1.1 “Seller” shall mean "Pete’s Shoppe"
1.2 “Buyer” shall mean the Buyer or any person or Seller acting on behalf of the authority of the Buyer.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debt of the buyer if the Limited liability Buyer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Seller to the Buyer (and where the context so permits shall include any supply of services as hereinafter defined).
1.5 “Services” shall mean all services supplied by the seller to the buyer and includes any advice and recommendations (and where the context so permits shall include any supply of goods as defined supra).
1.6 “Price” shall mean the cost of the Goods as agreed between the Seller and the Buyer subject to clause 4 of this contract.
2.1 Any instructions received by the Seller from the Buyer for the supply of Goods and /or the Buyer’s acceptance of Goods and /or the Buyers supplied by the Seller shall constitute acceptance of the terms and conditions contained here within.
2.2 Upon acceptance of these terns and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.
2.3 None of the Sellers agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
3.1 The Goods shall be described on the invoices, quotations, work authorisations, sales orders or any other work commencement forms as provided by the Seller to the Buyer.
3.2 The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less then the quantity purchased provided that;
a) such discrepancy in quantity shall not exceed 20%.
b) the Price shall be adjusted pro rata to the discrepancy.
4.1 At the Sellers sole discretion;
a) the Price shall be as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or
b) the Price shall be the Seller’s current price at the date of delivery of the Goods according the sellers current Price list; or
c) the Price of the Goods shall be the Seller’s quoted Price which shall be binding upon the Seller provided that the buyer shall accept in writing the Seller’s Quotation within thirty (30) days.
4.2 At the Sellers sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods/ Services and shall become immediately due and payable.
4.3 Time for the payment for the Goods/ Services shall be essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then the payment shall become immediately due and payable.
4.4 The Seller may withhold delivery of Goods until the Buyer has paid for them, in which event payment shall be made before the delivery date.
4.5 At the Sellers sole option for approved Buyers payment may be made within thirty (30) days of the invoice date.
4.6 Payment will be made by cash on delivery, or by cheque, or by bank cheque, Credit card, or by direct credit or by any other method as agreed to between the Buyer and the Seller.
4.7 The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes and expressly included in any quotation given by the Sellers.
5.1 Delivery of goods will be made at the Buyers address. The Buyer shall make all arrangements necessary to take delivery of Goods whenever they are tendered for the delivery or delivery may be at the Buyers address or delivery shall be made at the Sellers address.
5.2 Delivery of the Goods to a carrier, either named by the Buyer or failing such naming to a carrier at the discretion of the Seller for the purpose of transmission to the Buyer, is deemed to be a delivery of the Goods to the Buyer.
5.3 The cost of carriage and any insurance which the Buyer reasonably directs the Seller to incur shall be reimbursed by the Buyer (without any out set- off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Buyer’s agent.
5.4 Where there is no agreement the Seller shall send the Goods to the Buyer, Delivery to a carrier at limited carrier’s risk at the expense of the buyer is deemed to be delivery to the Buyer.
5.5 Delivery of goods to a third person, named by the Buyer, is deemed to be the delivery of the Goods to the Buyer.
5.6 The Seller may deliver the Goods by separate instalments (in accordance with the agreement delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in the contract of sale.
5.7 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
5.8 The Seller shall not be liable for any loss or damage whatever due to failure by the seller to deliver the Goods (or any of them) promptly or at all.
6.1 If the Seller retains property in the Goods nonetheless all risk for the Goods passes to the Buyer on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, Seller is entitle, without prejudice to any of its others to remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these terms and conditions. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s right to receive the insurance proceeds without the need for any person dealing with the seller to make further enquiries. The Seller will apply the insurance proceeds as follows;
(i) first, in payment of the Price of the goods that are damaged or destroyed, if unpaid;
(ii) second, in payment of the outstanding Price of the Goods supplied to the Buyer by the Seller whether under the terms and conditions or otherwise.
(iii) third, in the payment of any other sum payment to the Seller by the Buyer on any account.
(iv) fourth, any balance is to be paid to the Buyer.
7.1 The Buyer shall inspect the Goods within seven (7) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage of failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with terms and conditions and free from defect or damage.
8.1 For defective goods which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either ( at the Seller’s discretion) replacing the Goods or repairing the Goods provided that:
a) the Buyer has complied with the provisions of the 7.1;
b) the Goods are returned within seven (7) days of delivery date;
c) the Seller will not be liable for Goods which have not been stored or used in the proper manner
d) the Goods are returned in the condition in which they were delivered and with all packaging materials, brochures and instructions material in as new condition as is reasonable possible in the circumstances.
9.1 For Goods not manufactured by the Seller the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty.
9.2 The seller does not undertake that repair facilities and parts will be available for the Goods and will not be liable to repair any defective Goods and at its own Discretion may:
a) Notify the manufacture of the Goods of any defect notified by the Buyer; and
b) Request the manufactures to repair or replace any defective Goods.
9.3 In respect of all claims the Seller shall not be liable to compensate the Buyer for any delay in either replacing or repairing the Goods or in properly assessing the Buyers claim.
10. Commonwealth Trade Practices Act 1974 and Fair Trading Acts
10.1 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or The Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts were applicable.
11. Buyers Disclaimer/ Cancellation
11.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damagers or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller.
11.2 The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatever arising from such cancellations.
12. Default & Consequences of Default
12.1 Interest on overdue invoices shall accrue from the date when the payment becomes due daily until the date the payment at a rate of 2.5% per calendar month and shall accrue at such a rate after as well as before any judgement.
12.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all the Seller’s costs and disbursements including on a solicitor and own client basis and in addition all EC Credit Control Pty Ltd’s costs of collection.
