TERMS AND CONDITIONS OF SALE
1. APPLICATION FOR CREDIT
1.1 If an application for credit by me/us (“the Customer”) is accepted by Aflo Equipment Pty Ltd (ACN 165 511 320) (“the Seller”) or any associated entities of the Seller, the Customer jointly and severally where applicable agrees to be bound by all the terms and conditions in respect of all orders for goods made by the Customer hereafter.
1.2 If the Seller trades with the Customer on credit, then the credit application is deemed to have been accepted by the Seller.
1.3 The Seller reserves the right to refuse any application for credit.
1.4 The Seller reserves the right to vary any approved credit limit in its absolute discretion without the necessity of providing any reason for its decision to the Customer.
1.5 The amount of credit extended at any point is computed on the basis of all unpaid invoices (whether due or not yet due including amounts in dispute) less all credit notes issued. The Seller reserves the right to request early payment of invoices where the credit limit would be exceeded by the shipment and invoice of an order.
1.6 These Terms and Conditions of Sale and any contract including them shall be governed by the law of the State or Territory in which the goods are sold and the Seller and the Customer submit to the jurisdiction of the Courts of that State or Territory.
2.1 The price of all goods supplied whether under credit or not is exclusive of the GST.
2.2 A minimum order value of $500.00 exclusive of GST will apply to each order otherwise the Customer will incur a $25.00 handing fee and the cost of freight unless agreed otherwise in writing by the Seller.
2.3 In addition to the price, the Customer shall pay the GST charged on any taxable supply, subject to receipt of a Tax Invoice complying with the GST legislation.
2.4 The Price List shall not be construed or operate as an offer or obligation to sell but shall be an invitation to treat only and the Seller reserves the right to accept or reject in its absolute discretion any orders which may be received by it.
2.5 The prices shown in the Price List are subject to alteration without notice.
2.6 Where goods are imported to Australia, the Seller reserves the right to vary the price arising from any fluctuation in exchange rates between the date of the Customer’s order and the date of payment by the Seller.
3.1 Delivery charges on orders required by overnight transport air freight or other special delivery shall be for the account of the Customer, save and except for orders with a net value of not less than $500.00 exclusive of GST delivered within Australia by the Seller’s appointed carrier.
3.2 Delivery charges shall apply to back orders unless agreed to in writing and signed by the Seller.
3.3 Any delivery time made known to the Customer is an estimate only and the Seller shall not be liable for late delivery or non-delivery and under no circumstances whatsoever shall the Seller be liable for any loss, damage or delay occasioned to the Customer arising from late or non-delivery or late installation of the goods.
3.4 In the event that the Customer is unable or unwilling to accept delivery of the goods as agreed, then the Customer shall be liable for all storage costs, charges, expenses and additional delivery charges, with such a further amount to be paid on delivery by the Customer.
3.5 The Customer shall be deemed to have accepted delivery and liability for the goods sold immediately upon delivered to any delivery agent, nominated party or to the Customer’s business premises.
3.6 The Customer agrees that a certificate purporting to be signed by an officer of the Supplier confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket whether signed by any employee or agent of the Customer or any other person at the Customer’s business premises.
4. TIME OF THE ESSENCE
In respect of the Customer’s obligation to make payment for goods sold by the Seller to the Customer, time shall be of the essence for the entire contract.
5. PAYMENT TERMS
5.1 Payment for the goods sold by the Seller to the Customer shall be tendered no later than the expiration of 30 days from the end of the month sold.
5.2 All payment terms are based on the date of the invoice and not the date goods are received.
5.3 Any variation of the Payment Terms shall be in writing and signed on behalf of the Seller by a partner of the Seller.
5.4 All credit card payments will incur a 2.4% surcharge which is subject to change by the Seller without notice to the Customer.
6. TIMING OF PAYMENT
6.1 Payment shall be deemed to have been made:
6.1.1 If cash is tendered – on the date it is tendered; and
6.1.2 If a cheque (bank or otherwise) or other negotiable instrument is tendered – on the date upon which such cheque or other negotiable instrument is negotiated and cleared by the Seller’s bankers.
