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1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In these Terms and Conditions, unless the context otherwise requires:
(i) "Buyer" means the Person named in the Sales Invoice.
(ii) "Sales Invoice" means the sales invoice issued by the Seller
to the Buyer.
(iii) "Seller" means Swan Bush Pty Ltd. A.C.N. 073539134 trading as ‘West
Coast Phones’ A.B.N. 34 013 174 352 it's successors and assigns
1.2 Interpretation
These Terms and Conditions:
(i) Replace all prior terms and conditions issued by Seller to Buyer;
(ii) Take precedence over any terms set out in the Buyer's purchase order,
to the extent of any inconsistency.
(iii) Any special conditions specified on Sales Invoice shall, to the extent
they are inconsistent with these Terms and Conditions, take precedence over
these Terms and Conditions.
(iv) The expression "Person" includes an individual, a body politic,
a corporation, an association (incorporated or unincorporated), a statutory
authority or any other authority or persons identified as the Seller.)
2.
ALTERATION TO TERMS AND CONDITIONS
The Seller may, at any time and from time to time by written notice to the
Buyer, alter these Terms and Conditions of Sale.
3.
TERMS OF PAYMENT
(a) If the Buyer has an approved credit account with the Seller, payment by
the Buyer for goods and services supplied must be paid for within 30 calendar
days of the end of month in which the goods and services are invoiced EXCEPT
where specifically agreed (in writing) between the Buyer and Seller. Such agreement
to remain in force for as many transactions or for a period of time as stated
in the agreement.
(b) In the event of the Buyer's failure to comply with these payment terms
Seller reserves the right to charge a default charge calculated on a daily
basis on any overdue payments at an annual rate equal to 2% above the rate
notified by National Australia Bank from time to time as being that Bank's
indicator lending rate.
4.
CLAIMS
Buyer shall inspect all goods supplied upon delivery. Omissions and Damage
MUST be notified within 1 Working Day of receipt of goods. Seller shall not
be liable for shortages or damage in delivery unless Buyer submits a written
claim to Seller within seven (7) days of receipt of the delivery.
5.
GOVERNING LAW
These Terms and Conditions and any contract including them shall be governed
by the laws of the State of Western Australia and Seller and Buyer submit to
the non-exclusive jurisdiction of the Courts for that State.
6.
PRICES, QUOTATIONS
(a) In the absence of contrary express agreement, the price for goods supplied
shall be Seller's list price ruling at the date of shipping and the charge
for services supplied shall be at Sellers prevailing rates at the time of supply.
Prices quoted in published price list or by Seller's representatives are subject
to change without notice and are not binding on Seller.
(b) All prices are expressed net of any applicable goods and services tax,
freight charges, and customs duty that shall be added to the amount to be paid
by Buyer.
(c) The Seller shall not be bound by any condition attaching to the Buyer's
order or acceptance of a sale unless the Seller in writing expressly accepts
such conditions.
(d) Every sale is subject to and conditional upon obtaining the necessary import,
export or other licence.
(e) A quotation is not to be constructed as an obligation to sell but merely
an invitation to treat and no contractual relationship shall arise until the
Seller has accepted in writing the Buyers order. All quotations lapse thirty
(30) days after issue but the Seller may vary or withdraw quotation at any
time.
(f) All transactions shall be made in Australian dollars without deduction
or set off of any kind.
7.
DELIVERY AND RISK
(a) Risk in the goods will pass to the Buyer upon delivery to the Buyer's nominated
point of delivery.
(b) If Buyer nominates their own vessel or vehicle to deliver the goods to
the Buyer then risk will pass when the goods are loaded onto the Buyer's nominated
vessel or vehicle and Buyer shall be responsible for arranging the insurance
of the goods.
(c) Where Buyer has nominated their own vessel or vehicle for delivery Seller
shall not be liable to Buyer for any loss in the event of any failure in delivery
or to arrange insurance.
(d) While the Seller shall use all reasonable endeavours to meet agreed delivery
dates, Seller shall not be liable to Buyer for any loss or damage whatsoever
should it be delayed or prevented from delivering goods, supplying services,
or otherwise performing any of its contractual obligations due to any cause
or circumstances beyond the Seller's reasonable control.
