TERMS AND CONDITIONS
1 Definition
In these Conditions:
Buyer means the other party or parties to this contract; and
Seller means Enviro Pak Pty Ltd (ABN 34 11 6 567 018).
2 General
(a) These terms and conditions contain all the terms and conditions governing the contract between the Seller and the Buyer, despite any conditions to a contrary effect in any of the Buyer’s order forms or other documents.
These terms and conditions supersede all prior arrangements, written or oral. No modification to these terms and conditions will bind the Seller unless agreed to in writing by the Seller. (b) Orders for goods or services shall not be binding on the Seller until accepted in writing by the Seller. The Seller reserves the right to accept orders in whole or in part. Any part order not accepted in the manner prescribed shall be regarded as having been refused. (c) Any quotation given by the Seller does not constitute a contractual offer. All quotations lapse thirty days after issue but the Seller may vary or withdraw a quotation at any time.
3 Descriptions
Any description of the goods by the Seller has been given by way of identification only and the use of such description does not constitute a sale by description under this contract.
4 Prices
(a) The prices charged by the Seller and payable by the Buyer for the goods shall be those prices quoted to the Buyer by the Seller form time to time. Prices may be varied by the Seller at any time by notice in writing to the
Buyer
(b) Prices are based on the current costs of freight, carriage, insurance, duty, labour and exchange rates in force at the date of the quotation, and any increase or variation will be added to the price payable by the Buyer.
(c) All prices quoted are exclusive of goods and services tax (“GST"), sales tax, customs duty, excise duty and all other governmental imposts becoming payable because of the sale of the goods and all such taxes, duties and other imposts shall be to the Buyer’s account. The Buyer will pay to Seller an amount equal to any such taxes (including GST), duties and other imposts paid or payable by the Seller in connection with the supply of goods at the same time and in the same manner as the price.
5 Terms of Payment
(a) If the Buyer has an approved credit account with the Seller, the purchase price for the goods must be paid for in cash within seven days from the end of the month of the purchase, unless otherwise specified.
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Notwithstanding that, the seller has the right in all circumstances to require payment of the goods in cash in advance of any delivery, or upon delivery, to the Buyer. (b) After 14 days from the specified date for payment, all outstanding amounts due from the Buyer to the Seller attract interest from the specified date at the rate of 15% per annum. (c) If after 28 days from the specified date for payment the Buyer has not paid the purchase price for the goods, the Seller is entitled to:
(i) suspend all and any future deliveries to the Buyer;
(ii) rescind and terminate this or any other contract it may have with the Buyer; or (iii) demand immediate full payment (including interest) under any currently existing contract between the Seller and the Buyer, failing which the Seller may, in addition to any other course of action then available to it, elect
to terminate or rescind all or any existing contracts with the Buyer immediately by notice in writing to the Buyer.
(d) All losses, expenses and costs including legal fees on an indemnity basis incurred or suffered by the Seller, consequent upon the Buyer’s failure to pay on the agreed date, are recoverable from the Buyer by the Seller as liquidated damages.
6 Delivery
(a) Subject to the terms of this clause 6, the Seller will deliver the goods F.I.S. to the Buyer, the Buyer’s agent or as otherwise agreed.
(b) All delivery dates quoted are estimated only and the Seller is not liable to the Buyer for late delivery or for any claims in any way arising from or relating to delay in or failure of delivery. The Buyer shall not be relieved of any obligation to accept or pay for the goods by reason of any delay in delivery or dispatch. The Seller does not accept orders under penalty for late delivery.
(c) If the Buyer or carrier refuse or delay delivery or acceptance, the goods may be stored as directed by the Seller and the Buyer will bear the risk of loss and cost of storage. If delivery is postponed for more than three months, the Seller may vary the price of the goods to reflect the Seller’s current price for the goods.
(d) The Seller is not responsible for non-delivery or delay in delivery of any goods caused directly or indirectly by force majeure, including but not limited to war, threat of war or warlike conditions, hostilities, civil
commotion, riots, fire, flood, strikes, lock outs, accidental breakdown or mechanical failure of plant, machinery or equipment, delays in transportation, the Buyer’s instructions or lack thereof, default on the part of the Seller’s manufacturer or supplier, acts of Government or
any other cause beyond the Seller’s reasonable control, notwithstanding that any such cause may be operative at the time of entering the contract.
(e) If by reason of any of the causes referred to in clause 6(d) the availability from any of the Seller’s sources of supply is delayed, hindered, interfered with, curtailed or prevented, the Seller shall be at liberty to withhold, reduce or suspend supplies hereunder to such extent as the Seller in its absolute discretion may think fit and the Seller shall not be bound to make good shortages resulting from any such cause.
(f) The Seller reserves the right to deliver in instalments and all such instalments, when separately invoiced, must be paid for without regard to the delivery of subsequent instalments. Any failure by the Seller to make any
one or more deliveries is not a repudiation of the contract by the Seller with regard to that or any other deliveries.
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7 Technical Advice
The Seller assumes no liability whatsoever for any technical advice, recommendation, information or assistance given, or the results obtained therefrom in relation to the goods and all such advice is accepted at the Buyer’s sole risk.
8 Warranty
(a) Nothing in these terms and conditions is intended to exclude, restrict or modify any statutory obligation of the Seller if that cannot lawfully be affected.
