TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sales shall apply to all sales made by the Seller and are deemed to be incorporated in any contract for sale of Goods entered into by the Seller whether arising from an order received from the Buyer or resulting from a Quotation or arising from oral acceptance of repeat or further orders for the same or similar Goods and shall terminate, cancel and supersede any previous written or oral agreements and understandings entered into between the Buyer and the Seller.
These Terms and Conditions of Sale, including any credit limits set by the Seller are effective from the date of initial trading and may be amended or superseded from time to time by notice given by the Seller by any means.
(a) "Buyer" or "you" shall mean the person or company named in the Tax Invoice or Quotation and, in the case of an individual, his/her executors, administrators and assigns, and of a company its successors and assigns.
(b) "Seller" or "us" shall mean Tasman Sinkware Pty Ltd ACN 007 551 886;
(c) "Guarantor" shall mean any individual or company that enters into a separate written agreement with the Seller, to guarantee payment of all monies owed by the Buyer to the Seller from time to time.
(d) "Goods" shall mean any product or item supplied by the Seller to the Buyer (or ordered by the Buyer but not yet supplied) including, but in no way limited to, sinkware, tapware, and kitchen accessories;
(e) "Quotation" means the form of quotation submitted by the Seller to the Buyer.
(f) "Tax Invoice" means the document called the Tax Invoice issued by the Seller to the Buyer, as compliant with current legislation.
(g) Any special conditions set forth in the Quotation shall be read and constructed so as to vary these printed Terms and Conditions but only to the extent of any inconsistency.
(a) A Quotation is not an offer. A Quotation shall be valid for a period of 30 days from the date of issue unless otherwise agreed to in writing by the Seller.
(b) An order placed by the Buyer pursuant to a Quotation is not binding on the Seller (including any purported variation to these Terms and Conditions contained in that Order) unless and until such Order and such conditions are accepted in writing by the Seller.
(a) GST or any other value added taxes, duties, or impost which may be applicable, shall be to the Buyer's account and added to the price. The Buyer's ABN and other required information must be provided prior to or at the time of ordering. GST is based on the rate and method of assessment ruling at the date of invoice and/or delivery, whichever is applicable.
(b) Between the date of order and delivery if there is an increase in the cost to the Seller of supplying the Goods which is beyond the control of the Seller, then this shall be to the account of the Buyer.
4. Shipment and Delivery:
(a) The Seller shall have the right to nominate the means of and the date of delivery.
(b) If the Seller is prevented by circumstances beyond its control from shipping or delivering within the stipulated time, such time will be extended for a reasonable period after such circumstance have ceased to operate and the Seller shall not be liable for any loss or damage (including loss or damage) whether direct or indirect, arising from delays in shipping or delivery.
(c) The Buyer is responsible for all freight costs outside of our nominated Free Instore Store (FIS) delivery areas, as stated in the current printed price list. If the Buyer nominates a carrier, this must be advised to the Seller in writing.
5. Part Deliveries:
(a) Unless agreed to the contrary in writing, the Seller reserves the right to make part deliveries of any order. Failure to make the delivery of the total order shall not invalidate the sale. Where delivery is effected by part delivering the Goods then Seller shall be entitled to invoice the customer for the Goods delivered.
(b) The Buyer shall be responsible for and shall indemnify the Seller for loss of or damage to the Goods from the time of delivery until paid for in full.
6. Passing of Property and Risk:
(a) While risk in the Goods shall pass on delivery, legal and equitable title shall remain with the Seller until it has received payment in full for all monies owed by the Buyer.
(b) Pending such payment, the Buyer shall hold the Goods as bailee for the Seller and shall return the Goods to the Seller if so requested. Also, pending such payment, the Seller will hold the proceeds of sale on trust for the Buyer and must account to Buyer for the proceeds of any sale of the Goods.