(e) In the event of any delay in delivery or supply, as aforesaid, the due
date shall be deferred for a period equal to the time lost by reason of the
intervening cause or circumstance. Delivery dates are not to be treated as
an essential condition of the sale EXCEPT where specifically agreed in writing
between the Seller and Buyer.
(f) Subject to clause 7(d), delivery dates shall not be varied once they have
been agreed, without Sellers prior written approval. Should the Seller agree
to postpone delivery, the goods in question shall be stored at Buyer's risk
and the Seller reserves the right to impose a weekly storage charge. Where
delivery is postponed for more than 3 months the Seller at the Sellers discretion
to reflect the Seller's current list price may increase any fixed contract
prices.
(h) Seller may at it's discretion sell any goods subject to clause 7(f) still
in it's possession three (3) months after the mutually agreed deferred delivery
date and seek damages for any loss incurred by the Seller as a result of the
deferment in the delivery date.
8.
RETENTION OF TITLE
(a) Title to the goods supplied by the Seller to the Buyer shall remain with
the Seller until the total amount due in respect of the goods and all monies
owing to the Seller have been paid in full (the "Debts").
(b) The Buyer shall have the right to resell goods, but only as fiduciary agent
and trustee for the Seller by way of bona fide sale at full market value and
in the ordinary course of its business.
(c) Until all the Debts have been paid for in full:
(i) The Buyer shall take custody of the goods as trustee, fiduciary agent and
bailee for the Seller;
(ii) The Buyer shall keep the Seller's goods separate from any other goods
and properly marked, stored, protected and insured.
(iii) The Buyer must hold all of the money it receives ('Proceeds'):
a) From sale of any property into which goods supplied by the Seller have been
incorporated; or
b) For the sale of goods or provision of services including the goods and services
supplied by the Seller
c) As bailee, fiduciary agent and trustee for the Seller, but the Buyer need
not hold on trust any money exceeding the amount of the Debts at the time the
money is received. Receipt by the Buyer of payment shall be treated as conclusive
evidence that it has received Proceeds.
(iv) The Buyer expressly acknowledges that it is bound by fiduciary obligation
created in the preceding paragraph and acknowledges that:
a) It must hold the Proceeds on trust for the Seller.
b) It must place the whole of the Proceeds in an account separate from its
own moneys ('the Proceeds Account).
c) It must maintain the Proceeds Account separate from its own moneys at all
times.
d) It must maintain proper records for the Proceeds Account.
e) It must not assign or encumber any book debts arising from sales made in
circumstances set out in clauses 8. (c)(iii) (a) and (b) or do any other act
in derogation of the Seller's legal or beneficial interests.
f) It must account to the Seller on demand for all moneys standing to the credit
of such account;
g) The Seller may appropriate payments as it thinks fit, notwithstanding any
contrary appropriation by the Buyer.
h) For the purposes of identification of different consignments of goods and
services purchased from the Seller and receipt of Proceeds, the Buyer agrees
that the principle of "Last In, First Out" shall be applied to any
items that cannot be distinguished.
i) The Seller may trace the Proceeds in equity.
(d) On demand by the Seller the Buyer must assign to the Seller all book debts
not exceeding the amount of the Debt at the date of demand.
(e) The Seller may at any time, without notice to the Buyer and without prejudice
to any other rights which it may have against the Buyer, terminate any contract
connected with the goods and the bailment referred to in paragraph (c), and
enter upon any premises owned or occupied by the Buyer where the Seller reasonably
believes the Goods may be stored, repossess the goods without liability for
any damaged caused, and subsequently dispose of the goods at the Seller's discretion
if:
(i) The Debts are not paid in accordance with these Terms and Conditions and
any other contract or arrangement between the Seller and the Buyer
(ii) The Seller receives notice of or reasonably believes that:
a) A third person may attempt to levy execution against the goods;
b) The Buyer is insolvent (within the meaning of the Corporations Law) or bankrupt;
c) The Buyer has entered into any arrangement or composition with its creditors,
gone into liquidation, or has appointed a receiver, a receiver and manager
or administrator.
(f) In after repossession under paragraph (d) the Seller sells the goods, Seller
shall account to Buyer for any excess of the proceeds of sale (less expenses
of repossession and sale) over the costs of the goods.