7. APPLICATION OF PAYMENTS
7.1 Any payments tendered by the Customer to the Seller shall be applied as follows:
7.1.1 Firstly, as reimbursement for any collection costs incurred by the Seller;
7.1.2 Secondly, in payment of any interest charged to the Customer on any overdue account at the rate of 2% per month from the date of default;
7.1.3 Thirdly, in relation to obligations that are not secured under the Personal Property Securities Act 2009 (Cth) (“PPSA”), in the order in which those obligations were incurred;
7.1.4 Fourthly, in relation to obligations that are secured, but not by purchase money security interests (as defined in the PPSA), in the order in which those obligations were incurred, then,
7.1.5 Fifthly, in relation to obligations that are secured by purchase money security interests, in the order in which those obligations were incurred.
8.1 Any quotation provided by the Seller is valid for 30 days from the date of the quotation, or such other period as specified in the quotation. A quotation is not to be construed as an obligation to sell but merely an invitation to treat and no contractual relationship shall arise from it until the Customer’s order has been accepted in writing by the Seller.
8.2 The Seller shall not be bound by any conditions attaching to the Customer’s order by acceptance of a Quotation unless such conditions are expressly accepted by the relevant Seller in writing.
8.3 Every quotation is subject to and conditional upon obtaining any necessary import, export or other licence that may be required from time to time.
9. DIMENSIONS, PERFORMANCE DATA AND OTHER DESCRIPTIVE DETAILS
9.1 Photographs, drawings, illustrations, weights, dimensions and any other particulars accompanying, associated with or given in a Quotation, descriptive literature or a catalogue approximate the goods offered but may be subject to alteration without notice.
9.2 All pictures and images of goods displayed are for illustrative purposes only.
9.3 Any performance data provided by the Seller or a manufacturer is an estimate only and should be construed accordingly.
9.4 Unless agreed to the contrary in writing, the Seller reserves the right to supply an alternative brand or substitute product where necessary at the Sellers absolute discretion.
10.1 All returns of goods must be approved by the Seller. The Customer shall not return any goods to the Seller without obtaining a written return authorisation number and form from the Seller. The Seller may give a written return authorisation where there has been a shipping error or the Seller’s Goods are faulty or for such other reason as the Seller at its absolute discretion may determine, however:
10.1.1 The Seller will not accept any return of goods after the expiration of seven (7) days from the date of delivery of the goods.
10.2 To the extent permitted by law:
10.2.1 the Seller, at its absolute discretion, reserves the right to refuse or reject any return of goods by the Customer;
10.2.2 the Seller will not provide cash refunds in relation to the return of any goods;
10.2.3 goods made to order at the Customers request cannot be returned.
10.3 Upon approval by the Seller all returns of goods must be made within seven (7) days.
10.4 Authorised returns must be freight prepaid. The Seller will credit returned goods only if they are in saleable condition.
10.5 The Seller reserves the right to impose a handling charge equivalent to 20% of the price of goods returned unless the Customer is a “consumer” for the purposes of the Competition and Consumer Act 2010 (Cth).
10.6 At the absolute discretion of the Seller, the Customer will reimburse and indemnify the Seller for all losses in excess of 20% including freight, bank charges or any other expenses whatsoever.
11. RETENTION OF TITLE
11.1 All goods delivered to the Customer by the Seller remain the property of the Seller until all debts owing by the Customer in respect of such goods have been paid in full. Until payment of such debts, the Customer may sell the goods only in the ordinary course of business and as the Seller’s fiduciary and agent (but the Customer shall not hold itself out as such), and may for the purpose of any such sale part with possession of the goods.
11.2 If the goods are in the Customer’s possession, the Customer holds the goods as trustee for the Seller and must store the goods so that they are identifiable as the property of the Seller and maintain a record of the Seller’s goods held by the Customer.
11.3 The Customer shall in no way represent that it is acting for the Seller and the Seller will not be bound by the contracts with third parties to which the customer is a party.
11.4 In the event that the Customer sells the goods, all proceeds and/or moneys resulting from the sale are to be specifically accounted for as funds relating to that sale and placed into a separate account, either in the Customer’s Bank account or the Bank account of the Customer’s agreed agent, until payment in full to the Seller under the contract.
11.5 The Customer will invoice the sale of goods supplied by the Seller separately and maintain a record of debtors outstanding in relation to the sale of goods supplied by the Seller to the Customer.
11.6 These provisions apply notwithstanding any arrangement under which the Seller provides credit to the Customer and, to the extent there is any inconsistency, these provisions prevail.
