TERMS & CONDITIONS OF SALE
1. Definitions
“Conditions” means these Terms & Conditions of Sale (which are subject to change from time to time without notice to any customer);
“Customer” means a person, firm or corporation (and includes their agents and/or representatives), jointly and severally if there is more than one, acquiring goods from the Supplier;
“goods” means goods supplied by the Supplier to the Customer, being parts for storage systems used in the petroleum and chemical industries, and related goods;
“GST” means the goods and services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;
“PPS Act” means the Personal Property Securities Act 2009 (Cth);
“Supplier” means SHIPMAN KING PTY LTD (ACN 006 667 812) of 109 McEwan Road, West Heidelberg, Victoria 3081;
and “Warranty” means the Supplier’s written warranty provided with the stock and notified by the Supplier.
2. Basis of Contract
2.1 Unless otherwise agreed by the Supplier in writing, these Conditions apply exclusively to every contract for the sale of goods by the Supplier to the Customer and cannot be varied or supplanted by any other conditions (including but not limited to the Customer’s terms and conditions of purchase, if any) without the prior written consent of the Supplier.
2.2 Any written quotation provided by the Supplier to the Customer concerning the proposed supply of goods is valid for 30 days and is an invitation only to the Customer to place an order based upon that quotation and is subject to the Customer offering to enter a contract with the Supplier and accepting these Conditions. The Conditions may include additional terms in the Supplier’s quotation provided that such additional terms are not inconsistent with these Conditions.
2.3 An order will not be accepted until the Supplier communicates acceptance to the Customer in writing or by electronic means or it has provided the goods.
2.4 The Supplier in its absolute discretion may refuse to accept any offer from a Customer.
3. Pricing
3.1 Prices quoted for the supply of goods exclude: (a) GST; and (b) the cost of freight, insurance and other charges arising from the point of dispatch of the goods to the Customer to the point of delivery.
3.2 Unless otherwise agreed between the Supplier and the Customer, in addition to the price for goods, the customer must pay to the Supplier any amounts specified in clauses 6.1(a) and (b).
3.3 Prices quoted for the supply of goods are subject to change without notice.
4. Payment
4.1 Payment for goods supplied by the Supplier is to be made in full upon delivery.
4.2 If credit terms are extended by the Supplier, payment for goods must be made within 30 days of the end of month in which the Supplier’s invoice is raised.
4.3 If requested by the Supplier, the Customer must present the Supplier with a letter of credit at the time of order of the goods for the value of goods supplied.
4.4 Credit terms may be revoked or amended at the sole discretion of the Supplier immediately upon giving written notice to the Customer.
4.5 Payment by the Customer will be subject to the Supplier providing a tax invoice for GST purposes.
5. Payment Default
5.1 If the Customer defaults in payment by the due date of any amount payable to the Supplier, then all money which would become payable by the Customer to the Supplier at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and the Supplier 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, calculated daily, 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 Supplier from, all expenses and costs (including without limitation all legal costs on an indemnity basis, collection agency costs and
expenses) incurred by it resulting from the default or in taking whatever action it deems appropriate to enforce compliance with the Conditions or to recover any goods;
(c) cease or suspend for such period as the Supplier thinks fit, supply of any further goods to the Customer; and
(d) by notice in writing to the Customer, terminate any contract with the Customer so far as unperformed by the Supplier; without effect on the accrued rights of the Supplier under any contract.
5.2 Clauses 4.1(c) and (d) may also be relied upon, at the option of the Supplier:
(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 his or her creditors or any class of his or her 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 Supplier for all goods supplied by it to the Customer, as well as all other amounts owing to the Supplier by the Customer:
(a) title and property in all goods remain vested in the Supplier and do not pass to the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for the Supplier;
(c) the Customer must keep the goods separate from its goods and maintain the labelling and packaging of the Supplier;
(d) the Customer is required to hold the proceeds of any sale of the goods to a third party (“Purchaser”) on trust for the Supplier and in the event that the Purchaser uses the goods in some manufacturing or construction process of its own or some other third party, the Purchaser shall hold such part of the proceeds of such manufacturing or construction process as relates to the goods in trust for the Supplier; and (e) the Supplier may without notice, enter any premises where it suspects the goods may be and remove them, not withstanding that the goods may have been attached to other property not the property of the Supplier, and for this purpose the Customer irrevocably licences the Supplier to enter such premises and also indemnifies the Supplier from and against all costs, claims, demands or actions by any party arising from such action.
6.2 The Customer acknowledges that:
(a) these Conditions constitute a security agreement for the purposes of the PPS Act;
(b) the Customer grants a security interest to the Supplier in the goods supplied to the Customer pursuant to the security agreement for the purposes of the PPS Act;
(c) the Supplier has or will register its security interest in the goods in accordance with the PPS Act;
(d) at the Supplier’s request, the Customer must, at its cost, do anything considered by the Supplier in its absolute discretion to be necessary for the purposes of ensuring that the Supplier’s security interest is enforceable, perfected and otherwise effective and able to be registered so that the security interest has the priority required by the Supplier;
(e) the Supplier in not required to give any notice under the PPS Act (including a notice of a verification statement) unless the notice is required by the PPS Act and cannot be excluded.
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 upon delivery of the goods to the premises nominated by the Customer or immediately upon the goods being collected from the Supplier’s premises.
7.2 The goods are sold to the Customer on the basis that the Customer has obtained all necessary licenses or permits under all relevant laws and regulations in relation to the goods.
