GENERAL TERMS OF TRADE
These General Terms of Trade apply broadly to all
transactions between us. Documents issued by us in regards
to a transaction will identify, if necessary, special terms and
conditions.
Interpretation
“Good faith” means honesty in fact in the conduct or transaction
concerned and is a notion that is extended to include negotiations
precedent or subsequent to this agreement.
“Business Day” means any day other than a Saturday, Sunday, or
public holiday.
Time is of the essence as it pertains to the performance of its
respective obligation under this Agreement and the transaction
contemplated and is a primary consideration when interpreting the
reasonableness of time in a particular situation.
Reasonable Time. Whenever the Agreement between us requires any
action to be taken within a reasonable time, any time which is not
manifestly unreasonable may be fixed by our consent. What is
reasonable time for taking any action depends on the nature, purpose
and circumstances of such action.
Description of the Parties
We are the “Seller”, that is, the person who sells or contracts to sell
goods or services.
You are the “Buyer”, that is, the person who buys or contracts under
authority of another, whether expressly or impliedly, to buy goods or
services.
“Guarantor” means that person who has furnished, under a separate
agreement, an undertaking in favour of us stating that your
performance under this Agreement will be discharged to the our full
satisfaction. There is no obligation imposed upon us to keep a
Guarantor or Guarantors, as may be required from time to time,
informed as to your performance or non-performance hereunder.
The Subject Matter to be Supplied
“Goods” means those things which are moveable and have been
identified or referenced in some way by the Parties and are for use
primarily in the commercial context, including certificates or coupons
exchangeable for such goods, and including goods, which at the time
of sale or subsequently, are to be affixed to real property whether or
not severable therefrom. Goods must be both existing and identified
before any interest in them can pass.
“Services” means work, skill, labour and services, including, but not
limited to, services furnished in connection with repair, alteration, or
improvement of a premises, or services furnished in connection with
the sale or repair of goods. The supply of services may be based
upon a supply of goods component or vice versa.
The transactions contemplated hereunder may be for the supply of
goods or services or may be some combination of both.
Payment
1. The buyer must pay the price indicated on the invoice for the
goods or services issued by the seller. Any price estimate or
quote made by the seller or any agent or employee of the seller or
contained in advertisements, catalogues, price lists or other
similar matter, is not binding on the seller and the buyer accepts
and acknowledges that the price of the goods and services will be
that as set out in the seller’s invoice. However, if the buyer
satisfies the seller that the price on the invoice is an error then the
seller will reissue the invoice showing the correct price.
2. The seller reserves the right, on giving prior written notice to the
buyer, to vary the price of the goods or services ordered by the
buyer, between the date of the buyer’s order and the date of
delivery to take account of things such as (but without limitation):
(a) any increase in labour costs, costs of materials or services;
(b) change in exchange rates.
3. The seller’s prices are quoted exclusive of taxes, duties and other
imposts which, if chargeable, are payable by the buyer whether
they are imposed or brought into force before or after acceptance
of the buyer’s order.
4. The seller may charge the buyer a handling fee as may from time
to time be specified in the seller’s price lists. Such handling fees
will be shown on the invoice for the goods or services.
5. The buyer agrees to pay on demand all costs (including, without
limitation, legal fees as between solicitor and own client) incurred
by the seller or the seller’s agents relating to the recovery of any
amounts payable by the buyer to the seller under the agreement.
6. Without prejudice to any other remedies the seller may have for
any overdue payment, the seller may charge on a daily basis to
the buyer interest at a rate equal to 5% per annum over the
seller’s principal banker’s overdraft rate from time to time, from
the due date for payment until the overdue amounts are paid.
Interest will accrue after as well as before judgment which the
seller may obtain against the buyer.
7. All payments by the buyer must be made in full without any
deduction or right of set off or counter claim.
8. Without prejudice to any other remedies which the seller might
have:
(a) failure by the buyer to pay for goods in accordance with the
agreement; or
(b) failure by the buyer to otherwise comply with the terms of the
agreement; or
(c) if the seller deems the buyer’s credit to be unsatisfactory,
will entitle the seller to cease supply of future goods or services to
the buyer and cancel any current orders for sale of goods. Upon
such cancellation and without prejudice to any other remedies
which the seller might have, all credit in favour of the buyer will
cease and all payments outstanding will become immediately due
and payable to the seller. The seller may also take possession of
such item of goods and otherwise exercise in relation to the
goods any of its rights whether those rights are as owner and/or
unpaid seller or otherwise and whether those rights are conferred
by common law, contract, statute or in any other way.