11.7 The Seller may recover the price of the goods by such action as it considers appropriate including proceedings to appoint a liquidator to the Customer, if the goods are not paid for within the Seller’s usual credit terms, or any separate arrangement for credit made by the Seller with the Customer, notwithstanding that property in the goods has passed to the Customer.
11.8 Until payment of all debts owing to the Seller in respect of the goods is made in full, the Seller may, without prejudice to any of its other rights, without prior notice, re-take, resume possession and dispose of any goods which remain the Seller’s property in any way the Seller sees fit, and, by its servants and agents, enter upon the Customer’s premises, or any other place where the goods may be, for the purpose if:
11.8.1 There is a breach of any contract between the Seller and the Customer; or
11.8.2 The Customer is declared bankrupt or being a company commences to be wound up or is placed under official management, or a receiver, or a receiver and manager, or a voluntary administrator is appointed in respect of the Customer, its undertaking or property or any part thereof, or an encumbrancer, by itself or by an agent, takes possession of the Customer’s undertaking or property or any part thereof; or
11.8.3 The Customer parts with possession of the goods or any of them otherwise than by way of sale to a Customer in the ordinary course of business.
12. GOODS ON CONSIGNMENT
12.1 Any goods delivered to the Customer on consignment shall remain the property of the Seller until paid for in full.
12.2 Any goods on consignment will be at the risk of the Customer from delivery.
12.3 The Customer shall be responsible for the maintenance and repair of any goods on consignment.
12.4 The Customer will forthwith return any goods on consignment to the Seller on written demand.
13. SECURITY INTEREST UNDER THE PPSA
13.1 The Customer agrees that:
13.1.1 Each order accepted by the Seller, being an order accepted under these Terms and Conditions of Sale, creates a registrable security interest under the PPSA in any goods supplied under it, including goods on consignment;
13.1.2 The Customer acknowledges the right of the Seller to register a financing statement under the PPSA with respect to the security interest created by these Terms and Conditions of Sale;
13.1.3 If the Seller registers a security interest under the PPSA, the Seller may exercise any or all remedies afforded to the Seller as a secured party under it without prejudice to any other rights or remedies arising out of a breach by the Customer of any agreement with the Seller; and
13.1.4 The goods, including goods on consignment, are collateral for the purposes of the PPSA.
13.2 The Customer waives any right the Customer has under the PSPA to receive notice in relation to registration events.
13.3 The Customer and Seller agree that neither will disclose information of the kind specified in Section 275(1) of the PPSA.
13.4 At the election of the Seller to be exercised at any time in its absolute discretion, any section of the PPSA specified in Section 115 will not apply to the extent permitted by Section 115.
14.1 Orders accepted by the Seller cannot be countermanded or delivery deferred or goods returned except with the written consent of the Seller and upon terms that reimburse and indemnify the Seller against all loss including cartage, bank charges and other incidental expenses of any part of the order that is cancelled, however:
14.1.1 The Seller will not accept any return of goods after the expiration of seven (7) days from the date of the order by the Customer.
14.2 Where the Seller agrees to accept goods for return a re-stocking charge of 20% of the price of the goods returned will be made.
14.3 To the extent permitted by law:
14.3.1 the Seller, at its absolute discretions, reserves the right to refuse or reject any cancellations of orders;
14.3.2 goods made to order at the Customers request cannot be cancelled by the Customer.
14.4 Upon approval by the Seller all returns of goods must be made within seven (7) days.
14.5 Authorised returns must be freight prepaid. The Seller will only credit returned goods only if they are in saleable condition.
14.6 The Seller reserves the right to impose a handling charge equivalent to 20% of the price of goods returned unless the Customer is a “consumer” for the purposes of the Competition and Consumer Act 2010 (Cth).
14.7 At the absolute discretion of the Seller, the Customer will reimburse and indemnify the Seller for all losses in excess of 20% including freight, bank charges or any other expenses whatsoever.
15. RISK AND INSURANCE
15.1 Upon delivery to the Customer or into the Customer’s custody (whichever is the sooner) the goods shall be at the risk of the Customer and the Customer shall, at its own cost, insure the goods (in its name) against all risks for which a prudent owner would insure his goods and for their full replacement value.
15.2 This shall also apply to any partial delivery of goods. The Customer shall upon request provide a copy of the insurance policy to the Seller.
16.1 To secure payment of all monies owed to the Seller by the Customer, the Customer hereby gives the Seller a fixed charge over all real property currently owned or later acquired by the Customer and consents to the Seller registering a caveat in this regard.