(g) If any goods belonging to the Seller are disposed of by the Buyer or an
insurance claim is made in respect of them, the Seller shall be entitled to
trace the sale or insurance proceeds, which proceeds shall be held by Buyer
in a separate bank account on trust for Seller.
9.
INSTALLATION
The Seller's Sale Invoice is made on a supply only basis. Installation and
commissioning (if any) is at the expense of the Buyer unless otherwise specified
in writing by the Seller.
(a) The Seller will not agree to delay of payment on sold goods due to issues
arising from Installation and Commissioning. Such issues are to be dealt with
under the remit of any Installation, Commissioning and/or Service Agreement
(if any) negotiated at the time.
(b) Costs provided for Installation, Commissioning and Service Agreements are
to be treated as Estimates and are dependant on the Buyer having disclosed
full and total information relevant to the Installation, Commissioning and/or
Service Agreements.
(c) Should the Seller incur extra costs on Installation, Commission and/or
Service Agreements due to full disclosure of relevant circumstances having
been withheld then the Seller reserves the right to charge additional charges
accordingly.
10.
DIMENSIONS, PERFORMANCE DATA AND OTHER DESCRIPTIVE DETAILS
(a) Photographs, drawings, illustrations, weights, dimensions and any other
particulars accompanying, associated with or given in a quotation, the descriptive
literature or a catalogue, approximate the goods offered but may be subject
to alteration without notice.
(b) Any performance data provided by the Seller or manufacturer is an estimate
only and should be construed accordingly.
(c) The Seller reserves the right to make changes in the construction and/or
design of goods and not withstanding any such changes Buyer shall accept in
performance of any order of the Sellers current corresponding standard models.
.
(d) The Buyer expressly acknowledges and agrees that it has not relied upon
any of the information provided by the Seller to the Buyer and that it understands
that any of the information provided by the Seller in relation to the goods
or services prior to the sale of the goods or services only approximates the
goods or services and can only be treated as an estimate.
11.
WARRANTY AND QUALITY
(a) Certain legislation may imply warranties, terms or conditions that cannot
be excluded, restricted or modified. If those statutory provisions apply, to
the extent to which the Seller is entitled to do so, its liability is limited
at its option to:
(i) The replacement or resupply of the goods; or
(ii) The repair of the goods; or
(iii) The payment of the cost of replacement of the goods; or
(iv) The payment of the cost of the repair of the goods.
(b) Subject to clause 12(a), all goods supplied by the Seller are covered by
a written "Express Warranty" supplied with the goods when sold to
the Buyer. To the extent permitted by law, the Express Warranty is in substitution
for all other terms, conditions, warranties and representations, express or
implied by statute or otherwise.
(c) The Buyer shall immediately notify the Seller in writing upon the discovery
of any defect in the goods. The Buyer shall not carry out any remedial work
or installation to alleged defective goods without first obtaining the written
consent of the Seller to do so.
(d) The Buyer expressly acknowledges and agrees that it has not relied upon
and the Seller is not liable for any advice given by the Seller, its agents
or employees in relation to the suitability for any purpose of goods or materials
supplied by the Seller.
(e) The Buyer acknowledges that to the extent the Seller has made any representation
which is not otherwise expressly stated in these Terms and Conditions, the
Buyer has been provided with an opportunity to independently verify the accuracy
of that representation.
12.
SELLER'S CANCELLATION
(a) The Seller reserves the right immediately to cancel any contract for the
supply of goods or services or suspend any such supply without incurring any
liability to Buyer in any of the following circumstances:
(i) Buyer is overdue with any payment or otherwise in breach of these terms
and conditions;
(ii) Buyer enters into bankruptcy, liquidation or a composition with its creditors,
has a Receiver Manager or Administrator appointed over all or any part of its
assets or becomes insolvent; or
(iii) Contractual performance is delayed or prevented due to any cause or circumstances.
(b) Cancellation by the Seller under this clause shall be without prejudice
to the Sellers right to recover payment from Buyer for goods and services previously
supplied.
13.
BUYER'S CANCELLATION AND RETURNS
(a) Buyer may return goods supplied for a credit against subsequent orders
within (7) days of delivery provided the following conditions are satisfied:
(i) The Seller's written approval has first been obtained and the invoice number
and date have been quoted for reference.
