|
These Terms of Trade shall apply to and
form part of any contract for supply of goods and/or services
entered into with BOATIE AFLOAT (hereinafter referred to as
BOATIE AFLOAT) including any contract arising from oral
acceptance of repeat or further orders for goods and/or
services the same or similar to the goods and/or services to
which this order applies and shall terminate, cancel and
supersede any previous written or oral agreements and
understandings (if any) entered into between BOATIE AFLOAT and
the customer.
1. OFFER AND ACCEPTANCE
2. PURCHASE ORDERS
3. CANCELLATION OF
ORDERS
4. DELIVERY
5. DELIVERIES TO
THIRD PARTIES
6. CLAIMS
7. RISK
8. PROPERTY
9. WARRANTIES
AND CLAIMS FOR DAMAGES
10. GST
11. PAYMENT
12.
ACTIONS OF BANKRUPTCY ETC. BY CUSTOMER
13. LEGAL CONSTRUCTION
1.
OFFER AND ACCEPTANCE
A quotation is not an offer. An order placed pursuant to a
quotation is not binding on Boatie Afloat unless and until
formally accepted in writing by Boatie Afloat.
2. PURCHASE ORDERS
When ordering goods an official order is to be submitted
showing order number, Australian Business Number and full
description of goods to ensure the order is correctly filled.
When requesting services, an official order form is to be
submitted showing order number, ABN, and full description of
the services to ensure the order is correctly filled. The
prices, description and quantities given in the quotation will
be subject to revision if any deviation is shown on the
customer order.
3. CANCELLATION OF
ORDERS
Orders cannot be cancelled without Boatie Afloat written
consent and then only under terms that will indemnity Boatie
Afloat against any loss.
4. DELIVERY
(a) Unless otherwise agreed in writing, the method of carriage
of goods or performance of services (as the case may be) shall
be at the discretion of Boatie Afloat.
(b) Any time or date nominated by Boatie Afloat for delivery
of goods or performance of services is an estimate only.
(c) At Boatie Afloat option, it may at any time by notice in
writing to the customer extend the period for delivery or
cancel the order and Boatie Afloat shall not be liable for any
cost, loss (including consequential loss and loss of profit),
damage or expense incurred or suffered as a result of or in
connection with such extension or cancellation.
(d) Should Boatie Afloat be prevented from delivering part of
the goods by reason of the causes stated in subclause (c)
above, Boatie Afloat shall deliver and the customer shall take
such part of the said goods as Boatie Afloat shall be able to
deliver at the time estimated for delivery. The customer shall
pay for the specific items delivered the same proportion of
the price as the items delivered bears to the whole of the
goods agreed to be sold.
5. DELIVERIES TO
THIRD PARTIES
In the event that the goods supplied under the contract are at
the direction of the customer delivered to a third party or
parties, the customer shall procure agreement by the third
party to be bound by the terms of this contract as though such
third party were a party thereto and the customer indemnifies
Boatie Afloat against any loss or damage suffered by Boatie
Afloat by reason of the customer's failure to procure such
third party to perform or to agree to be bound by the terms of
this contract.
6. CLAIMS
(a) In the case of a supply of goods:
(i) The customer shall inspect the goods immediately upon
delivery and forthwith advise Boatie Afloat of any damage to
the goods or other matter or thing whereby it is alleged that
the goods are not in conformity with the contract relating to
their supply. The customer shall within seven days of delivery
and before the goods are used, processed or sold, or otherwise
dealt with by the customer give written notice to Boatie
Afloat of the allegations and details in respect thereof. The
customer hereby waives any claims of which it has not given
notice within that time. Any goods referred to in a notice
given pursuant to this clause shall be left in the state and
condition in which they were delivered, until such time as
Boatie Afloat or its duly authorised agent has inspected the
goods, such inspection Boatie Afloat undertakes to carry out
within a reasonable time after service of such a notice. If
the goods are not left in the state and condition in which
they were delivered the customer shall be deemed to have
accepted the goods and shall pay the purchase money therefore.
(ii) If Boatie Afloat delivers an incorrect quantity of goods
the customer shall only be entitled to reject the excess over
the quantity ordered.