(b) Except where prohibited by legislation:
(i) The Seller warrants to the Buyer that at the time of delivery, the goods will be of merchantable quality. The Seller makes no warranty of any kind in relation to fitness for purpose or any other matter with respect to the goods whether used alone or in conjunction with any other substance. The Buyer will be responsible for immediate examination of the goods after delivery. The Seller will not be liable for any claim to which it would otherwise be liable in respect of the goods unless written notice of the defect is provided to the Seller within fourteen days of delivery;
(ii) This clause 8(b) sets out the full extent of the Seller’s liability to the Buyer in connection with the goods supplied. The Seller will under no circumstances be liable in any way whatsoever to the Buyer for any form of loss, damage or expense sustained or incurred by the Buyer or any other party in connection with the goods supplied;
(iii) All terms, conditions, warranties, representations and agreements not expressly contained in these terms and conditions are not binding on the Seller and are expressly excluded. None of the Seller’s employees or agents
is authorized to make any warranty or representation on behalf of the Seller. Statements in any specifications, promotional material or elsewhere are descriptive only, and are not warranties, conditions or representations; and
(iv) If the Seller is liable for breach of a condition or warranty whether express or implied by legislation, the Seller’s liability is limited to one of the following as determined by the Seller: (A) the replacement of the goods or the supply of equivalent goods;
(B) the payment of the cost of replacing the goods or of acquiring equivalent goods; (C) the payment of the cost of having the goods repaired; or
(D) the repair of the goods.
9 Intellectual Property
(a) The Seller makes no representation or warranty of any kind that the goods supplied hereunder or the use of such goods or articles made therefrom either alone or in conjunction with other substances will not infringe the intellectual property rights of any person. The Buyer will forthwith notify the Seller of any claim or suit involving the Buyer in which infringement is alleged and if the Seller considers itself, in its absolute discretion, to be affected, it shall be entitled completely to control the defence or compromise of any such allegation or infringement.
(b) Sale of the goods does not convey any license under any patent or trademark owned by the Seller.
10 Title & Risk
(a) The risk in the goods supplied to the Buyer passes to the Buyer upon delivery of those goods to the Buyer or the Buyer’s agent.
(b) Until full payment of the purchase price for the goods has been made, the Buyer acknowledges and agrees that:
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(i) Ownership and property in the goods supplied by the Seller to the Buyer pursuant to this contract shall be and remain the property of the Seller. In the event that the Buyer sells such goods prior to payment thereof or if they shall become constituents of other goods, then the proceeds of sale thereof shall be the property of the Seller. Until such time as property passes
in accordance with this clause 10, the Buyer must (unless otherwise agreed in writing by the Seller) store the goods at the Buyer’s expense in a manner that clearly shows that they are the property of the Seller;
(ii) the goods supplied are held by the Buyer in a fiduciary capacity as bailee; (iii) the Buyer irrevocably gives the Seller, its agents and servants, leave and an irrevocable licence without the necessity of giving any notice to the Buyer to enter into any premises occupied by the Buyer at any time (forcibly if necessary), to inspect, search for, conduct stock takes in relation to and remove any goods supplied hereunder; and (iv) the Buyer shall have the power to resell or otherwise deal with the goods in the ordinary course of business on the condition that the Buyer shall upon demand by the Seller, deliver any proceeds of resale or other dealing referable to the goods to the Seller. The proceeds shall be received by the Buyer on trust for the Seller and shall be held on a fiduciary basis by the Buyer in a separate identifiable bank account.
11 Returns
Sales are on a firm basis and no returns will be accepted unless the Seller consents in writing.
12 Rescission
Should the Buyer be served with any winding up, administration or receivership proceedings or should it enter into any voluntary winding up, administration or receivership, or make any compromise with creditors, under any law, the Seller may, in addition to any other course of action available to it, elect to terminate or rescind this contract immediately, by notice in
writing to the Buyer, at the Buyer’s last known address.
13 Indemnity
The Buyer will immediately notify the Seller in writing of any accident, injury to person, damage to property, loss or other occurrence involving the goods supplied hereunder. If the Buyer fails to do so, the Buyer will defend and indemnify the Seller against all claims against the Seller arising from the occurrence.
14 Assignment
The Buyer shall not assign its rights or obligations, or delegate its performance hereunder without the consent in writing of the Seller. The Seller may in its discretion and without notification to the Buyer sub-contract the whole or any part of the production of the goods agreed to be sold or services to be rendered hereunder.
15 Waiver
The failure of the Seller to exercise or the delay in exercising any right, power or privilege available to the Seller hereunder shall not operate as a waiver thereof or preclude any other or further exercise thereof or the exercise by the Seller of any other right power or privilege hereunder.
16 Severance
Should any part of these conditions be held void or unlawful, these terms and conditions are to be read and enforced as if the void or unlawful provision(s) had been deleted.
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17 Governing law
This agreement shall be governed by and construed in accordance with the laws of New South Wales and the parties agree to submit to the non-exclusive jurisdiction of the Courts of that State and all Courts hearing appeals therefrom.
18 Miscellaneous Conditions
(a) Should it be necessary to assign the account balance to a collection agency or attorney for legal action, all subsequent collection charges and legal fees shall be paid by the applicant. Enviro Pak has the right to recoupment with respect to all purchases made under this contract. (b) All credit extended shall be deemed subject to the terms and conditions and further gives authorisation for information to be given to Enviro Pak regarding bank account balances and credit references.