16.2 If the Customer is a trustee, the Customer represents to the Seller that the Customer has authority under the relevant trust instrument to trade with the Seller and to give the Seller a charge and security interest pursuant to this clause in its capacity as trustee.
16.3 The Customer hereby irrevocably appoints the Credit Manager from time to time of the Seller as its attorney to do all things necessary to create and register each caveat and/or security interest.
17.1 The Seller shall not be obligated to recognise nor shall it be responsible in law or in equity for any credit claims for short delivery or claims for damaged goods, unless the Customer has given written notice to the Seller within seven days of the date on which the goods in question were delivered to or collected by the Customer. If a claim is made within this time limit, acknowledgement and payment of the claim shall be at the complete discretion of the Seller.
17.2 Should the Customer consider that it has any claim (other than claims of the nature referred to in clause 3 above) having regard to these Terms and Conditions of Sale it is entitled to make, it shall:
17.2.1 Immediately upon becoming aware of the circumstances giving rise to such a claim, notify the Seller of the nature of the claim;
17.2.2 The Customer shall not carry out any remedial work to any alleged defective goods without first obtaining the written consent of the Seller; and
17.2.3 Allow the Seller, its servants or agents full and free access to the goods in relation to which the claim is made (or the place where the goods have been applied or used) for the purpose of conducting such tests and examinations as the Seller may in its absolute discretion consider necessary to determine whether the claim is justified or not.
17.3 The Customer acknowledges and agrees with the Seller that:
17.3.1 Use of the goods supplied are beyond the control of the Seller; and
17.3.2 Any advice, recommendation, information or services provided by the Seller, its employees, servants or agents regarding the goods sold and their use shall not be construed as contractual guarantees, conditions or warranties.
17.4 Any repairs undertaken by the Seller in relation to the goods that are deemed outside of the terms of any warranty:
17.4.1 shall attract a service fee charge of $125.00 per hour plus the costs of any replacement parts;
17.4.2 the hourly service fee charge is subject to change by the Seller without notice to the Customer; and
17.4.3 or such other amount provided for in a written quotation provided by the Seller to the Customer.
18. EXCLUSION OF IMPLIED GUARANTEES, CONDITIONS AND WARRANTIES
18.1 The only guarantees, conditions and warranties which are binding on the Seller in respect of the state, quality or condition of the goods supplied by it to the Customer and/or in respect of advice, recommendation(s), information or services supplied by it, its employees, servants or agents to the Customer regarding the goods, their use and application are those imposed and required to be binding by statute (including the Competition and Consumer Act 2010 (Cth)) and all other guarantees, conditions and warranties whether express or implied by law in respect of the state, quality or condition of the said goods which may apart from this clause be binding on the Seller are hereby expressly excluded and negated.
18.2 The liability of the Seller in respect of any guarantee, condition or warranty that cannot be excluded by law shall be limited to:
18.2.1 In the case of goods, to the repair or replacement of the goods or the supply of equivalent goods or the cost of such repair, replacement or supply; and
18.2.2 In the case of services, to having the service supplied again or payment of the cost of having the service supplied again.
18.3 By placing an order with the Seller, the Customer expressly acknowledges and agrees that it has not relied upon, any advice given by a Seller, its agents or employees in relation to the suitability for any purpose of goods or materials supplied by the Seller.
18.4 Except to the extent provided in this clause the Seller shall have no liability (including liability in negligence) to any person for any loss or damage consequential or otherwise howsoever suffered or incurred by any such person in relation to the goods and/or advice, recommendation(s), information or services and without limiting the generality thereof in particular any loss or damage consequential or otherwise howsoever suffered or incurred by any such person caused by or resulting directly or indirectly from any failure, defect or deficiency of whatsoever nature or kind of or in the goods/or advice, recommendation(s), information or services.
18.5 In no event shall the Seller be liable for any indirect, incidental or consequential damages including for, but not limited to, economic loss, non-economic loss, loss of profits, and loss of revenue or damage to goodwill.
19.1 Any quotation made by the Seller to the Customer from time to time, shall not be construed as an offer or obligation to sell but shall be an invitation to treat only, and the Seller reserves the right to accept or reject in its absolute discretion any order which may be received by it from the Customer.
