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TERMS
AND CONDITIONS OF TRADE
1.
Definitions
In these Terms and Conditions of Trade:
"Agreement" means any agreement or contract
entered into for the provision of goods or services by the Seller
to the Customer;
"Customer" means a person, firm or
corporation, jointly and severally if there is more than one,
acquiring goods or services from the Seller;
"goods" means goods supplied by
the Seller to the Customer;
"GST" means the Goods and
Services tax as defined in A New Tax System (Goods and Services
Tax) Act 1999 as amended;
"Seller" means E.T. Performance
Products Pty Ltd ACN 006 497 874;
"services" means services supplied
by the Seller to the Customer; and
"Terms" means these Terms and Conditions of
Sale;
2.
Basis of Agreement
2.1
Unless otherwise agreed by the Seller in writing, the Terms apply
exclusively to every Agreement and cannot be varied or supplanted
by any other condition, including the Customer’s terms and
conditions of purchase (if any).
2.2
Any written quotation provided by the Seller to the Customer
concerning the proposed supply of goods or services is valid for 30
days and is an invitation to treat only.
2.3
The Terms may include additional terms in the Seller's quotation,
which are not inconsistent with the Terms.
2.4
The Agreement is accepted when by the Seller confirms acceptance of
an offer from the Customer in writing or electronic means or
provides the Customer with the goods or services
ordered.
2.5
The Seller in its absolute discretion may refuse to accept any
offer.
3.
Pricing
3.1
Prices quoted for the supply of goods and services exclude GST and
any other taxes or duties imposed on or in relation to the goods
and services. In addition to payment of the price of goods
and services, the Customer must pay any GST and any other taxes or
duties imposed in relation to the goods and services.
3.2
If the Customer requests any variation to an Agreement, the Seller
may increase the price to account for the variation.
3.3
Where there is any change in the costs incurred by the Seller in
relation to the goods or services, the Seller may vary its price
for the goods or services in order to take account of any such
change, by notifying the Customer.
4.
Payment
4.1
Subject to clause 4.2, payment for the goods or services must be
made within 30 days from the date of invoice.
4.2
The Seller reserves the right to require payment in full on or
before delivery of the goods or completion of the
services.
4.3
Payment by cheque is not deemed made until the proceeds of any
cheque have cleared.
5.
Payment Default
5.1
If the Customer defaults in payment by the due date of any amount
payable to the Seller, then all money which would become payable by
the Customer to the Seller at a later date on any account, becomes
immediately due and payable without the requirement of any notice
to the Customer, and the Seller may, without prejudice to any other
remedy available to it:
(a) charge the Customer interest on
any sum due at the prevailing rate pursuant to the Penalty
Interest Rates Act 1983 (Vic) plus 4 per cent for the period
from the due date until the date of payment in full;
(b) charge the Customer for, and the
Customer must indemnify the Seller from, all costs and expenses
(including without limitation all legal costs and expenses)
incurred by it resulting from the default or in taking action to
enforce compliance with the Terms or to recover any
goods;
(c) cease or suspend for such period
as the Seller thinks fit, supply of any further goods or services
to the Customer;
(d) by notice in writing to the
Customer, terminate any contract with the Customer so far as
unperformed by the Seller;
without effect on the accrued rights of the Seller under any
contract.
5.2
Clauses 5.1(c) and (d) may also be relied upon, at the option of
the Seller:
(a) where the Customer is an
individual and becomes bankrupt or enters into any scheme of
arrangement or any assignment or composition with or for the
benefit of creditors or any class of creditors generally;
or
(b) where the Customer is a
corporation and, it enters into any scheme of arrangement or any
assignment or composition with or for the benefit of its creditors
or any class of its creditors generally, or has a liquidator,
provisional liquidator, administrator, receiver or receiver and
manager appointed, or any action is taken for, or with the view to,
the liquidation (including provisional liquidation), winding up or
dissolution without winding up of the Customer.
6.
Passing of Property
6.1
Until full payment in cleared funds is received by the Seller for
all goods and services supplied by it to the Customer, as well as
all other amounts owing to the Seller by the Customer:
(a) title and property in all goods
remain vested in the Seller and do not pass to the
Customer;
(b) the Customer must hold the goods
as fiduciary bailee and agent for the Seller;
(c) the Customer must keep the goods
separate from its goods and maintain the labelling and packaging of
the Seller;
(d) the Customer is required to hold
the proceeds of any sale of the goods on trust for the Seller in a
separate account, however, failure to do so will not affect the
Customer's obligation to deal with the proceeds as trustee;
and
(e) the Seller may without notice,
enter any premises where it suspects the goods may be and remove
them, notwithstanding that they may have been attached to other
goods not the property of the Seller, and for this purpose the
Customer irrevocably licences the Seller to enter such premises and
also indemnifies the Seller from and against all costs, claims,
demands or actions by any party arising from such
action.
