Terms of Trade
1.1 “Supplier” shall mean Harpair Pty Ltd and its successors and assigns.
1.2 “Buyer” shall mean the Buyer or any person or Supplier acting on behalf of and with the authority of the Buyer.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Buyer if a Limited Liability Buyer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by the Supplier 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 Supplier to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Services as defined supra).
1.6 “Price” shall mean the cost of the Goods as agreed between the Supplier and the Buyer subject to clause 4 of this contract.
2.1 Any instructions received by the Supplier from the Buyer for the supply of Goods and/or the Buyer’s acceptance of Services and/or Goods supplied by the Supplier shall constitute acceptance of the terms and conditions contained herein.
2.2 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Supplier.
2.3 None of the Supplier’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Supplier in writing nor is the Supplier bound by any such unauthorised statements.
3.1 The Goods shall be as described on the invoices, quotation, confirmation, work authorisation, sales order or any other work commencement forms as provided by the Supplier to the Buyer.
4. Price And Payment
4.1 At the Suppliers sole discretion;
(a) The Price shall be as indicated on invoices provided by the Supplier to the Buyer in respect of Goods supplied; or
(b) The Price of the Goods shall, subject to clause 4.2, be the Suppliers quoted Price which shall be binding upon the Supplier provided that the Buyer shall accept in writing the Suppliers quotation within thirty (30) days.
4.2 Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Supplier’s quotation and will be shown as extras on the invoice. At the Supplier’s sole discretion payment for all extras must be made in full either prior to commencement or at their time of completion.
4.3 At the Suppliers 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. Any such deposit shall only be refundable at the Supplier’s sole discretion.
4.4 At the Suppliers sole discretion, for certain approved Buyers payment will be due seven (7) days following the date of the invoice.
4.5 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by any other method as agreed to between the Buyer and the Supplier.
4.6 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 are expressly included in any quotation given by the Supplier.
5. Delivery Of Goods / Services
5.1 Delivery of the Goods shall be made to the Buyer’s nominated site address. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
5.2 The Supplier may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale.
5.3 The failure of the Supplier to deliver shall not entitle either party to treat this contract as repudiated.
5.4 The Supplier shall not be liable for any loss or damage whatever due to failure by the Supplier to deliver the Goods (or any of them) promptly or at all.
6.1 If the Supplier 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, the Supplier is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
7.1 The Buyer shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Buyer shall afford the Supplier an opportunity to inspect the Goods within a reasonable time following delivery. If the Buyer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8. Return Of Goods
8.1 For defective Goods which the Supplier has agreed in writing that the Buyer is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Goods or repairing the Goods provided that:
(a) the Buyer has complied with the provisions of clause 7.1;
(b) the Goods is returned at the Buyers cost within seven (7) days of the delivery date;
(c) the Supplier will not be liable for Goods which have not been stored or used in a proper manner;
(d) the Goods is returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonable possible in the circumstances.
8.1 For Goods not manufactured by the Supplier the warranty shall be the current warranty provided by the manufacturer of the Goods. The Supplier shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty.
10. The 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 where applicable.
11. Intellectual Property
11.1 Where the Supplier has designed or drawn plans the Goods for the Buyer, then the copyright in those designs and drawings shall remain vested in the Supplier, and shall only be used by the Buyer at the Supplier’s discretion.
11.2 Conversely, in such a situation, where the Buyer has supplied drawings, the Supplier 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 them) shall as between the parties be the property of the Supplier). Where any designs or specifications have been supplied by the Buyer for manufacture by or to the order of the Supplier 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.
11.3 The Buyer warrants that all designs or instructions to the Supplier will not cause the Supplier to infringe any patent, registered design or trademark in the execution of the Buyers order.
12. Default & Consequences Of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of 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 Supplier from and against all the Supplier’s costs and disbursements including on a solicitor and own Buyer basis and in addition all of costs of collection.
12.3 Without prejudice to any other remedies the Supplier may have, if at any time the Buyer is in breach of any obligation (including those relating to payment), the Supplier may suspend or terminate the supply of Goods to the Buyer and any of its other obligations under the terms and conditions. The Supplier will not be liable to the Buyer for any loss or damage the Buyer suffers because the Supplier exercised its rights under this clause.