9. In accepting any payments from the buyer, the seller will not be
bound by any conditions or qualifications or terms which the
buyer may have attached to those payments.
Delivery
1. Delivery is deemed to be made:
(a) when the buyer or the buyer’s agent is given possession of
the goods at the seller’s premises or elsewhere (loading is
then at the buyer’s risk); or
(b) when the goods arrive at the buyer’s premises (unloading is
then at the buyer’s risk);
whichever is the earlier.
2. On delivery:
(a) the goods are at the buyer’s sole risk; and
(b) insurance is the buyer’s responsibility.
3. The seller will choose the carrier and method of transportation of
the goods, unless otherwise agreed in writing by the seller. The
seller will dispatch the buyer’s order for goods in one delivery or
by instalments (where the seller accepts an order which provides
for delivery by instalments). Failure to deliver any instalment will
not entitle the buyer to refuse to accept delivery or any remaining
instalments.
4. Where the buyer requests a particular method of delivery and if
the seller agrees (in writing) then the buyer will cover the cost of
delivery by that method from the point of dispatch of the goods or
service by the seller.
5. Any quotations of delivery times agreed by the seller are made in
good faith but are estimates and not commitments and no delay
in delivery will entitle the buyer to refuse to accept delivery or
cancel its order.
Shortages
Liability for shortages in the quantity of the goods delivered is limited to
making up the shortages. No claim for shortages in quantity will be
allowed unless the buyer gives written notification of the shortage in
writing within seven days of the delivery and gives the seller
reasonable opportunity to take all necessary steps to investigate the
claim.
Retention of Title
1. It is expressly agreed that ownership is reserved and legal and
equitable title to and property in all goods supplied by the seller is
and remains vested in the seller until payment in full has been
received by the seller in respect of such goods and all other
moneys owing by the buyer to the seller.
2. Until the buyer has paid the seller in full for the goods the buyer
must not sell (unless such sale is in the ordinary course of the
buyer’s business), dispose of, do anything that would render the
goods liable to be seized or distrained and must not grant a
security interest or lien over the goods. However, if the goods
sold in the ordinary course of the buyer’s business, the buyer
must, if the buyer has not already paid the seller for the goods,
hold the proceeds of sale of such goods on trust for the seller and
separate from the buyer’s own money and immediately pay such
proceeds to the seller on request.
3. Unless the buyer has sold the goods in the ordinary course of its
business, the buyer will store the goods in such a way that it is
GENERAL TERMS OF TRADE
clearly identified as the property of the seller and keep the goods
in good order and condition.
4. For the purpose set out in clause 9 or for the purposes of
inspecting each item of goods or ensuing due compliance by the
buyer with the provisions of the agreement the seller and its
agents are irrevocably authorised to enter any premises where
the seller believes the goods may be, which may include the
premises of any other party. The buyer will indemnify the seller
on demand in respect of any cost or liability incurred by the seller
in exercising its rights under this clause.
Seller’s Liability and Maintenance Guarantee
1. The buyer acknowledges that it must rely upon its own judgment
as to the nature, quality and condition of the goods supplied by
the seller and as to their sufficiency for any use or purpose and
the buyer acknowledges that the seller is under no duty to
ascertain the suitability of the goods for any purpose whatsoever
and that no such representation has been made by the seller.
2. In the case of goods not manufactured by the seller, the buyer is
entitled to only such benefits as the seller may receive under any
guarantee given to the seller by the manufacturer of the goods.
The seller will not be liable for consequential or other damages.
3. Any warranties expressed or implied by law or statute, in respect
of the goods whether in respect of quality, fitness for intended
purposes or otherwise, are excluded to the extent that such law or
statutes permits exclusion.
4. If the goods are manufactured by the seller and if the seller is
otherwise ever liable to the buyer, the liability of the seller, arising
from any defect or non-compliance of the goods is, subject to the
Consumer Guarantees Act 1993, limited to the replacement or
repair of the goods within the guarantee period if stated by the
seller, or otherwise within 12 months of the date of delivery of the
goods provided that the liability of the seller is in all cases limited
to the amount of the invoice price of the goods. At the termination
of the relevant guarantee period all lability on the seller’s part
ceases.
5. The liability of the seller under clause 4 does not cover:
(a) any defect caused or contributed to by the buyer; or
(b) any attempt to repair the defective goods, where such repair
is done by any person or persons not authorised by the
seller to make repairs.
