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Terms and Conditions

Terms and Conditions for the Supply of Goods and Services

January 2013

 

1. Contract

1.1       The Quotation and Authorisation must be read in conjunction with these   Terms and Conditions.

1.2       The Seller may withdraw the Quotation at any time prior to its acceptance by the Customer.

1.3       If the Customer accepts the Quotation, the Quotation, Authorisation and the Terms and Conditions together form the Contract.

 

2. Purchase of Services

2.1        Unless otherwise stated, all prices quoted by the Seller are exclusive of GST.

2.2        Prices quoted are current as at the date of issue of the Quotation and remain current for 7 days after the issue of the Quotation. These prices include the cost of:

(1)      manufacturing the Products; and

(2)      providing such other Services as agreed between the Seller and the Customer.

2.3        The Seller will issue the Customer with a tax invoice in accordance with the requirements of the law relating to GST.

2.4        If the Seller is liable by law for any GST on any payment by the Customer to the Seller under the Contract, the Customer must pay the Seller the amount of the GST.

2.5        If the Customer has a credit account with the Seller, then the Customer must pay for the Services by cheque, electronic funds transfer or cash within 30 days of the date of issue of a tax invoice or within such other period as the Seller may agree with the Customer.  If the Customer does not have a credit account with the Seller, then the Customer must pay for the Services prior to delivery.

2.6        Late payment fees of $10 may be charged by the Seller to the Customer where all or any part of an amount set out in a tax invoice remains unpaid after the period referred to in clause 2.5.  The Customer will incur these late payment fees each time the Seller sends the Customer a reminder or makes a telephone call that a tax invoice remains outstanding.

2.7        Interest may also be charged by the Seller to the Customer where all or any part of an amount set out in a tax invoice remains unpaid after the period referred to in clause 2.5 at the rate charged by Westpac Banking Corporation ABN 33 007 457 141 from time to time on overdraft accounts of $100,000 or more, calculated monthly.

 

3. Insolvency and trustee provisions

3.1        In the event that monies due by the Customer to the Seller are not paid within the 30 day period referred to in clause 2.5 or the Customer becomes bankrupt or suffers an insolvency event as characterised in the Corporations Act 2001 (Cth), then all monies owing by the Customer to the Seller will become immediately payable without the necessity for any demand for payment of those monies being made by the Seller.

3.2        If the Customer is a trust or a trustee, the Customer agrees that the trustee will be liable for all debts of the Customer and that the assets of the trust will be available to meet all debts due to the Seller.

 

4. Customer’s warranties and indemnities

4.1        The Customer warrants that:

(1)      if it is a company, it is validly existing under the laws of its place of incorporation;

(2)      it is empowered to enter into the Contract and to do all things that will be required by the Contract;

(3)      it will provide the Seller with all information required by the Seller in providing the Services;

(4)      the Customer’s Goods do not contain potentially dangerous, damaging or explosive items;

(5)      it is either the owner or the authorised agent of the owner of the Customer’s Goods; and

(6)      the Customer’s Goods have been insured by the Customer and, subject to clause 11, the Seller takes no responsibility for insuring the Customer’s Goods or for any loss or damage that occurs to the Customer’s Goods.

4.2        Subject to clause 11, the Customer indemnifies, and keeps indemnified, the Seller from any loss, damage, expense, penalty, fine or liability arising from a breach of the warranties set out in this clause 4 or the Terms and Conditions.

 

5. Cancellation of Authorisation

5.1        The Customer must not cancel an Authorisation after the Customer’s acceptance of the Quotation unless the Seller agrees to such cancellation in writing.

5.2        In the event of such cancellation unless otherwise agreed by the Seller, the Customer will reimburse and indemnify the Seller for any costs incurred by the Seller in respect of the Services up to the date of cancellation.

 

6. Lien

6.1        Whilst they are in the Seller’s possession, the Seller has a general lien on the Products and the Customer’s Goods for all payments due or which become due on any account for any of the Services provided by the Seller.

6.2        If the Customer does not pay all amounts owing to the Seller, or the Customer fails to take delivery of the Products and, if applicable, the Customer’s Goods, following completion of the Services, the Seller may without notice:

(1)      store the Products and, if applicable, the Customer’s Goods as the Seller thinks fit at the Customer’s risk and expense; or

(2)      sell all or any of the Products and, if applicable, the Customer’s Goods as the Seller thinks fit and apply the proceeds to discharge the lien and costs of sale.