(b) In the case of a supply of services, the customer shall no
later than seven days after completion of performance of the
services give notice to Boatie Afloat of any defect in the
services or other matter or thing whereby it is alleged that
the services are not in conformity with the contract relating
to their supply. The customer hereby waives any claims of
which it has not given notice within that time.
7. RISK
The risk or loss of damage to goods shall be borne by the
customer on and from departure of the goods from the works or
store of Boatie Afloat, as the case may be. The customer
shall, at his expense, insure the goods against loss or damage
for their full replacement value and keep them so insured
until the goods are paid for in full. The insurance policy
shall be in the name of the customer as bailee and shall note
the interest of Boatie Afloat as owner of the goods.
8. PROPERTY
Property of the goods shall not pass to the customer until all
amounts owing to Boatie Afloat by the customer under the order
relating to those goods are paid in full. Until that time:
(a) the relationship between the parties shall be fiduciary
and the customer shall hold the goods solely as bailee of
Boatie Afloat:
(b) the customer shall store the goods separately from other
goods and in a manner which clearly identifies them as the
property of Boatie Afloat and shall keep separate stock
records for all such goods. However, the customer may:
(i) convert the goods or incorporate the goods into a new
product or new products (the 'new products') provided,
however, that that if the customer does so then, to the extent
of the amount remaining unpaid on the goods so converted or
incorporated, the customer shall hold his interest in the new
products on trust for Boatie Afloat; and
(ii) sell the goods or the new products in the ordinary course
of the customer's business provided, however, that the
customer does not hold himself out as agent of Boatie Afloat
and further provided that the customer holds separately and on
trust for Boatie Afloat and does not pay into an overdrawn
bank account such part of the proceeds of sale of goods or new
products as equals the amount remaining unpaid on the goods so
sold or on the goods converted or incorporated into the new
products, as the case may be. The customer shall forthwith
account to Boatie Afloat for such part of the proceeds;
(c) Boatie Afloat may forthwith cancel the customer's right
under subclause (b) above and may enter upon premises at which
its goods or the new products are stored without liability for
trespass or any resulting damage and retake possession of the
goods or take possession of the new products if:
(i) being a corporation the customer commences to be wound up
or is placed under official management or a receiver or
receiver and manager is appointed over its undertaking or
property, or any part thereof;
(ii) being a natural person the customer becomes insolvent or
bankrupt or commits an act of bankruptcy;
(iii) the customer enters into some arrangement or assignment
for the benefit of creditors;
(iv) the customer parts with possession of the goods other
than in the ordinary course of business; or
(v) in the reasonable opinion of Boatie Afloat, the customer
breaches any of these terms of trade.
In the event that Boatie Afloat retakes possession of the
goods or takes possession of the new products it may sell such
goods or new products. In the case of new products, Boatie
Afloat undertakes to pay the balance of proceeds of sale,
after deducting the price of the goods incorporated in the new
products, to the customer.
(d) Notwithstanding the provision of this clause 8, Boatie
Afloat shall be entitled to maintain an action against the
customer for the purchase price.
(e) No provision of this clause 8 is intended to, nor shall it
constitute a charge in respect of goods supplied under this
invoice, or in respect of new products, or in respect of any
moneys paid to the customer by any purchaser of goods or new
products from the customer. If any provision of this clause 8
creates a charge over any goods supplied, or new products, or
moneys paid to the customer by any purchaser from the buyer,
then that provision shall be severed from these Terms of Trade
and the remainder of the provisions shall be read and
construed as if that severed provision was not part of these
Terms of Trade.
9.
WARRANTIES AND CLAIMS FOR DAMAGES
(a) With the exception of the conditions, warranties, rights
and remedies referred to in subclause (b) below all conditions
and warranties (and rights and remedies relating to the breach
thereof) whatsoever which would, but for this subclause, have
been implied into any contract for sale of goods or services
between the customer and Boatie Afloat are negatived and
excluded from any such contract.
