These terms and conditions of sale, as amended from time to time and made available at www.allfiximports.com.au (Conditions), apply to any supply of Goods by Allfix ACN 151 428 189 (Seller) to any person, firm, company or any other party whatsoever whose order for the purchase of Goods is accepted by the Seller (Purchaser). In these Conditions, Goods means all products supplied by the Seller to the Purchaser whether by means of sale, hire, rental or otherwise and whether the property of the Seller or distributed by the Seller as agents for another.
- These Conditions supersede any oral or implied conditions given during any sales presentation unless included in a written quotation.
- The Seller reserves the right to accept or refuse all or part of any order given on the basis of its quotation and in the event of the refusal of any order or any part of any order, no damages or expenses of any kind shall be payable by the Seller. If part of an order is supplied, these Conditions will apply to the Goods supplied.
- Once the Seller has accepted an order from the Purchaser, that order cannot be cancelled by the Purchaser.
Payment in full must be received before delivery, unless prior approval for a credit facility has been granted by the Seller to the Purchaser (Due Date). Where prior approval has been granted by the Seller, credit terms are strictly for payment in cleared funds, 30 days from the date of the invoice.
The Goods shall remain the property of the Seller until payment has been made in full and any cheques cleared.
If the Purchaser fails to make a payment by the Due Date, commits a material breach of these Conditions, becomes, or the Seller reasonably believes is likely to become, insolvent (as defined by the Corporations Act 2001 (Cth)), or suffers, or the Seller reasonably believes is likely to suffer, an event of bankruptcy the Seller may, without limiting any other right or claim it may have against the Purchaser, do any of the following:
- charge the Purchaser interest on any outstanding moneys owed by the Purchaser to the Seller, at the rate of 2.5% per month from the Due Date;
- refuse to accept further orders until payment of the outstanding balance, plus any applicable interest, is received;
- vary or withdraw any approved credit facility and/or terms of trade;
- cancel or suspend any unfilled orders;
- enter (at any time) any premises in which the Seller’s Goods are stored, to enable the Seller to inspect the Goods and reclaim possession of the Goods without liability for the tort of trespass, negligence or payment of any compensation to the Purchaser whatsoever;
- terminate any contracts between the Seller and the Purchaser and demand immediate payment of any moneys due and outstanding under those contracts; and
- institute any recovery process as the Seller in its absolute discretion deems appropriate, at the expense of the Purchaser.
5. Limitations of Liability
- To the fullest extent permitted by law, the Seller excludes all warranties, guarantees and conditions whether arising in contract, negligence or otherwise arising out of or in connection with the supply of Goods, and shall not be liable for any damages (direct, indirect, special or consequential) arising from the use of the Goods sold or for any special, incidental or consequential damages arising from delays however caused through non-delivery or through defects in material or workmanship or from any cause whatsoever and no claims of any kind, either as to the Goods delivered or for non-delivery of the Goods shall be greater in amount than the price of the Goods in respect of which a claim is made.
- To the extent that any warranty, guarantee or condition cannot be excluded, the Seller limits its liability for a breach of an express or implied term, condition, guarantee or warranty to one of the following at the Seller’s absolute discretion:
(i) the replacement of the Goods; or
(ii) the repair of the Goods; or
(iii) the cost of replacing the Goods; or
(iv) the cost of repairing the Goods.
- To the extent permitted by law:
(i) the Seller shall not be liable for or consider any claim unless notice thereof is reported in writing to the Seller within seven (7) days of delivery of the Goods to the Purchaser;
(ii) use or subsequent disposition by the Purchaser of any portion of Goods delivered at any time shall be deemed a waiver of all claims of the Purchaser in respect of such Goods; and
(iii) any clerical errors in computation, typing or otherwise of any catalogue, quotation, acceptance, offer, invoice, delivery docket, credit note or specifications given by the Seller shall be subject to correction at any time by the Seller.
- The Purchaser shall be responsible for providing any guard or protection necessary to comply with any safety or statutory requirements in connection with the installation or application of any Goods supplied by the Seller.
The Purchaser hereby indemnifies and holds the Seller harmless against any and all damages, losses, claims, liabilities, demands, charges, suits, penalties, costs and expenses (including legal costs) incurred or suffered by the Seller arising directly or indirectly as a result of, any breach of any provision of these Conditions, any injury or death to any person or any negligent act or omission or willful misconduct of the Purchaser.
7. Retention of Title and Personal Property
All Goods provided to the Purchaser from the Seller remain the property of the Seller, notwithstanding delivery to the Purchaser, until payment in full is received by the Seller.
The Purchaser acknowledges and agrees that by assenting to these Conditions, the Purchaser grants a security interest to the Seller in all Goods supplied by the Seller to the Purchaser and all other Goods that will be supplied in the future by the Seller to the Purchaser (or to its account) during the continuance of the relationship between the Seller and the Purchaser.
