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GENERAL TERMS & CONDITIONS OF SALE (4/98)
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To the fullest extent legally possible all contracts made between J.J. Marinecraft Pty Ltd ACN 007 348 307 and/or each of its subsidiaries, divisions, affiliates, related and associated companies and entities and all successors and assigns of the one part the ["Company"] and the Customer of the other part relating to any products and/or services [the "products" and/or the "services"] are subject to the following terms and conditions of sale ["these Terms"] unless otherwise expressly agreed in writing:
1. A. Product Characteristic: a) The customer agrees to check all products for compliance with all relevant applicable standards and regulatory body requirements before use, on-sale or application thereof, b) The Customer agrees to use and/or apply the products in accordance with all applicable standards, regulations and guide-lines, with all manufacturers' recommendations and directions as well as with good trade practice, c) The Customer agrees to immediately notify the Company if any of the products fail to comply with the foregoing and indemnifies the Company as per clause 19 unless it is able to demonstrate that the products failed to comply with the foregoing at the time of delivery, d) The Customer shall be deemed not to have notified the Company unless notice has been given in writing. B. Services: All services will be provided subject to and conditional upon the incorporation into these Terms of the Company's standard Work Authorisation Form terms (if any) as from time to time adopted by the Company.
2. Credit Limit: The provision by the Company of any credit facility or the nomination of any credit limit is an indication only of the Company's intention at the time. The Company may vary or withdraw any credit facility at any time at its discretion and without incurring any liability whatsoever to the Customer or any party claiming through the Customer and without affecting or derogating from any obligation of the Customer.
3. Placement of Orders: a) The Customer agrees that in the event of any dispute arising concerning any order (including any question of identity or authority and/or any dispute relating to any telephone, facsimile or computer generated order) the internal records of the Company shall be conclusive evidence of what was ordered in all respects, b) Each order placed shall be and be deemed to be a representation by the Customer at that time that it is solvent and able to pay all of its debts as and when they fall due. c) Failure to pay the Company in accordance with these Terms shall be and be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation, d) When placing each order the Customer agrees to inform the Company of any material facts which might reasonably affect any commercial decision by the Company to accept the order and/or grant credit in relation thereto. Any failure to do so shall create and be deemed to create an inequality of bargaining position and shall constitute and be deemed to constitute the taking of an unfair advantage of the Company and to be unconscionable, misleading and deceptive.
4. Variation or cancellation of any order must be approved in writing by the Company.
5. Exclusions: a) No contract between the Company and the Customer shall be or shall be deemed to be a sale by sample, b) The Customer shall rely on its own knowledge and expertise in selecting any products for any purpose. Any advice or assistance given for or on behalf of the Company shall be accepted by the Customer at its own risk and shall not be or be deemed to be given as expert or adviser nor to have been relied upon by the Customer.
6. Price: Unless otherwise agreed in writing: a) all sales of products or services are made by the Company at the price prevailing at the time of delivery or performance and the Customer acknowledges that any price quoted by the Company at the time of enquiry or order or in any price list or other form of information shall be deemed to be an estimate only and shall in any event at all times be subject to alteration at the discretion of the Company to reflect changes required, extras, movements in exchange rates, government imposts, CPI increases and increases in the cost of labour and/or raw materials up to the time of delivery;and b) the price for any of the products or services shall not include sales tax or any other government impost applicable to the products all of which are payable by the Customer.
7. Delivery: a) The Company accepts no responsibility whatsoever for delivery but may elect to arrange delivery at its discretion, without any liability and at the Customer's cost and responsibility in all things, b) The Company reserves the right to charge for any delivery, c) The Customer shall be deemed to have accepted delivery and liability upon actual delivery to the Customer's business premises or nominated address for delivery whether attended or not. d) The Customer agrees that a certificate purporting to be signed by an officer of the Company confirming delivery, any signed delivery docket whether signed by any employee of the Customer or any other person with the Customer's ostensible authority and/or any invoice of the Company shall be conclusive evidence of delivery.
8. Frustrated Delivery: a) If for any reason the time necessarily spent by the Company in attempting to effect or in effecting delivery exceeds 30 minutes or requires more than one attempt the Customer agrees to pay all costs and expenses of the Company thereby incurred together with a loading of 10% to cover administration costs, b) When the Company advises the Customer that any product is ready for delivery or pick-up and the Customer fails to take delivery or to pick-up within a reasonable time the products shall be deemed delivered and the Customer accepts all risk and liability therefor and agrees to pay any reasonable storage charges and expenses claimed by the Company in relation thereto.