(c) Should the Buyer fail to make due payment for any and all monies owed by the Seller or commit an act of bankruptcy or by act or omission enable the appointment of a scheme manager, trustee, official manager, receiver, receiver manager, administrator, liquidator or any other person authorised to enter into possession or assume control of any property of the Buyer pursuant to a mortgage or other security, the Seller, may without prejudice to any other rights it may have, do any or all of the following:
(i) withdraw any credit facilities which may have been extended to the Buyer and demand immediate payment of all monies owing to the Seller;
(ii) withhold any further deliveries of Goods, or performance of services required under the contract, whether in transit or not;
(iii) in respect of Goods already delivered, enter onto the Buyer's premises to recover those Goods and re-sell those Goods for its own benefit. This may involve removal of screws, bolts or other non-permanent fasteners. Where Goods have already been on-sold the Seller shall be entitled to the proceeds of the sale of those Goods;
(iv) suspend and/or terminate performance of any other contracts (without penalty) which the Seller has with the Buyer.
(v) This passing of property and risk clause is a term and condition of sale which will not be varied by the Seller except pursuant to an agreement in writing between the Buyer and the Seller.
You hereby charge in favour of us:
(a) all your estate and interest in any land, freehold or leasehold, in which you now have any legal or beneficial interest in, or which you later acquire any such interest in, with payment of all monies owed by you to us from time to time and hereby consent to us lodging a caveat or caveats which note our interest in your land; and
(b) all your present and after acquired personal property with payment of all monies owing to us from time to time, with such personal property including, without limitation, all the stock, motor vehicles, plant equipment owned by you now and in the future, and monies owed to you now and in the future by your debtors,
8. Personal Property Securities Act 2009:
(a) You acknowledge that the Agreement constitutes a security agreement for the purposes of section 20 of the Personal Property Securities Act 2009 ("PPSA") and that the retention of title in Goods in clause 6 and charging of personal property in clause 7(b) are both security interests under the PPSA.
(b) You will execute documents and do such further acts as may be required by us to register our security interests granted to us under the Agreement.
(c) You hereby waive your rights under the following provision of Part 4 of the PPSA:
(i) to receive a notice of intention of removal of an accession (section 95);
(ii) to receive a notice that we decide to enforce our security interest in accordance with land law (section 118);
(iii) to receive a notice of enforcement action against liquid assets (section 121(4));
(iv) our obligation to dispose of or retain collateral (section 125);
(v) to receive a notice of disposal of Goods by us purchasing the Goods (section 129);
(vi) to receive a notice to dispose of Goods (section 130);
(vii) to receive a statement of account following disposal of Goods (section 132(2));
(viii) to receive a statement of account if no disposal of Goods for each 6 month period(section132(4));
(ix) to receive notice of any proposal of ours to retain Goods (section 135(2));
(x) to object to any proposal of ours to either retain or dispose of Goods (section 137(2));
(xi) to redeem to Goods (section 142);
(xii) to reinstate the security agreement (section 143);
(xiii) to receive a notice of any verification statement (section 157(1) and section 157(3);
(d) You further agree that where we have the rights in addition to those under Part 4 of the PPSA, those rights will continue to apply.
(e) Until ownership of the Goods passes, you agree not to grant a security interest in the Goods to any third party, without our prior written consent.
(f) You acknowledge that you have received value as at the date of first delivery of the Goods and have not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to us under these Terms and Conditions.
(g) You irrevocably grant to us the right to enter upon your property or premises, without notice, and without being in any way liable to you or to any third party, if we have cause to exercise any of our rights under sections 123 and/or 128 of the PPSA, and you shall indemnify us from any claims made by any third party as a result of such exercise.
9. Cancellation of Contract:
(a) Unless expressly provided in writing the Buyer shall have no right to cancel the contract. If a right of cancellation is expressly reserved to the Buyer it must be exercised by the notice in writing to the Seller not later than seven (7) days prior to the estimated date of delivery by the Seller.