6.3        Any balance due to the Seller following a sale pursuant to clause 6.2(2) will be a debt which is immediately due and payable by the Customer to the Seller.

 

7. Delivery

7.1        Delivery of the Products and, if applicable, the Customer’s Goods, to the Customer will be effected by the Seller’s carrier physically delivering the Products and, if applicable, the Customer’s Goods, to the address specified in the Quotation or such other address as notified in writing to the Seller by the Customer, at which point risk in and title to the Products passes to the Customer.  Deliveries will be made at the seller’s discretion so as to enable an orderly delivery schedule to be maintained by the seller.  Deliveries may not be made to every area each day, but rather on days to coincide with the seller’s delivery schedule.

7.2        Notification by the Seller’s carrier on the Seller’s delivery docket will be conclusive evidence of delivery of the Products and, if applicable, the Customer’s Goods, to the Customer.

7.3        The Customer will be solely responsible for any loss or damage that occurs during the unloading of the Products and, if applicable, the Customer’s Goods, at the address specified in the Quotation or such other address as notified in writing to the Seller by the Customer.

7.4        If the Customer refuses to accept delivery of the Products and, if applicable, the Customer’s Goods, then the provisions of clause 6.2 of these Terms and Conditions will apply In such an event, the Seller will be entitled to payment for the Services as if they were delivered and in addition to any rights and remedies specified in the Terms and Conditions and under law.

7.5        To the extent permitted by law and under the TPA, the Seller does not accept responsibility in tort or contract or otherwise for failure to deliver or delay in delivering the Products and, if applicable, the Customer’s Goods, to the Customer (whether caused by negligence, wrongful act or default of the Seller, or by any other cause whatsoever).

7.6        The Seller is not liable for any claim made by the Customer for non-delivery, shortage in supply or damage to the Products and, if applicable, the Customer’s Goods, that occurs during the course of delivery unless that claim is in writing and delivered to the Seller within 1 month of the delivery date specified in the Quotation.

 

8.  Storage

8.1        The Customer acknowledges that the Seller does not provide professional storage facilities for the Customer’s Goods.  However, the Seller will accept storage of the Customer’s Goods for a short period of time while the Products are manufactured to accommodate the Customer’s Goods or in anticipation of the Customer’s Goods being packed into the Products (refer clause 9).

8.2        If the Customer’s Goods are left at the Seller’s premises for more than 7 days, the Seller may charge the Customer for storing the Customer’s Goods at the Seller’s premises.

8.3        To the extent permitted by law and under the TPA:

(1)      all Customer’s Goods stored at the Seller’s premises are entirely at the risk of the Customer; and

(2)      the Seller does not accept any responsibility in tort or contract or otherwise for loss of or damage to the Customer’s Goods stored at the Seller’s premises whether caused by negligence, wrongful act or default of the Seller, or by any other cause whatsoever.

 

9. Packing

9.1        The Customer acknowledges that the Seller does not provide professional packing services for the Customer’s Goods.  However, the Seller may, at the Customer’s request, pack the Customer’s Goods into the Products.

9.2        To the extent permitted by law and under the TPA, the Seller does not accept any responsibility in tort or contract or otherwise for loss of or damage to the Customer’s Goods as a result of such packing by the Seller whether caused by negligence, wrongful act or default of the Seller, or by any other cause whatsoever.

 

10. Risk

10.1      All Products supplied by the Seller to the Customer in the course of providing the Services are at the total risk of the Customer on and from the time the Products are delivered to the address specified in the  Quotation or such other address as notified in writing to the Seller by the Customer.

10.2      All Customer’s Goods supplied by the Customer to the Seller for the purpose of the Seller providing the Services are provided entirely at the risk of the Customer.

10.3      To the extent permitted by law and under the TPA, the Seller does not accept any responsibility in tort or contract or otherwise against all claims for loss of or damage to the Customer’s Goods that are provided to the Seller for the purpose of performing the Services (whether caused by negligence, wrongful act or default of the Seller, or by any other cause whatsoever).

 

11. Limitation of liability

11.1      All statutory or implied conditions and warranties given by the Seller are excluded to the extent permitted by law, such that the only warranties given by the Seller under the Contract are the conditions and warranties that cannot be legally excluded.