19.2 Until such time as the Seller accepts in writing a written order submitted by the Customer, it shall not be obliged to supply to the Customer the goods so ordered provided always that if at any time the Customer defaults in respect of its payment obligations under these Terms and Conditions of Sale, the Seller may cancel or suspend any uncompleted order that has been accepted by the Seller, without being liable to the Customer in any way whatsoever.
19.3 The Seller shall not be obliged to sell goods to the Customer if:
19.3.1 The Customer defaults in its payment obligations hereunder; and/or
19.3.2 The Customer becomes bankrupt or goes into liquidation or goes into voluntary administration or is unable to pay its debts as they fall due.
19.4 The Seller shall not be responsible to the Customer if it is unable to supply any goods due to reasons beyond its reasonable control (including but without limited to acts of God, acts of any government, war or other hostility, national or international disaster, the elements, fire, explosion, flood, power failure, equipment failure, strikes or lockouts, inability to obtain necessary supplies and raw materials, transportation delay, inability to obtain government or quasi-government approvals, permits or licences and the like and other “force majeure” occurrences).
19.5 If the Seller is unable to supply the Customer’s total order these Terms and Conditions of Sale will apply to the supply of all or part of the order.
20. BACK ORDERS
20.1 Back orders will be supplied to the Customer on the Terms and Conditions of Sale applying at the time the original order is accepted by the Seller.
21.1 The Customer shall inspect the goods forthwith upon delivery and shall within 7 days from the date of delivery give written notice to the Seller of any matter or thing by reason whereof the Customer alleges that the goods are not in accordance with the contract.
21.2 If the Customer fails to give such notice then to the extent permitted by statute the goods shall be deemed to have been accepted by the Customer and the Customer shall pay for the goods in accordance with the provisions hereof.
22.1 The Seller adheres to the National Privacy Principles in respect of any personal information collected from an individual before 12 March 2014 and adheres to the Australian Privacy Principles in respect of any personal information collected from an individual on or after 12 March 2014. In respect of such personal information, the Seller discloses that:
22.1.1 The identity of the Seller and how to contact the Seller are set out on the first page of this Application for Credit.
22.1.2 The individual is entitled to access to the personal information collected.
22.1.3 The personal information is collected for the purpose of processing the application for credit and the application for the supply of goods.
22.1.4 The only organizations to which the Seller discloses the personal information are credit reporting agencies.
22.1.5 The consequences if the personal information is not provided is that the Seller will be unable to process the Application for Credit and/or the application for supply of goods.
23. VIENNA SALES CONVENTION
The United Nations Convention on Contracts for the International Sale of Goods (Vienna 1980) known as the Vienna Sales Convention does not apply to goods supplied by the Seller to the Customer under any contract nor do any terms or conditions express or implied by the Vienna Sales Convention form part of the contract.
24.1 No waiver by the Seller of any one breach of these Terms and Conditions of Sale shall operate as a waiver of another breach of the same or of any other conditions of sale and the doing and/or omission of any act, matter or thing whatsoever by the Seller, its servants or agents (which but for this clause ought or might amount to a waiver of the Seller’s rights in respect of any such breach or default), shall not operate nor be deemed to be a waiver in any way of the Seller’s rights and powers in respect of such breach or default any rule of law or equity to the contrary notwithstanding.
24.2 These conditions and any warranties or guarantees implied by law which are not capable of being excluded or modified, embody the entire understanding and the whole agreement between the Seller and the Customer relevant to the subject matter hereof, subject to express written terms to the contrary on any written Customer order and written acceptance of it (which shall only apply to that particular order), and all previous negotiations, representations, warranties, arrangements and statements (if any) whether expressed or implied, including any collateral agreement or warranty between the Customer and the Seller or the intentions of either of the parties otherwise, are excluded and cancelled.
The Customer agrees that any signature required by the Seller may be obtained in any of the following ways:
25.1 sign any document and return it to the Seller by hand, post, electronically or other method; or
25.2 reply electronically to the Seller stating that the Customer agrees and for the email which contains the Customer’s printed name or signature, or that of any agent servant or employee of the Customer, to be the Customer’s signature; or
25.3 typing the Customers name into any document and confirming by email, by the Customer or any agent servant or employee of the Customer, to the Seller that it should stand as the Customer’s signature; or
25.4 any other method in writing that would identify the Customer, or that of any agent servant or employee of the Customer, and the Customer’s intention of the signature being applied in any document.