9. Returns; a) The Company reserves the right to refuse to accept any returns, b) If the Company elects to take back any products it shall be on such terms as the Company is willing to accept and a re-stocking fee of not less than 15% of invoice value shall apply, c) If any of the products or services are faulty or in any way defective the Company may elect to either repair or replace, d) Any of the returned products which are accepted by the Company shall become the property of the Company, e) No cash refund shall be payable by the Company in any event, f) Products made to order or 'one-off' cannot be returned at all.
10. Payments are due without deduction when stipulated by the Company and if not so stipulated by the end of the month following invoice date unless otherwise agreed in writing.
11. Interest is due and payable on overdue accounts at 18% p.a. calculated daily.
12. On-Sale: The Customer agrees that upon the sale by the Customer of any of the products to a third party the Customer shall import into and make part of any such on-sale all of these Terms (as mutatis mutandis apply) and shall indemnify the Company in every respect against any claim by or through any such third party whatsoever.
13. Property A. Products: a) Property in the products shall not pass until payment in full in cleared funds of all monies owed to the Company for the products and of all other monies owed to the Company, b) Immediately upon delivery the Customer accepts liability for the safe custody of the products and agrees to indemnify the Company for any losses sustained by the Company whatsoever, c) The Customer acknowledges and agrees that until property passes: (i) the Customer is in possession of the products for and on behalf of the Company as fiduciary, bailee and agent; (ii) the Customer is only authorised to sell the products in the ordinary course of business (which shall not include sales for less than cost, by an Administrator or on terms); (iii) the Customer shall keep a complete record of all sales of the products; (iv) the Customer shall keep the products identifiably separate from other stock; (v) the Company is authorised to enter the Customer's premises to inspect the products; and (vi) in the event of any sale of part or all of the products the Customer: (aa) shall deposit all proceeds of sale in a separate and identifiable bank account; (bb) shall not mix such proceeds with any other monies; and (cc) shall account to the Company for such proceeds (notwithstanding that the Company may have granted any credit facility and/or time to pay), d) The Company shall be entitled to trace all proceeds of any sale through any account, e) The Customer agrees that a certificate purporting to be signed by an officer of the Company identifying any of the products as "unpaid for" shall be conclusive evidence that they have not been paid for and of the Company's property in and ownership of the products, f) Clause 13 of these Terms is not intended to create a charge over the products and shall be read down to the extent necessary to avoid creating a charge. B, Services: a) The Company shall (in addition to any common law or statutory lien) have a general lien over all property of the customer submitted for the performance of any services until payment in full. b) In the event of non-payment of any account in accordance with these Terms the Customer authorises the Company to sell any property of the Customer in relation to which services have been performed and to apply the proceeds in payment of all costs and expenses of sale and all other monies outstanding and then account for the balance to the Customer.
14. Default: Where there is a failure by the Customer to perform or observe any of these Terms or the Company considers the Customer is in financial difficulties the Company at its election: a) shall have by way of general lien the absolute right to hold all property coming into the Company's possession by or through the Customer as security for the performance of all of the Customer's obligations and in particular the payment of all monies owing at any time and from time to time; b) shall have an absolute right of sale pursuant to the Disposal of Uncollected Goods Act 1961 (Vie.) of all property secured under sub-clause 14 a); c) shall have an immediate right to possession of the products - the Customer irrevocably authorises the Company to enter any premises (forcibly if necessary) in the name of the Customer and take any of the products; d) may retain all monies paid on account of any products or services; e) may cease delivering any of the products or services; and f) may recover from the Customer all losses without prejudice to any other rights and without the Company being liable in any way to any party whatsoever.
15. Recovery Costs: The Customer shall pay to the Company all actual costs and expenses incurred by the Company or by the Company's legal advisers, mercantile agents and any other person acting on the Company's behalf in respect of any action instituted or being considered against the Customer whether for debt, possession of the products or otherwise.
16. Jurisdiction: The Customer agrees that all contracts made with the Company shall be deemed to be made in the State of Victoria and the Customer agrees to submit to the jurisdiction of the appropriate court in Victoria nominated by the Company.