6. If the seller elects to replace any defective goods, the buyer will
be responsible at its cost and at its risk for shipment of the
defective goods to the seller’s premises.
7. The seller’s liability under clause 4 is for the benefit of the buyer
only and the seller has no liability to any purchaser of the goods
from the buyer. The buyer will indemnify the seller against any
claims by the buyer’s employees, agents, purchasers or other
persons in respect of any loss, damage or injury arising from any
defect or non-compliance of the goods.
8. If the buyer is acquiring the goods for the purposes of a business,
then all the guarantees and remedies in the Consumer
Guarantees Act 1993 are excluded.
Personal Property Securities Act
1. The buyer grants to the seller a security interest in the goods and
the proceeds of the goods and the buyer acknowledges that the
agreement creates a purchase money security interest in the
goods and the proceeds of the goods. The buyer will, if the seller
requests, sign any documents (including any new agreements),
provide all necessary information and do anything else required
by the seller to ensure that the seller’s purchase money security
interest is a perfected security interest.
2. The buyer will not enter into any security agreement that permits
any other person to register any security interest in respect of the
goods or the proceeds.
3. If the goods are for the buyer’s business use the buyer agrees, to
the extent Part 9 of the PPSA applies, that it will have no rights
under Part 9 (Enforcement) of the PPSA. For example, but
without limitation:
(a) the buyer will have no rights under sections 114(1)(a) (to
receive a notice of sale), section 117(1)(c) (relating to
distribution of surplus), and section 133 (reinstating the
agreement);
(b) the buyer waives its rights under section 116 (to receive
statement of account), section 119 (to recover surplus) and
sections 120(2) and 121 (to receive notice of any proposal to
retain the goods and object to any proposal).
4. The buyer waives its right under the PPSA to receive a copy of
any verification statement or financing change statement.
5. The buyer agrees that where the seller has rights in addition to
those in Part 9 of the PPSA, those rights will continue to apply.
6. For the purpose of this clause “PPSA” means the Personal
Property Securities Act 1999.
7. The expressions “personal property”, “purchase money security
interest”, “security agreement”, “security interest”, “perfected
security interest”, “verification statement” and “financing change
statement” have the meanings given to them under, or in the
context of the PPSA.
General
1. The seller may, and the buyer may not, vary or replace the
agreement and it will be a condition of the seller continuing to
supply goods to the buyer that the buyer agrees to sign any
variation or replacement of the agreement if required by the
seller.
2. To be effective, any waiver of any or all of the terms and
conditions in the agreement by the seller must be in writing.
3. The buyer may not assign all or any of its rights or obligations
under the agreement without the prior written consent of the
seller.
4. The seller is not bound, unless otherwise stated in the agreement,
by any error or omission on any invoice, order form or other
document or statement issued by the seller.
5. Where the seller has rights and remedies at law or otherwise in
addition to the rights set out in the agreement, those rights and
remedies will continue to apply.
Access
The buyer irrevocably permits the seller or any person authorised by
the seller in writing, upon giving reasonable notice to enter any
premises where the goods are reasonably believed to be held. The
buyer also agrees to indemnify and hold the seller harmless for
reasonable costs of removal, enforcement, and legal action in respect
of the removal of goods the subject of this Agreement.
The effects of statutory provisions
Nothing in this provision purports to operate to exclude statutory
provisions where it is an offence to do so or if it renders these terms
and conditions invalid.
Notices
Notices, demands, or requests provided for or permitted to be given
must, at all times, be in writing and may be given to the address
identified on the most recent transaction document by—
• Personal Delivery
• Express or Registered Post with delivery confirmation
• Facsimile Transmission with receipt confirmation
Privacy Act and Credit Information
The buyer and the Guarantor jointly and severally acknowledge and
agree that the seller is authorised to make approaches to any credit
reporting agency to obtain a report about the creditworthiness of either
the Buyer or the Guarantor or both.
The buyer and the Guarantor jointly and severally authorise the seller
to engage in the exchange of information with a credit reporting
agency or with other such parties as are necessary to give effect to the
contract and to the ongoing relationship between the parties hereto.
The buyer and the Guarantor jointly and severally acknowledge that
the information referred to in the previous paragraph may include
information about the creditworthiness, credit standing, credit history,
credit capacity, and credit providers of either the Buyer or the
Guarantor or both.