(ii) The goods are returned in their original condition; and
(iii) Buyer agrees to pay to the Seller a handling charge equal to 10% of the
price paid for the goods.
(b) Buyer may cancel, in whole or in part, any contract for the supply of goods
or service before supply has been made providing the following conditions are
satisfied:
(i) The Sellers written approval has first been obtained; and
(ii) Buyer agrees to pay any cancellation changes, being a genuine pre-estimate
of the Sellers loss that the Seller shall specify.
14.
MANUFACTURERS' CHANGES
Where the Seller is acting, as agent of a manufacturer or supplier, the Seller
shall not be liable for any alteration or variation in the goods made by the
manufacturer or the supplier.
15.
CONTINGENCIES AND GST
(a) Any charge, duty, impost, sales tax or other expenditure which is not applicable
at the date of Sales Invoice but which is subsequently levied upon the Seller
in relation to the Sales Invoice as a result of the introduction of any legislation,
regulation or government policy, shall be to the Buyer's account.
(b) The Buyer must pay to the Seller any amount ("GST Amount") which
is payable by the Seller on account of a goods and services tax, value added
tax or any other like tax ("GST") as a consequence of any supply
made or deemed to be made or other matter or thing done under or in connection
with these Terms and Conditions. The GST Amount must be calculated by multiplying
the amount on which the GST is calculated by the prevailing rate of GST.
(c) The Buyer must pay any GST Amount at the same time and in the same manner
as making payment of any consideration on which the GST Amount is calculated.
If the GST Amount is not calculated on consideration, the Buyer must pay the
GST Amount within 7 days of receipt of a written demand from the Seller. The
Buyer must pay any amount it is required to pay under this clause in full and
without deduction, notwithstanding any entitlement that it may have to a credit
or offset however arising.
16.
FORCE MAJEURE
If in the performance or observance of its obligations the Seller is prevented,
restricted or affected by reason of force majeure including strike, lock out,
industrial dispute, material shortage, stock shortage, breakdown of plant,
transport or equipment or any other cause beyond the reasonable control of
the Seller, the Seller may, in its absolute discretion give prompt notice of
such cause to the Buyer whereupon the Seller is excused from such performance
or observance to the extent of such prevention, restriction or affectation.
17.
LIABILITY OF SELLER
Except as expressly provided herein and to the extent permitted at law:
(a) The Seller shall not be under any liability, whether in contract, tort
or otherwise in respect of defects in goods delivered or for any injury, damage
or loss resulting from such defects or from any work done in connection therewith
except to the extent that any statute applicable to these Terms and Conditions
prevent the exclusion, restriction or modification of such terms and conditions;
(b) The Seller shall not be liable to the Buyer for any loss of profit howsoever
arising nor shall the Seller be under any liability whether in contract, tort
or otherwise for any injury, damage, or loss whether consequential, special,
indirect or otherwise save as is expressly provided in these Terms and Conditions.
(c) The Buyer indemnifies the Seller against any liability to or action by
a third party for infringement or alleged infringement of a patent, registered
design, trademark or copyright in respect of goods manufactured to the Buyer's
specification; and
(d) The Buyer indemnifies the Seller against any liability for any direct,
indirect or consequential injury, loss or damage arising out of any act, default
or omission of, or any representation made by the Buyer or its servants or
agents.
(e) All goods are supplied in accordance with usual industry standards and
the Seller shall not be liable to the Buyer for the condition or quality of
the goods that comply with these standards.
18.
GENERAL
(a) All clerical errors are subject to corrections and shall not bind the Seller.
(b) No employee of the Seller is authorised to bind the Seller unless the Seller
has given Buyer express written notice to that effect.
(c) The invalidity or unenforceability of any provision of these Terms and
Conditions shall not affect the validity or enforceability of the remaining
provisions.
(d) The Sellers failure to enforce, at any time or any period of time, any
term of any contract incorporating these Terms and Conditions shall not constitute
waiver of such term and shall in no way affect its right to enforce it.
(e) Headings are included for ease of reference and do not form parts of or
affect the interpretation of these Terms & Conditions.
(f) These Terms and Conditions bind the Seller, Buyer and their respective
successors and assigns.
E&OE
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