12.3 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of any obligations (including those relating to payment); the Seller may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Buyer for the loss or damage suffers because the Seller exercised its rights under this clause.
12.4 In the event that:
a) Any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
b) The Buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
c) A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer; then
i. The Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and
ii. All amounts owing to Sellers shall, whether or not due for payment, immediately become payable.
13.1 It is the intention of the Seller and agreed by the Buyer that title in the Goods shall not pass until;
a) The buyer has paid all the amounts owing for the particular Goods; and
b) The Buyer has met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer, and that the Goods, or proceeds of the sale of the Goods, shall be kept separately until the Seller shall have received payment and all other obligations of the buyer are met.
13.2 It is further agreed that:
a) The Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller.
b) Until such time as ownership of the Goods shall pass from the seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such a notice the rights of the buyer to obtain ownership or any other interest in the Goods shall cease.
c) If the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the property of the Seller.
d) The Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.
e) The Seller may require payment of the price or the balance due together with any amounts due from the Buyer to the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amount due and the price.
f) The Seller can issue proceeding to recover the price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.
14.1 Notwithstanding anything to the contrary contained herein or any other rights which may have howsoever:
a) Where the Buyer and /or the Guarantor (if any) is the owner of the land, realty or any other assets capable of being charged, both the Buyer and /or the Guarantor agree to mortgage and /or charge all of their joint and /or several interest in said land, realty or any other asset to the Seller or Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The buyer and/ or the grantor acknowledge and agree that the seller (or seller’s nominee) shall be entitle to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
b) Should the Seller elect to proceed in any manner in accordance with this clause and /or sub- clauses, the Buyer and / or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on the solicitor and own client basis.
c) To give effect to the provision of clause [14.1 (a) and (b)] inclusive hereof the Buyer and/or Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee, as the Buyer’s and /or Guarantor’s true and lawful attorney to execute mortgages and charges (weather register able or not) including such other terms and conditions as the Seller and shall think fit in his/ its/ their absolute discretion against the joint and/ or several interest of the Buyer and/ or Guarantor in any land, realty or asset in favour of the Seller and in the Buyer’s and/ or Guarantor’s name as may be necessary to secure the said Buyer’s and/ or Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the sellers absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
15.1 The Buyer and/ or the Guarantor/s agree for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relations to credit provided by the Seller.
15.2 The Buyer and/or Guarantor/s agree that the Seller may exchange information about Buyer and Guarantor/s with those credit providers named in the Application for Credit Account or named in a consumer Credit report issued by a reporting agency for the following purposes:
a) To assess an application by Buyer;
b) To notify other credit providers of a default by the Buyer;
c) To exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other credit providers; and
d) To assess the credit worthiness of Buyer and guarantor/s.
15.3 The Buyer consents the Seller being given a consumer credit report to collect overdue payments on commercial credit (section 18k (1)(h) Privacy Act 1988).
15.4 The Buyer agrees that the personal Data provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Buyer and Seller or required by law from time to time:
a) Provision of Goods and Services;
b) Marketing of Goods and or Services by the Seller, its Agents or Distributors in relation to Goods and Services;
c) Analysing, verifying and/ or checking the Buyer’s credit, payments and/ or status in relation to provision of Goods/ Services;
d) Processing of any payment instructions, direct debit facilities and/ or credit facilities requested by Buyer; and
e) Enabling the Daily operation of Buyer’s account and/ or the collection of amounts outstanding in the Buyer’s account in relation to the Good and Services.
15.5 The Seller may give information about the Buyer to a credit reporting agency for the following purposes:
a) To obtain a consumer credit report about the Buyer; and or
b) Allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.
16. Lien & Stoppage in Transit
16.1 Where the Seller has not received or been tendered the whole of the price, or the payment has been dishonoured, the Seller shall have:
a) A lien on the Goods;
b) The right to retain them for the price while the Seller is in Possession of them;
c) A right of stopping the Goods in transit whether or not delivery has been made or ownership has passed; and
d) A right to resale,
e) The forgoing right of disposal, provided that the lien of the seller shall continue despite the commencement of proceedings or judgement for the price having been obtained.
17. Unpaid Sellers rights to dispose of Goods
17.1 In the event that:
a) The Seller retains possession or control of the Goods; and
b) Payment of the price is due to the Seller; and
c) The Seller has made demand in writing of the Buyer for payment of the price in terms of this agreement; and
d) The Seller has not received the price of the Goods, then, weather the property in the Goods has passed to the Buyer or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Buyer the loss to the Seller on such disposal.
18. Intellectual Property
18.1 Where the Seller has designed or drawn Goods for a Buyer, then the copyright in those designs and drawings shall remain vested in the seller, and shall only be used by the Buyer at the Seller’s discretion.
18.2 Conversely, in such a situation, where the Buyer has supplied drawings, the Seller in its sale conditions may look for an indemnity (the specifications and design of the Goods (including the copyright, design right or other intellectual property in term) shall as between the parties be property of the Seller). Where any designs of specifications have been supplied by the Buyer for Manufacture by tor to the order of the Seller then the Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
19.1 If any provision of these terms and conditions shall invalid, void or illegal or unenforceable the validity existence and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 All Goods Supplied by the Seller are subject to the laws of New South Wales and the Seller takes no responsibility for there changes in the law which affect the Goods supplied.
19.3 The Seller shall be under no liability whatever to the Buyer for any indirect loss and/ or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
19.4 The Buyer shall not set off against the price amounts due from the Seller.
19.5 The Seller may licence or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
19.6 The Seller reserves the right to review these terms and conditions at any time from time to time. If, the following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Seller Notifies the Buyer of such changes.
19.7 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods. Unperformed in addition to and without prejudice to any other remedies; and ii) all amounts owing to the Seller shall, whether or not due for payment, immediately become payable.