Signed On's Trading Terms

Signed-On (Aust) Pty Ltd - Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd - 2004
1. Definitions
1.1 “Seller” shall mean Signed-On (Aust) Pty Ltd 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 supra).
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 of Goods
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 Buyer’s 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conditions are irrevocable and can only be rescinded in accordance with these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 authorised 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
unauthorised 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 not 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 authorisation 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 clause 4.2) which shall be binding upon
the Seller provided that the Buyer shall accept in writing the Seller’s quotation
within thirty (30) days.
4.2 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.
4.3 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.
4.4 Time for payment for the Goods shall be of the essence and will be stated on
the “Plan of Action”, invoice, quotation or any other order forms.
4.5 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.
4.6 At the Seller’s sole discretion, payment for approved Buyers shall be made by
instalments in accordance with the Seller’s delivery/payment schedule as stated
in the “Plan of Action”.
4.7 At the Seller’s sole discretion, payment for approved Buyer’s shall be due
thirty (30) days from the invoice date.
4.8 At the Seller’s sole discretion, for certain approved Buyers payment will be due
seven (7) days following the date of the invoice.
4.9 Payment will be made by cheque, or by bank cheque, or by credit card, 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 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 Where there is no agreement that the Seller shall send the Goods to the Buyer,
delivery to a carrier at limited carrier’s risk at the expense of the Buyer is
deemed to be delivery to the Buyer.
5.5 The Seller may deliver the Goods by separate instalments (in accordance with
the agreed delivery schedule). Each separate instalment shall be invoiced and
paid for in accordance with the provisions in this contract of sale.
5.6 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.
5.7 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 rata to the discrepancy.
5.8 The failure of the Seller to deliver shall not entitle either party to treat this
contract as repudiated.
5.9 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 and
that the Seller shall not be bound by nor responsible for any term, condition,
representation or warranty other than the warranty given by the Manufacturer
which warranty shall be personal to the Buyer and shall not be transferable to
any subsequent Buyer.
8. Defects / Returns
8.1 The Buyer shall inspect the Goods on delivery and shall within seven (7) days
of delivery notify the Seller of any alleged defect, shortage in quantity, damage
or failure to comply with the description or quote. 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.
8.2 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 at the Buyer’s cost within fourteen (14) days of the
delivery date;
(c) the Seller will not be liable for Goods which have not been stored or used in a
proper manner;
(d) the Goods are returned in the condition in which they were delivered and with
all packaging material, brochures and instruction material in as new condition
as is reasonably possible in the circumstances.
8.3 The Seller may (in its discretion) accept the Goods for credit but this may incur
a handling fee of 20% of the value of the returned Goods plus any freight.
8.4 Whilst every care is taken by the Seller to carry out the instructions of the
Buyer, it is the Buyers responsibility to undertake a final proof reading of the
Goods. The Seller shall be under no liability whatever for any errors not
corrected by the Buyer in the final proof reading. Should the Buyers alterations
require additional proofs this shall be invoiced as an extra.
9. Warranty
9.1 Subject to the conditions of warranty set out in Clause 9.2 the Seller warrants
that if any defect in any workmanship manufactured by the Seller becomes
apparent and is reported to the Seller within twelve (12) months of the date of
delivery (time being of the essence) then the Seller will either (at the Seller’s
sole discretion) repair the defect or replace the workmanship.
9.2 The conditions applicable to the warranty given by Clause 9.1 are:
(a) The warranty shall not cover any defect or damage which may be caused or
partly caused by or arise through:
i) Failure on the part of the Buyer to properly maintain any Goods; or
ii) Failure on the part of the Buyer to follow any instructions or guidelines
provided by the Seller; or
iii) Any use of any Goods otherwise than for any application specified on a
quote or order form; or
iv) The continued use of any Goods after any defect becomes apparent or
would have become apparent to a reasonably prudent operator or user;
or
v) Fair wear and tear, any accident or act of God.
(b) The warranty shall cease and the Seller shall thereafter in no circumstances be
liable under the terms of the warranty if the workmanship is repaired, altered or
overhauled without the Seller’s consent.