7.3 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 installation, use or possession of any of the goods sold by the Supplier, whether such goods are used singularly, or in combination with other products or any process.
8. Acknowledgment
8.1 The Customer acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by the Supplier in relation to the goods or their use 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 Supplier; and
(c) any description of the goods provided on the Supplier’s website, in any brochure or catalogue or other marketing brochure, or 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.
8.2 The Customer must not make any claim or demand for any matter referred to in clause 8.1
9. Performance of contract
9.1 Any period or date for delivery of goods or provision of services stated by the Supplier is intended as an estimate only and is not a contractual commitment. The Supplier will use its best reasonable endeavours to meet any estimated dates for delivery of the goods or completion of the services, but will, in no circumstances whatsoever, be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
9.2 A completed driver’s delivery docket whether signed by the driver or by the Customer or its employee or agent will be proof of delivery of goods invoiced.
9.3 Where goods are collected by the Customer from the Supplier’s premises, the Supplier’s delivery docket signed by the Customer or its employee or agent will be proof of delivery of goods invoiced.
10. Cancellation
10.1 If, through circumstances beyond the control of the Supplier, the Supplier is unable to effect delivery of or provide the goods, then the Supplier may cancel the Customer’s order (even if it has already been accepted) by notice in writing to the Customer, without liability.
10.2 No purported cancellation or suspension of an order or any part thereof by the Customer is binding on the Supplier after that order has been accepted by the Supplier.
11. Guarantee and Indemnity
If the Customer is a corporation then the corporation will procure the directors of the Customer at applying for credit with the Supplier, to agree and to undertake to act as guarantors (“guarantors”) to ensure the performance of the Customer under this agreement by execution of the Supplier’s standard Guarantee and Indemnity.
12. Charge
The Customer, as security for its obligations and liabilities arising under and or in connection with these Conditions, charges in favour of the Supplier, all of its right, title and interest in its real and personal property, and the Customer:
12.1 acknowledges that the charge referred to in this clause contains a covenant securing the Customer’s obligations to the Supplier under these Conditions;
12.2 undertakes at the request of the Supplier to promptly execute all further deeds, documents or assurances in registrable form incorporating the covenants and provisions referred to in this clause;
12.3 acknowledges that the Supplier is entitled, in its absolute discretion, to release or discharge any of the property secured by this clause, without discharging or releasing the Customer from its obligations and liabilities to the Supplier; and
12.4 authorises and consents to the Supplier taking all actions necessary to give full effect to this clause in the event that the Customer is in default of its obligations, including without limitation, registering a caveat over any of the Customer’s real property and/or registering a security interest on the PPS register over all of the Customer’s present and after acquired personal property.
13. Delivery
13.1 The Supplier will, at its discretion, arrange for delivery of goods to the Customer and designate the route and means of transportation for the delivery of the goods. In the event that the Customer requires a more expensive rate or means of transport the Customer will reimburse the Supplier for the extra costs involved.
13.2 The Customer authorises the Supplier to subcontract delivery of the goods in its absolute discretion.
13.3 The Customer will inform the Supplier of all necessary details so that the Supplier can effect the delivery of the goods and the Customer must provide reasonable and proper access to the location specified for delivery.
13.4 The Customer indemnifies the Supplier against any loss or damage suffered by the Supplier, its subcontractors or employees as a result of delivery, except where caused by the negligence of the Supplier.
13.5 If goods are to be collected by the Customer from the Supplier, the Customer must arrange for collection of the goods within 7 days of notification that the goods are ready. If the goods have not been collected within 7 days of notification, the Customer shall be deemed to have taken delivery of the goods from such date. The Customer shall be liable for storage charges payable monthly on demand.
14. Returns
14.1 The Customer must advise the Supplier within 7 days of receipt of a delivery:
(a) of the non arrival of any goods;
(b) if there is any damage to the goods;
(c) if the wrong goods have been received;
(d) if the quantity of the goods is incorrect; or
(e) if the goods do not meet specifications.
14.2 If the Customer fails to give notice in accordance with clause 14.1, then the goods are deemed to have been accepted by the Customer and the Customer must pay for the goods in accordance with these Terms.
15. Liability
15.1 Except as specifically set out herein, or contained in any Warranty, 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.
15.2 Replacement or repair of the goods or resupply of the services is the absolute limit of the Supplier’s liability howsoever arising under or in connection with the sale, use of, storage or any other dealings with the goods or service by the Customer or any third party.
15.3 The Supplier 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 perishables, loss of turnover, profits, business or goodwill or any liability to any other party.
15.4 The Supplier will not be liable for any loss or damage suffered by the Customer where the Supplier has failed to deliver goods or services or fails to meet any delivery date or cancels or suspends the supply of goods or services.
15.5 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.
16. No Set Off
The Customer is not entitled to set off against the price payable under these Conditions any amount which is owed or the Customer believes is owed to it by the Supplier.
17. Privacy
17.1 The Supplier is bound by the Privacy Act 1988. All personal information obtained in connection with the Customer will be appropriately collected, stored, used, disclosed, transferred and destroyed in accordance with the Australian Privacy Principles (“NPP”).
17.2 The Supplier requires that the Customer comply with the NPP’s in connection with any personal information supplied to it by the Supplier in connection with this Agreement.
18. Jurisdiction
The law of Victoria from time to time governs the Conditions and the parties agree to the non-exclusive jurisdiction of the courts of Victoria and of courts entitled to hear appeals from
those Courts.