Prices in this invoice are, unless otherwise stated, are expressed in Australian dollars, include Goods & Services Tax (GST) (if applicable) and are based on our current prices and/or labour rate.
(2.1) The whole of the invoiced price will be paid on delivery of the goods and services to the premises (“the Premises”) named in the invoice (“the Payment Date”).
(2.2 If you are responsible for any delay in completion of work (completion), completion will be deemed to have taken place on the day upon which we advise you that the goods are available for your collection or delivery and payment will be immediately due by you to us. The goods may be stored by us but in all respects at your risk if you delay in taking delivery.
(2.3) If we are not reasonably satisfied about your ability to pay on delivery, we may require payment in full or in part in our discretion before delivery.
(2.4) You may be asked to pay a $10.00 administration fee on all overdue accounts per account rendered provided it be at frequency of not more than one per month together with an interest charge at the rate of two (2) percent of the invoice amount per month from the date when the invoice became due and payable to date of payment in full.
(2.5) If any account remains unpaid at the end of the second month next following date of supply, installation, delivery and/or repair of the goods or services the account will automatically be referred to our debt collection agency. You acknowledge and agree that you will be responsible for all fees and charges relating thereto on a full indemnity basis.
3. LIABILITY FOR LOADING AND SECURING MERCHANDISE
(3.1) You accept full responsibility for and the liability of any and all acts and/or omissions of any nature whatsoever and howsoever arising including but not limited to the loading and/or securing of goods purchased from us and placed in your vehicle whether by us or otherwise.
(3.2) Where you request that we assist you in loading and or securing the goods purchased by you, you hereby acknowledge and agree that in the event that you suffer loss, damage and/or incur expense in consequence of the loading and/or securing of the goods purchased from us, we shall not be liable to you for the loss, damage and/or expense arising there from.
(3.3) Goods purchased by you from us and loaded and/or secured by you or another on your behalf (“you”) other than us on, in or about your vehicle will be loaded and/or secured by you in a safe and proper manner and you shall observe all applicable Laws, Rules, Regulations and suchlike governing the loading and/or securing of loads to vehicles of the class of your vehicle, and you acknowledge and agree to indemnify and keep us indemnified for any loss or damage suffered by us and/or expense incurred by us as a result of your failure to safely and properly load and/or secure your goods in accordance with your obligations herein.
(4.1) We shall take all reasonable steps to ensure that shipping and delivery of the goods to you is made within the time specified in the order or invoice but we shall not be liable for any failure to ship or deliver on time for any cause whatsoever.
(4.2) If the goods are second hand and they are not in our possession at the time of the rendering of this invoice, completion of the contract the subject of this invoice is subject to us obtaining possession of the goods. This contract between us will be at an end upon us advising you that we cannot obtain possession of the goods, in which case any prepayment shall be refunded.
(5.1) Where the price includes or is for installation or repairs, we will provide the services of sufficiently trained and experienced personnel to supervise the installation and to instruct you in the operation of the goods for such period as determined by us. We make no recommendation as to the location of the goods within your property and will install or supervise the installation in or on the goods requested by you. Where appropriate we will carry out testing of the goods. You agree that the goods will be deemed to have been installed or repairs completed when we have certified that the goods have been installed or repaired and are working to specification.
(5.2) If any payment is in arrears for any goods, spare parts or services or any instalment of goods delivered or repairs effected under this or any other invoice between the parties, we may at our absolute discretion and without giving notice to you, suspend delivery and/or installation until payment is made and if any such payment shall remain unpaid for seven (7) days after written demand sent to you, we may cancel this and any other such contract without prejudice to our right to recover any money then due and payable to it from you or any loss suffered by us as a result of cancellation of the contract.
(6.1) Title to and ownership of the goods shall not pass to you until the date that the purchase price for the goods and/or services provided by us and all sums payable to us have been paid in full including costs and interest.
(6.2) Until the Payment Date, you shall not be entitled to sell, transfer, lease, charge, assign by way of security or otherwise deal in or encumber the Goods supplied by us and the relationship between the us and you in respect of the Goods, including any proceeds of sale or other consideration therefore shall be a fiduciary one.
(6.3) If either you fail to effect payment in full of all sums due hereunder by or prior to the said due date you convene a meeting of your creditors, or a proposal is made for a voluntary arrangement or a proposal for any other composition scheme of arrangement with or assignment for the benefit of your creditors or if you are unable to pay your debts as and when they fall due and payable or a trustee receiver, administrative receiver or similar office is appointed in respect of all or any part of the business or assets belonging to you or if a meeting is convened for the purpose of winding you up (if you are a corporate entity) or for making of an administration order (other than for the purpose of amalgamation or reconstruction) or ceases to or threatens to cease to trade or dies, we (without prejudice to any other legal remedies it may have) shall at any time thereafter be entitled to enter upon any premises owned or occupied by you or if any premises upon which it is reasonably believed that the goods are being stored or kept (without notice to the Purchaser) and remove the goods supplied by us.