(c) In respect of all claims the Seller shall not be liable to compensate the Buyer
for any delay in either replacing or repairing the workmanship/Goods or in
properly assessing the Buyer’s claim.
9.3 For Goods not manufactured by the Seller, the warranty shall be the current
warranty provided by the manufacturer of the Goods. The Seller shall be under
no liability whatsoever, except for the express conditions as detailed and
stipulated in the manufacturers warranty.
9.4 The Seller shall be under no liability whatever to the Buyer for any variation
(beyond the reasonable control of the Seller) in colours between the approved
prototype and the finished Goods.
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 those designs and drawings shall remain vested in the Seller, and
shall only be used by the Buyer at the Seller’s discretion.
11.2 Conversely, in such a situation, where the Buyer has supplied drawings, the
Seller in its sale conditions may look for an indemnity (the specifications and
design of the Goods (including the copyright, design right or other intellectual
property in them) shall as between the parties be the property of the Seller).
11.3 Where any designs or specifications have been supplied by the Buyer for
manufacture, by or to the order of the Seller then the Buyer warrants that the
use of those designs or specifications for the manufacture, processing,
assembly or supply of the Goods shall not infringe the rights of any third party.
11.4 The Buyer warrants that all designs or instructions to the Seller will not cause
the Seller to infringe any patent, registered design or trademark in the
execution of the Buyer’s order.
11.5 Where the Designer has designed or drawn Goods for the Buyer then the Buyer
undertakes to acknowledge the Designers design or drawings in the event that
images of the Goods are utilised in advertising or marketing material by the
Buyer.
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 second month after supply of
the Goods or Services an immediate amount of the greater of $20.00 or 10.00%
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 12.1 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 the Goods
shall be kept separate until the Seller shall have received payment and all other
obligations of the Buyer are met.
13.2 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 to obtain
ownership or any other interest in the Goods shall cease.
(b) 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, without being responsible for any
damage thereby caused.
(c) 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.
(d) The Buyer shall not deal with the money of the Seller in any way which may
be adverse to the Seller.
(e) 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 recognised and until then the Seller’s ownership of rights in respect of the
Goods shall continue.
(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 the Buyer has the Seller’s authority to convert the goods into
other products and 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 lodge 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 favour 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. Cancellation
15.1 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.
15.2 At the Sellers sole discretion the Buyer may cancel delivery of Goods and/or
Services. In the event that the Buyer cancels delivery of Goods and/or Services
the Buyer shall be liable for any costs incurred by the Seller up to the time of
cancellation.
16. Privacy Act 1988
16.1 The Buyer and/or the Guarantor/s agree for the Seller to obtain from a creditreporting
agency a credit report containing personal credit information about
the Buyer and Guarantor/s in relation to credit provided by the Seller.
16.2 The Buyer and/or the 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.
16.3 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).
16.4 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) analysing, 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.
16.5 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.
17. Unpaid Seller’s Rights To Dispose Of Goods
17.1 In the event that:
(a) the Seller retains possession or control of the Goods; and
(b) payment of the Price is due to the Seller; and
(c) the Seller has made demand in writing of the Buyer for payment of the Price in
terms of this contract; and
(d) the Seller has not received the Price of the Goods,
then, whether the property in the Goods has passed to the Buyer or has remained with
the Seller, the Seller may dispose of the Goods and may claim from the Buyer
the loss to the Seller on such disposal.
18. Lien & Stoppage in Transit
18.1 Where the Seller has not received or been tendered the whole of the price, or
the payment has been dishonoured, the Seller shall have:
(a) a lien on the goods;
(b) the right to retain them for the price while the Seller is in possession of them;
(c) a right of stopping the goods in transit whether or not delivery has been made
or ownership has passed; and
(d) a right of resale,
(e) the foregoing right of disposal,
provided that the lien of the Seller shall continue despite the commencement of
proceedings or judgement for the price having been obtained.
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 Victoria and the
Seller takes no responsibility for changes in the law which affect the Goods
supplied.
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 without the Buyer’s consent.
19.7 The Seller reserves the right to review these terms and conditions at any time
and from time to time. If, following any such review, there is to be any change
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 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.