becoming aware of any alleged fault or defect in the goods, unsuitability or unfitness for the proposed use of the goods, failure to comply with or to meet specifications, loss or damage in transit, or any other alleged cause of action in relation to the goods arising out of the delivery or failure to deliver the goods; and shall bring any action and/or commence any proceedings in relation thereto within six months of the date of delivery of the goods or the date that the goods ought to have been delivered and not thereafter.
13. Return of the Goods
(a) Without derogating from the generality of Clause 12 the company may at its discretion accept for credit return of goods subject to this
clause and provided that:-
(i) The goods are returned to the company within seven days from the date of delivery, and
(ii) The goods have not been used and the goods or the packaging of the goods have hot been handled, damaged or interfered with to an extent inconsistent with a, reasonable examination by the purchaser for the purposes of Clause12(a) and,
(iii) The goods being returned are accompanied by the invoice number or delivery slip and the full name and address of the purchaser as shown on the delivery slip or invoice and the reason for the return of the goods is supplied by the purchaser.
(iv) The goods have not been ordered specifically by the company for a purchaser.
(v) Where the goods are marked with an expiry date the goods are returned at least two months prior to that expiry date.
(b) The price of goods that are returned by the purchaser and accepted by the company shall be credited by the company to the purchaser's account with the company.
(c) The cost of re-delivery of goods returned to the company must be paid by the purchaser before the company will accept the return of the goods.
(d) The company may charge a ten per cent (10%) restocking fee when goods are returned by the purchaser under the provisions of this clause unless the purchaser at the time of the return of the goods places an order with the company for goods of an equal value to those being returned.
(a) If the purchaser shall neglect or fail to make any payment provided for herein on the due date (which such neglect or default shall constitute a repudiation of the contract), or refuse or neglect to take delivery of the goods or any instalment thereof, or (being a company) enter into a scheme of arrangement for the benefit of its creditors, resolve that it be wound up, or have petition for winding up presented against it, or (being an individual) petition for his bankruptcy, assign his estate to a trustee for the benefit of his creditors, or have a petition for bankruptcy presented against him; or fail to comply with any obligations herein contained; then the company shall be at liberty in addition to any other rights and remedies conferred upon if at law or at equity:-
(i) To sue the purchaser for damages for breach of contract or,
(ii) To rescind this contract and,
-Recover possession of the goods and/or,
-Forfeit any deposit paid (which the purchaser acknowledges to be pre-estimated liquidated damages) and/or,
-Sue the purchaser for damages for breach of contract. In the event that the company elects to rescind this contract, it shall in addition to any other rights and remedies provided herein be at liberty to immediately enter upon the premises of the customer, repossess and resume possession of the goods and/or to resell the goods in such manner and upon such terms and conditions as the company may think proper. Any deficiency in price on such resale and the expenses of and incidental to any repossession and to the preparation for sale and such re-sale and any abortive attempt to re-sell shall be paid to the company by the purchaser and shall be recoverable as a liquidated sum. Nothing herein contained shall preclude the company from recovering from the purchaser as and by way of damages the amount of profit which would have been derived had the purchaser completed this contract.
(b) Upon the company taking re-delivery of the goods for non-payment of part of the purchase price, the company shall account to the purchaser for that part of the purchase price paid by the purchaser less any losses or expenses incurred as a result of the purchaser's breach of contract.
15. Jurisdiction, Applicable Law, Proceedings
(a) The applicable law for all purposes of this agreement shall be the law of Queensland.
(b) Should the purchaser require to enforce the terms of the agreement or otherwise institute action in relation to the agreement, then the purchaser shall commence that action only in the Supreme Court, District Court, or Magistrates Court (as the nature of the proceedings dictates) in Brisbane.
(c) Should the company require to enforce the terms of the agreement or otherwise institute action in relation to the agreement, then it may commence that action either ( at its option) in the Supreme Court, District Court, or Magistrates Court (as the nature of the proceedings dictates) in Brisbane or in such other Court in which it would by law be entitled to commence action but for the provisions of this agreement.
(d) Service of proceedings upon the purchaser in any such action may be effected by the company or its solicitors sending by registered post a copy of the proceedings to the purchaser at the address of the purchaser as appears in the then current telephone directory, and if no such address appears, at the address of the purchaser last known to the company.
The provisions hereof shall not be construed in such a manner as to exclude those conditions and warranties which are implied into this contract by the Trade Practices Act 1974.
17. Should any term or provision of this contract or any part thereof be for any reason held by a Court of competent jurisdiction to be invalid or unenforceable, that provision or part of a provision shall be deemed to be severable and the validity and enforceability of the remainder of the contract shall be in no way affected thereby.
18. In any proceedings by the company against the purchaser for the recovery of moneys due and owing by the purchaser to the company in respect of the whole or part of the price of the goods, the certificate of the manager for the time being of the company stating the amount due by the purchaser to the company in respect of the price of the goods, the amount paid by the purchaser, and/or the interest rate chargeable to the purchaser pursuant to clause 8 hereof, shall be prima facie evidence as to those matters.
19. The headings and sub-headings contained in these conditions are included for convenience only and shall not affect the construction of the terms and conditions contained herein.
20. Incorporation in Other Dealings, Limit of Contract
Subject to express contrary agreement in writing and signed on behalf of the company, these terms and conditions shall, so far as is applicable and making all changes necessary having regard to the context, be incorporated in any contract arising from future orders placed by the purchaser with the company.
21. The foregoing terms and conditions contain the whole of the terms upon which the goods are supplied (subject only to any express special terms or variations given in the company's written quotation or on the delivery slip); constitute an entire agreement between the parties; and shall supersede all previous and other communications and representations either oral or in writing.