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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irrevocable and can only be rescinded in accordance with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. |