7.
Risk and
Insurance
7.1
The risk in the goods and all insurance responsibility for theft,
damage or otherwise in respect of the goods will pass to the
Customer immediately on the goods being despatched from the
Seller’s premises.
7.2
The Customer assumes all risk and liability for loss, damage or
injury to persons or to property of the Customer, or third parties
arising out of the use or possession of any of the goods sold by
the Seller, whether such goods are used singularly, or in
combination with other substances or processes.
8.
Selection
of goods and services
8.1
The Customer agrees that:
(a)
it has not relied on any service involving skill and judgement, or
on any advice, recommendation, information or assistance provided
by the Seller in relation to the goods or services or their use,
fitness for purpose or application;
(b)
it has the sole responsibility of satisfying itself that the goods
or services are suitable for the use of the Customer or any
contemplated use by the Customer, whether or not such use is known
by the Seller and meet with all relevant applicable standards and
regulatory bodies before use or on-sale;
(c)
Any description of the goods and services provided in a quotation
or invoice is given by way of identification only and the use of
such description does not constitute a contract of sale by
description.
9.
Delivery
9.1
The Customer is responsible for all costs associated with delivery,
including freight, insurance and other charges arising from the
point of dispatch of the goods to the Customer to the point of
delivery.
9.2
Any period or date for delivery of goods or provision of services
stated by the Seller is intended as an estimate only and is not a
contractual commitment. The Seller will use its reasonable
endeavours to meet any estimated dates for provision of the goods
or services.
10.
Liability
and Indemnity
10.1
Except as specifically set out herein, any term, condition or
warranty in respect of the quality, merchantability, fitness for
purpose, condition, description, assembly, manufacture, design or
performance of the goods or services, whether implied by statute,
common law, trade usage, custom or otherwise, is hereby expressly
excluded.
10.2
Replacement of the goods, the cost of replacement of goods or
resupply of services is the absolute limit of the Seller's
liability howsoever arising under or in connection with the sale,
use, storage or any other dealings with the goods or services by
the Customer or any third party.
10.3
The Seller is not liable for any indirect or consequential losses
or expenses suffered by the Customer or any third party, howsoever
caused, including but not limited to loss of turnover, profits,
business or goodwill or any liability to any other
party.
10.4
The Seller will not be liable for any loss or damage suffered by
the Customer where the Seller has failed to deliver goods or
services or fails to meet any delivery date or cancels or suspends
the supply of goods or services.
10.5
Nothing in the Terms is to be interpreted as excluding, restricting
or modifying or having the effect of excluding, restricting or
modifying the application of any State or Federal legislation
applicable to the sale of goods or supply of services which cannot
be excluded, restricted or modified.
11.
Cancellation
11.1
If, through circumstances beyond the control of the Seller, the
Seller is unable to effect delivery or provision of goods or
services, then the Seller may cancel the Customer's order (even if
it has already been accepted) by notice in writing to the Customer,
without prejudice to the Seller’s entitlement to payment of any
accrued transport or carrier charges.
11.2
No purported cancellation or suspension of an order or any part of
it by the Customer is binding on the Seller after that order has
been accepted.
12.
Miscellaneous
12.1
The laws of Victoria, Australia from time to time governs the Terms
and the parties agree to the non-exclusive jurisdiction of the
courts of Victoria, the Federal Court of Australia, and of courts
entitled to hear appeals from those Courts.
12.2
Failure by the Seller to enforce any of these Terms shall not be
construed as a waiver of any of the Seller’s rights.
12.3
If any of the Terms are unenforceable it shall be read down so as
to be enforceable or, if it cannot be so read down, the condition
shall be severed from these Terms without affecting the
enforceability of the remaining conditions.
12.4 A
notice must be in writing and handed personally or sent by
facsimile or prepaid mail to the last known address of the
addressee. Notices sent by pre-paid post are deemed to be received
upon posting. Notices sent by facsimile are deemed received on the
facsimile machine confirming transmission.
13.
Privacy
13.1
The Seller is bound by the Privacy Act 1988 and takes steps
to ensure that all personal information obtained in connection with
the Customer will be appropriately collected, stored, used,
disclosed and transferred in accordance with the National Privacy
Principles. Such information may be accessed by request to the
Seller in accordance with the Privacy Act.
13.2
The Seller requires that the Customer comply with the National
Privacy Principles in connection with any personal information
supplied to it by the Seller in connection with this
Agreement.
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