(b) Without prejudice to any other rights the Seller may have, the Buyer shall indemnify the Seller for any loss, damage or expense incurred by the Seller should the Buyer cancel any order or part of an order.
10. Dimensions, Performance Data and Other Descriptive Details:
As the Goods are the subject of continuous evaluation and the production methods subject to change the Seller reserves the right to change without notice the construction, design, dimensions and performance data of the Goods.
(a) All implied conditions, warranties and undertakings other than those implied by Schedule 2 of the Competition and Consumer Act 2010 are expressly excluded.
(b) Where the goods are of a kind other than goods ordinarily acquired for personal, domestic or household use, then Seller's liability for breach of a condition, term or warranty implied by Section 64A of Schedule 2 of the Competition and Consumer Act 2010 limited, at its option, to any one or more of the following:
(i) the replacement or repair of the Goods or the supply of equivalent Goods; or
(ii) the payment of the cost of the Goods or repairing the Goods or of acquiring equivalent Goods.
(c) The conditions applicable to any warranty given by the Seller are:
(i) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
i. failure on the part of the Buyer to properly maintain any Goods; or
ii. failure on the part of the Buyer to follow any instructions or guidelines provided by the Seller; or
iii. Any use of any Goods otherwise than for any application specified on a quote or order form, price book or catalogue issued by the Seller; or
iv. the continued use of the Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
v. Fair wear and tear, any accident or act of God.
(ii) The warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller's consent.
(iii) In respect of all claims the Seller shall not be liable to compensate the Buyer for any delay in either replacing or repairing the workmanship or Goods or in properly assessing the Buyer's claim.
(a) Any instructions received by the Seller from the Buyer for the supply of Goods and/or the Buyer's acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and contains contained herein.
(b) The Buyer shall be deemed to have accepted the Goods to be of the description, quality and quantity ordered unless particulars of any claim to the contrary are notified to the Seller in writing within forty-eight (48) hours after delivery.
(c) The Seller shall not be obligated to accept return of Goods unless such return is authorised by the Seller in writing. The Seller reserves the right to apply and you agree to pay a handling fee and/or restocking fee.
(d) Goods specifically manufactured or altered from standard specifications are not returnable.
(e) Only Goods returned in saleable condition can be accepted.
(f) Freight costs for returned Goods (excluding warranty work) are at the Buyer's expense.
(g) All requests for credits shall include the invoice number and date.
(h) Goods returned for credit must be received by the Seller within 30 days of original invoice date.
(i) Display stands shall at all times remain the property of the Seller but be held by the Buyer at their risk. The Seller may at any time request the return of a display stand, and where not returned, or returned in an unfit state the Seller has the right to charge the Buyer for the cost of replacement or repair.
Subject to any legislation to the contrary:
(a) to the fullest extent permitted by law, we are not liable for any injury to or death of any person or loss (including loss of profits or consequential loss) or damage to property arising from any act or omission by Buyer, Seller or any other person (including any loss or damage arising from our negligence);
(b) you indemnify us against:
(i) any claims made against us by any third party in respect of any loss, damage, death or injury;
(ii) all losses and expenses which we may suffer or incur due to your failure to observe fully your obligation under this Agreement.
14. Outside Interference:
The Seller shall not be liable to the Buyer for any defect, loss, damage or delay caused by strikes, lock-outs, damage to or breakdown of plant, Government interference, acts of God, earthquake, civil commotion, war, fire, force majeure or any other cause beyond the control of the Seller.
15. Terms of Payment:
(a) The Buyer agrees that until the Seller grants credit terms, all Goods are supplied on a cash before delivery basis.
(b) Where credit terms are granted and unless otherwise agreed to in writing by the Seller, payment for all Goods purchased shall be made on or before the last day of the month following the date of delivery.
The Seller reserves the right to cancel all trade discounts or rebates in the event that the Buyer fails to comply with these Terms and Conditions of Sale.