(b) Certain legislation (including the Trade Practices Act
1974 and various legislation of the States and Territories of
Australia) has the effect of implying certain conditions and
warranties into and of granting certain rights and remedies in
respect of, contracts with consumers which may not be
excluded, restricted or modified. Nothing contained in these
conditions shall exclude, restrict or modify any such
conditions, warranties, rights or remedies but the liability
of Boatie Afloat for breach of any of such conditions or
warranties shall, where legally permissible, be limited, at
the option of Boatie Afloat, to:
(i) replacement or repair of the relevant goods or payment of
the cost thereof; or
(ii) supply of equivalent goods or payment of the cost of
acquiring such goods
in the case of a supply of goods. In the case of supply of
services such liability of Boatie Afloat shall, where legally
permissible, be limited, at the option of Boatie Afloat, to:
(i) the supplying of the services again; or
(ii) the cost of having the services supplied again.
(c) Boatie Afloat shall be under no liability to the customer
for any loss or damage to persons or property or for death or
injury caused by any act or omission (including negligent acts
or omissions) of Boatie Afloat, its servants or agents.
(d) The customer acknowledges and agrees that in entering this
agreement the customer has in no way relied upon any oral or
written warranty or representation except as may be expressed
in these Terms of Trade.
(e) The customer warrants to Boatie Afloat that the goods or
services (as the case may be) are not of a kind ordinarily
acquired for personal, domestic or household use or
consumption and that they are not of a kind commonly bought or
ordinarily purchased for private use or consumption.
(f) The customer has the responsibility for ensuring that the
goods are not used for any purpose for which they are not
suitable.
10. GST
(a) All prices quoted by Boatie Afloat, unless otherwise
stated, DO NOT include goods and services tax ("GST") nor any
other government taxes or levies.
(b) In any event, the customer is liable to pay Boatie Afloat
any GST, excise, sales tax or any other taxes or charges which
may be established or levied by any government authority upon
the goods or services or any part thereof, or upon the use
supply, sale or delivery of the goods or services. Any amount
recoverable by Boatie Afloat from the customer under this
clause is payable by the customer upon demand by Boatie
Afloat, provided always that in respect of any GST, Boatie
Afloat will issue a tax invoice (within the meaning of the A
New Tax System (Goods and Services Tax) Act 1999 (Cth)) to the
customer prior to the payment becoming due. If it is
determined on reasonable grounds that the amount of GST paid
or payable by Boatie Afloat to the Commissioner of Taxation on
any supply made under this Contract differs for any reason
from the amount of GST recovered or recoverable from the
customer, that latter amount will be adjusted accordingly.
11. PAYMENT
(a) Payment of the price and any other moneys payable by the
customer pursuant to this contract shall (unless the prior
written consent of Boatie Afloat is given to the contrary) be
made within 30 days of the end of the month in which the goods
are delivered or the services are rendered. However, Boatie
Afloat reserves the right to require full payment in cash
prior to delivery of goods or performance of services should
it consider the customer's credit worthiness to be
unsatisfactory.
(b) Without prejudice to the other rights and remedies of
Boatie Afloat, should the customer fail to pay moneys when due
Boatie Afloat may suspend or cancel further deliveries,
services and orders (in part or whole) and may charge interest
on overdue accounts at the rate of 1% above the then current
overdraft lending charged by ANZ Banking Corporation, or such
other rate as may be notified to the customer from time to
time.
(c) A customer is not entitled to withhold any payment because
of claims in respect of faults or otherwise or any claimed
right to set off sums owing or which may become owing by
Boatie Afloat or any related corporation or for any other
reason whatsoever.
12.
ACTIONS OF BANKRUPTCY ETC. BY CUSTOMER
If the customer commits an act of bankruptcy, enters into
any agreement or scheme of arrangement with creditors under
any law relating to bankruptcy or insolvency, has a receiver
or official manager appointed, calls a meeting for the purpose
of going into or goes into liquidation or has a winding up
petition presented against it, Boatie Afloat may at its option
require payment in cash before delivery notwithstanding the
terms of payment specified, withhold further deliveries or
cancel all orders outstanding and any action shall be without
prejudice to its legal rights.
13. LEGAL CONSTRUCTION
(a) These Standard Terms of Trade shall override all others
inconsistent therewith, notwithstanding that they are printed
on or included in the customer's order or other documents.
(b) These Standard Terms of Trade shall be governed by and
construed in accordance with the laws of New South Wales and
the parties submit to the jurisdiction of the courts of New
South Wales and all courts of appeal therefrom.
|