12.4 If any account remains unpaid at the end of the second month after supply of the Goods or services the following shall apply: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
12.5 In the event that:
(a) any money payable to the Supplier becomes overdue, or in the Supplier’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 without prejudice to the Supplier’s other remedies at law
(i) the Supplier 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 the Supplier shall, whether or not due for payment, immediately become payable.
13.1 It is the intention of the Supplier and agreed by the Buyer that property in the Goods shall not pass until:
(a) The Buyer has paid all amounts owing for the particular Goods; and
(b) The Buyer has met all other obligations due by the Buyer to the Supplier in respect of all contracts between the Supplier and the Buyer, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Supplier 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 Supplier in any way which may be adverse to the Supplier.
(b) Until such time as ownership of the Goods shall pass from the Supplier to the Buyer the Supplier may give notice in writing to the Buyer to return the Goods or any of them to the Supplier. Upon such 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 Supplier then the Supplier or the Supplier’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 Goods, without being responsible for any damage thereby caused.
(d) Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Supplier’s ownership of rights in respect of the Goods shall continue.
(e) 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 Supplier.
(f) The Supplier may require payment of the Price or the balance of the Price due together with any other amounts due from the Buyer to the Supplier arising out of these terms and conditions, and the Supplier may take any lawful steps to require payment of the amounts due and the Price.
(g) The Supplier can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.
14. Security And Charge
14.1 Notwithstanding anything to the contrary contained herein or any other rights which the Supplier may have howsoever:
(a) Where the Buyer and/or the Guarantor (if any) is the owner of land, realty or any other asset 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 the said land, realty or any other asset to the Supplier or the Supplier’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Supplier (or the Supplier’s nominee) shall be entitled 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 Supplier elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own Buyer basis.
(c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the Buyer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Supplier or the Supplier’s nominee, namely EC Credit Control Pty Limited as the Buyer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Supplier and/or EC Credit Control Pty Limited shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Buyer and/or the Guarantor in any land, realty or asset in favour of the Supplier 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 Supplier 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 Supplier’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
15.1 The Supplier may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods is delivered by giving written notice. The Supplier shall not be liable for any loss or damage whatever arising from such cancellation.
16. Privacy Act 1988
16.1 The Buyer and/or the Guarantor/s agree for the Supplier to obtain from a credit-reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Supplier.
16.2 The Buyer and/or the Guarantor/s agree that the Supplier 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/or Guarantor/s.
16.3 The Buyer consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
16.4 The Buyer agrees that Personal Data provided may be used and retained by the Supplier for the following purposes and for other purposes as shall be agreed between the Buyer and Supplier or required by law from time to time:
(a) provision of Services & the Goods;
(b) marketing of Services and or the Goods by the Supplier, its agents or distributors in relation to the Services and Goods;
(c) analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to provision of Services/Goods;
(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 Services and the Goods.
16.5 The Supplier 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.
17. Buyers Disclaimer
17.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Supplier and the Buyer acknowledges that he buys the Goods relying solely upon his own skill and judgement. and that the Supplier shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty shall be personal to the Buyer and shall not be transferable to any subsequent Buyer.
18. Lien & Stoppage in Transit
18.1 Where the Supplier has not received or been tendered the whole of the price, or the payment has been dishonoured, the Supplier shall have:
(a) a lien on the Goods;
(b) the right to retain them for the price while the Supplier 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 of resale,
(e) the foregoing right of disposal,
provided that the lien of the Supplier shall continue despite the commencement of proceedings or judgement for the price having been obtained.
19.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 All Services/Goods supplied by the Supplier are subject to the laws of Queensland and the Supplier takes no responsibility for changes in the law which affect the Services/Goods supplied.
19.3 The Supplier 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 Supplier of these terms and conditions.
19.4 In the event of any breach of this contract by the Service Provider the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Service Provider exceed the Price of the Services.
19.5 The Buyer shall not set off against the Price amounts due from the Supplier.
19.6 The Supplier may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
19.7 The Supplier reserves the right to review these terms and conditions at any time and from time to time. If, 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 Supplier notifies the Buyer of such change.
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