(6.4) If in breach of clause 6.1 above, you sell the Goods or any part of them prior to the Payment Date, then any proceeds of sale in respect thereof and all right arising under in respect of the said sale shall be held (in the case of the proceed sale, in a separate account) by you as trustee for us. You hereby agree, immediately on the receipt of a written request from us, to assign to us all rights and claims which you may have against any third party arising from such sale or transfer.
(6.5) We shall be entitled to exercise a right of lien or sale over any of your property in its possession, without prejudice to any other remedies available to the Company.
(6.6) You agree that the invoiced sum together with costs and interest (if any) levied thereon creates a caveatable and equitable interest and charge over any real property in which you have an interest either now or in the future and will create a financial interest and charge over any vehicles in which you have an interest either now or in the future and to secure our invoiced sum and the fees, charges and interest levied, you consent to us lodging a caveat on the title of any real property in which you have an interest and in addition a security interest in any vehicle or vehicles in which you have an interest.
(7.1) Cancellation of orders will not be permitted without our consent first had and in writing.
(7.2) All returns must be authorised and approved by us. You agree to pay for all freight charges on returns. Returns will not otherwise be accepted after seven (7) days from date of supply, installation, delivery and/or repair time being of the essence in this respect. We will only be obliged to credit returns if they are, in our opinion, in a saleable original condition. We reserve the right to charge a restocking fee equal to fifteen percent (15%) of the price of goods for which you acknowledge and agree you will be liable. Products specially purchased, manufactured, machined or cut to size or the buyer’s specifications shall not be returnable at all.
Any description of the goods is given by way of identification only and the use of such description does not constitute a sale by description.
9. STATUTORY WARRANTIES
(9.1) You are advised that legislation including the Competition and Consumer Act 2010 imply warranties and/or conditions or impose obligations on us as a seller which cannot be excluded restricted or modified except to a limited extent. These Terms and Conditions shall be read and construed subject only to the extent of such statutory provisions.
(9.2) To the extent permitted by law and subject only to any express conditions contained herein we shall under no circumstances be liable in any way whatsoever to you for any form of loss, damage or expense sustained or incurred by you or any other party in consequence of or permitting directly or indirectly out of the supply of goods and/ or services by us, and breach by us of any contract incorporating these conditions or the negligence of us.
10. NOTICE OF CLAIM
It shall be a condition precedent to the making of any claim against us whether by action, arbitration or otherwise that written notice of such claim shall have been given to us by you within ninety (90) days of supply, installation, delivery and/or repair. If you fail to give such notice all claims shall be deemed to be waived and absolutely barred and time shall be of the essence in this respect.
11. WARRANTY EXCLUSION
The warranty (if any) does not under any circumstance extend to cover material expended during use of the goods whether due to any fault in the goods or otherwise.
You acknowledge and agree that we have made no representation or promise as to the availability of finance. This contract binds you as the purchaser of the goods and/or services notwithstanding that you may contemplate obtaining finance in some form or other and/or that a finance company may in our absolute discretion later be substituted for you as purchaser of the goods.
If you default in paying or performing any of your obligations under these Terms of Trade or if you shall before then become bankrupt or commit any act of bankruptcy or compound with your creditors have judgement entered against you in any court or go into liquidation whether voluntary or otherwise or have a receiver or manager appointed or give any security over its stock or plant, you agree that we are irrevocably authorised at any time thereafter to enter upon any premises where the goods are situated and to take possession of and remove the goods and to use your name and to act on our behalf in exercising such rights in any proceedings or actions relating to a default by you and you will reimburse us for all costs and expenses incurred by us in connection with such proceedings or actions.
(14.1) Statements or representations of any kind however made regarding performance, measurements, power consumption and such like and whether contained in drawings, catalogues, advertisements, or otherwise are indicative only and shall not be binding upon us or in any way form part of this contract unless expressly stated so in writing from us.
(14.2) These Terms of Trade constitute the entire agreement between us and yourself and replace, supersede and merge all prior discussions, agreements or understanding between us.
(14.3) No variation of these Terms of Trade is binding unless made in writing and signed by the managing director, manager or sales representative of us and you.
15. GOVERNING LAW AND JURISDICTION
This agreement and all claims arising out of or related to this agreement or the subject matter hereof shall be governed by the laws of the State of South Australia and the parties hereby submit to the jurisdiction of the courts of that State.
Failure by us to enforce any of its rights hereunder or acceptance by us of any payments after the specified date shall not constitute a waiver of any of our rights hereunder or a waiver of any continuing or future breach.