17. Limitation of Liability: a) The Company shall not be liable for any claim, loss or expense howsoever arising which is made after the expiration of seven days from the date of delivery (or at any time after products have been unpacked, displayed or in any way used or applied or services are enjoyed to the benefit of the Customer) at which time there shall be deemed to have been unqualified acceptance, b) The Company shall not be liable in any way whatsoever for any claim, loss or expense (including any contingent, consequential, special and/or punitive damages) whether by reason of any negligence of the Company or otherwise unless relevant provisions of the Trade Practices Act apply in which case any liability of the Company shall not exceed the minimum limit permitted by the relevant provisions of that Act (including Section 68A). c) The Customer acknowledges this express limitation of liability and agrees to limit any claim accordingly, d) Subject to clause 1B and 23 of these Terms no other term, condition, agreement, warranty, representation or understanding whatsoever whether express or implied, in any way extended to or otherwise relating to or binding upon the Company which is inconsistent with these Terms shall apply. e) The Company shall not be liable for delay or failure or inability to provide services or supply or deliver no matter how caused whether directly or indirectly or by any event or matter whatsoever or whether due to the Company's negligence or otherwise nor shall any such delay or failure or inability be or be deemed to be a breach of contract, f) The Customer agrees to make no claim against the Company whatsoever until it has complied with all obligations arising under these Terms and any unremedied breach of any obligation arising under these Terms may be pleaded as a bar to any claim against the Company and/or its servants or agents made by or through the Customer.
18. Other Manufacturers/Service Providers: If any products are manufactured by or any part of the services is provided by another party the Company gives no warranty and accepts no liability or responsibility of any sort. This clause may be pleaded as a bar to any action taken by or through the Customer against the Company and/or its servants or agents.
19. Indemnity: If the Customer or any person makes any claim directly or indirectly against the Company and/or its servants or agents in any way connected with any products sold or services provided subject to these Terms the Customer indemnifies the Company, its servants and agents in every respect against any damage or loss suffered as a consequence thereof.
20. Customer Restructure and/or Change of Position: The Customer shall notify the Company in writing within 7 days of any change in its structure or management including any change of directors or shareholders, in the overall management of the Customer, in any relevant partnership or trustee or of any disposal of part or all of the Customer's business.
21. Credit Information: Privacy Act 1988 etc. a) The Customer irrevocably authorises the Company and its servants and agents to make such enquiries as is deemed necessary to investigate the creditworthiness of the Customer from time to time including (but without limitation) the making of enquiries with persons nominated as trade references, with the bankers of the Customer, with any other credit provider or with a credit reporting agency (in these Terms called "the Information Sources"). The Customer hereby authorises the Information Sources to disclose to the Company such information concerning the Customer as is within their possession, b) The Customer agrees that the information contained in any credit application may be disclosed to any interested person.
22. Waiver: An election by the Company not to exercise any of its rights arising as a result of any breach of these Terms shall not constitute a waiver of any rights of the Company relating to any other or subsequent breach.
23. Notice: The Customer shall be deemed to have immediate notice of any change to these Terms adopted by the Company whether or not actual notice or advice thereof is given.
24. Severability: Any part of these Terms can be severed without affecting any other part.
25. Insurance: The Customer agrees to insure itself and the Company from liability arising in any way whether directly or indirectly under part V,VA or VI of the Trade Practices Act, which insurance shall note the insured interest of both the Customer and the Company and shall fully indemnify the Company in relation to any loss, damage, claim or demand whatsoever or howsoever made against the Company under part V,VA or VI of the Trade Practices Act.
26. Security: a) The Customer agrees on written request to charge in favour of the Company with payment of all monies owed to the Company by the Customer: (i) by way of a fixed charge all its current and later acquired or created books of account, financial records, goodwill, documents of title, real and intellectual property; and (ii) by way of a floating charge the whole of the Customer's other undertaking, property and assets, b) The Customer irrevocably appoints the Credit Manager for the time being of the Company as its Attorney to do all things necessary to create and register each such charge.
27. Whole Agreement: These Terms recite the whole agreement between the parties. No terms and conditions sought to be imposed by the Customer or any other party shall prevail. Subject to clause 1B and 23 these Terms shall apply notwithstanding any other conditions of sale or Work Authorisation Form terms of the Company whether endorsed on any price list or elsewhere.
© Lewis Walker
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