11.2      To the extent permitted by law, the Seller’s liability under the warranties and conditions referred to in clause 11.1 are limited to, at the Seller’s option:

(1)      supplying the Services again; or

(2)      paying the cost of having the Services supplied again.

11.3      Subject to clause 7.6, if all or part of the Services to be provided by the Seller under the Contract fail to conform in a material respect with the specifications in the Quotation, then:

(1)      the Seller is not liable unless the Customer notifies the Seller of the failure within 1 month after the completion of the Services; and

(2)      the liability of the Seller is, in any case, limited as set out in clause 11.2, and the Seller is not liable for any consequential loss or damage.

 

12. Credit facilities

12.1      To enable the Seller to assess any application by the Customer for commercial or personal credit, the Customer authorises the Seller to:

(1)      obtain from a credit reporting agency a credit report containing commercial or personal credit information about the Customer; and

(2)      give to, and as appropriate receive information about the Customer’s credit worthiness, standing, history and capacity from the credit providers that may be named in a credit report issued by a credit reporting agency.

12.2      The Customer acknowledges that the Seller may use the information referred to in clause 12.1 to assess an application for credit by the Customer, assist the Seller in avoiding default on the Customer’s credit obligations and notify, to the extent permitted by law, other credit providers or credit reporting agencies of a default by the Customer.

12.3      The Seller may, in its absolute discretion, without giving any reason and without giving notice to the Customer, terminate any credit facility with the Customer.

12.4      Upon termination of any credit facility, all monies owing by the Customer to the Seller will become immediately payable by the Customer to the Seller without the necessity for any demand for payment of those monies being made by the Seller to the Customer.

 

13. Miscellaneous

13.1      (Governing law and jurisdiction) The law of Western Australia governs the Contract. The parties submit to the non-exclusive jurisdiction of the courts of Western Australia and of the Commonwealth of Australia.

13.2      (Further assurance) Each party must promptly at its own cost do all things (including executing and if necessary delivering all documents) necessary or desirable to give full effect to the Contract.

13.3      (Entire understanding) The Contract:

(1)        is the entire agreement and understanding between the parties on everything connected with the subject matter of the Contract; and

(2)        supersedes any prior contract or understanding on anything connected with that subject matter.

13.4      (Variation) An amendment or variation to the Contract is not effective unless it is in writing and signed by the parties.

13.5      (Waiver) No failure by the Seller to enforce any right or obligation under the Contract is a waiver of that right or obligation, and no waiver of any breach of the Terms and Conditions is a waiver of any other or subsequent breach.

13.6      (Severability) If any provision of the Contract is unenforceable, illegal or void or makes the Terms and Conditions or any part of it unenforceable, illegal or void, then that provision is severed and the rest of the Terms and Conditions remains in force.

13.7      (No reliance on representations) The Customer acknowledges that no representations, either in words or by conduct, in connection with or in the course of negotiations leading to the purchase of the Services have been made by the Seller other than the representations expressly contained in the Contract.

 

14. Definitions and interpretation

14.1      Definitions

In the Contract:

(1)      Authorisation means the Customer’s verbal or written acceptance of the Quotation;

(2)      Contract has the meaning given to it in clause 1.3 of the Terms and Conditions;

(3)      Customer means the person, firm, company or other entity named as such in the Quotation to whom the Services are provided;

(4)      Customer’s Goods means any goods of the Customer provided to the Seller by the Customer for the purpose of the Seller providing the Services;

(5)      GST means GST as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended or any replacement or other relevant legislation and regulations;

(6)      Products means the timber packing crates or similar goods manufactured by the Seller in the course of providing the Services;

(7)      Quotation means the quote provided by the Seller to the Customer offering to provide the  Services;

(8)      Seller means Aussie Crates WA Pty Ltd ABN 71 111 146 626;

(9)      Services means the manufacture of timber packing crates or similar goods to accommodate the Customer’s Goods, the delivery of these timer packing crates or similar goods to the address specified in the Authorisation or such other address as notified to the Seller by the Customer and/or such other services as agreed between the Seller and the Customer including, without limitation, the packing of the Customer’s Goods into the timber packing crates or similar goods;

(10)    Terms and Conditions means this document; and

(11)      TPA means the Trade Practices Act 1974 (Cth).