17. Default by Buyer:
(a) If a Buyer should default then the Seller, without prejudice to any other remedies the Seller may have, may perform any of the following acts:
(i) Credit facilities may be amended or withdrawn at the Seller's sole discretion, without notice;
(ii) The Seller may suspend or terminate the supply of Goods, including any part order which remains unperformed, to the Buyer and any of its obligations under the Terms and Conditions; or
(iii) The Seller may reclassify all amounts owing by the Buyer as immediately payable,
(b) The Seller will not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its rights under this clause.
(c) The Buyer agrees that, in the event it fails or neglects to any and all monies due under any invoice issued by the Seller within the due time for payment specified therein, it shall pay to the Seller:
(i) interest at the rate of 1% per month on any overdue amount, calculated from the day after the due date until payment;
(ii) all losses, liabilities, costs and expenses (including and without limitation, collection and/or legal expenses on a full indemnity basis) incurred by the Seller in connection with the enforcement or attempted enforcement or preservation or attempted preservation of the Seller's rights under these Terms and Conditions. The Buyer acknowledges that collection expenses may be calculated on a commission basis at a percentage rate of 20% of the amount due and expressly agrees to pay for those expenses, irrespective of the amount of work actually performed by the collection agent.
18. Credit Enquiries:
The Buyer and/or Guarantor hereby permits the Seller to make enquiries of and exchange information on whomever is deemed necessary for the purpose of assessing the application for credit; assessing the ongoing credit worthiness of the Buyer and/or Guarantor and managing/notifying any default event that may occur and further permits those giving the information to the Seller, in accordance with the Privacy Act 1988 (as amended).
19. Applicable law:
The contract shall in all respects be construed in accordance with the laws in force from time to time in the state where the contract is formed. The clause headings shall not affect the construction. If any of the provisions are found to be unlawful or invalid under any applicable statute or rule of law, they are to the extent deemed omitted without effect to the remaining provisions.
(a) Except as required by law, this Agreement and subject to the PPSA, we and you agree to treat the terms of this agreement as confidential.
(b) We and you acknowledge that this Agreement constitutes a confidentiality agreement.
(c) Pursuant to section 275(6), you agree not disclose, send or make available any of the information referred to in Section 275 (1) of the PPSA to any person except as required by law.
These Terms and Conditions embody the whole agreement between the parties unless the Seller has amended any clauses expressly in writing, and take precedence over any other Terms and Conditions to the extent of any inconsistency.
22. Notifications and Variations to Terms and Conditions
(a) The Buyer agrees to notify the Seller in writing within seven (7) days of any change whatsoever in ownership structure, business name or contact details and further, indemnifies the Seller against any loss or damage that may result from the Buyer's failure to notify the Seller of any such change.
(b) The Seller undertakes to give the Buyer not less than thirty (30) days prior written notice of any changes in the Seller's list prices of the Goods.
(c) The Seller reserves the right to review these Terms and Conditions at any time. If, following a review, there is any change it will be deemed to take effect from the date on which the Seller publishes the change.
23. Miscellaneous Fees and Charges
(a) A $20.00 (pre-GST) surcharge will apply to all invoices that have Nett value of less than $100.00 (pre-GST);
(b) The Seller reserves the right to impose at least a 20% restocking fee.
(c) Where a cheque is issued or electronic banking transaction for payment of Goods or payment of a credit account is dishonored by a Buyer's bank, a returned transaction fee for an amount to be determined by us from time to time (exclusive of GST) will apply.
(d) A Logistic fee may be charged on orders for an amount to be determined by us from time to time details are available from branch of despatch.
Under its policy of ongoing product development, Tasman Sinkware may from time to time change product specification without notice. WARNING: Products on this site and all literature pertaining to, are subject to Intellectual Property Protection. All dimensions given are approximate and should be checked prior to installation. Product colour reproduction is as near to actual as methods allow.
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