The Purchaser will do such acts and provide such information (which information the Purchaser warrants to be complete, accurate and up to date in all respects) as in the opinion of the Seller (acting in its absolute discretion) may be required or desirable to enable the Seller to perfect under the Personal Property Securities Act 2009 (Cth) (as amended or replaced from time to time) (PPSA) the security interest created.
The Purchaser waives any right to receive a copy of a verification statement under the PPSA and agrees as to any contract between the Seller and the Purchaser for the supply of Goods governed by these Conditions, to the extent permitted by law, to contract out of section 115 of the PPSA, except section 115(g) to the intent that the Seller will preserve its right to seize collateral, and the Purchaser agrees to waive its rights referred to in section 115(1).
The Purchaser agrees to pay the costs, charges and expenses of and incidental to the need for, or desirability of registration of, a financing statement or financing change statement or any action taken by the Seller to comply with the PPSA or to protect its position under the PPSA. The Purchaser agrees to pay any costs incurred by the Seller, including, but not limited to, legal costs on a solicitor-own client basis, arising from any disputes or negotiations with third parties claiming an interest in any Goods supplied by the Seller.
8. Risk and Property
The risk in the Goods sold shall pass to the Purchaser at the point of delivery to the Purchaser, its carrier or agent. This also applies to any partial order of Goods.
The Seller reserves the right to alter prices without notice.
At the Seller’s discretion, where a particular item is temporarily out of stock, Goods available will be dispatched immediately, with the balance following as soon as possible. Unless otherwise agreed the Seller will ship by the most economical way. Delivery charges will be made at the Seller’s discretion.
11. Returned Goods
To the extent permitted by law, prior authorisation must be obtained in order to authorise return of the Goods and the Seller to nominate method of transport. Seller will not accept return of non-stock items or broken packs. Seller may deduct transport, handling costs and restocking charges of 15% of the price of the Goods from the credit due to the Purchaser.
13. Force Majeure
Neither the Seller or the Purchaser will be liable for any failure or delay in the performance of its obligations under these Conditions if that failure or delay is due to force majeure. However, this clause does not apply to any obligation on the Purchaser to pay money for Goods provided prior to such force majeure event.
14. Event of Inconsistency
Unless expressly stated otherwise in documentation supplied by the Seller to the Purchaser, in the event of any inconsistency between the provisions of these Conditions and the provisions of any other supplied documentation by the Seller to the Purchaser, these Conditions shall prevail to the extent of that inconsistency.
Notwithstanding the above, in the event of an executed and current contract between the Purchaser and the Seller, should there be any inconsistency between the provisions of these Conditions and the provisions of said executed and current contract, the executed and current contract shall prevail to the extent of that inconsistency.
In the event the Purchaser provides a purchase order, for purchase of Goods from the Seller, any terms of such purchase order that are in addition to or in contradiction of these Conditions shall be inapplicable and unenforceable, unless expressly agreed otherwise in writing by the Seller.
The Purchaser will not, without the prior written consent of the Seller, assign or attempt to assign its rights or obligations under these Conditions.
16. Governing Law
These Conditions will be governed by and interpreted in accordance with the laws for the time being in force in Victoria and each party submits to the non-exclusive jurisdiction of the Courts of or exercising jurisdiction of that State and waives any right it might have to claim that those Courts are an inconvenient forum.
The failure of the Seller at any time to insist on performance by the Purchaser of any obligation under these Conditions is not a waiver of the Seller’s right to insist on the performance of, or to claim damages for breach of, that obligation unless the Seller acknowledges in writing that the claim damages for breach of, that obligation unless the Seller acknowledges in writing that the failure is a waiver. Any delay by the Seller in exercising its right is not a waiver of that right or any other right including, but not limited to, the right to insist on the performance of that or any other obligation at any other time.
Any provision of these Conditions which is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability without invalidating the remaining provisions of these Conditions.
Either party may terminate these Conditions at any time by giving the other party not less than one (1) months’ written notice.
The Seller may, by written notice to the Purchaser, terminate these Conditions immediately if the Purchaser:
- commits a breach of the provisions of these Conditions and fails to remedy, within fourteen (14) days of receiving a written notice to do so; or
- becomes subject to any form of insolvency administration or winding up.
On termination of these Conditions the Purchaser agrees to make payment to the Seller for all services performed and Goods provided up to the date of termination.
For the purpose of these Conditions, each of “Taxable Supply”, “GST”, “GST Rate”, “Tax Invoice”, “Adjustment Note” and “GST Law” have the meanings given to those terms in section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Unless stated otherwise, if a Taxable Supply is made by the Seller under these Conditions, the Seller may, in addition to the amount payable under these Conditions, recover from the Purchaser an additional amount on account of GST, calculated by multiplying the amount payable by the GST Rate.
Where a Taxable Supply is made under these Conditions, the Seller shall issue the Purchaser with a Tax Invoice or an Adjustment Note in accordance with the GST Law.
The Purchaser and its employees or agents shall not disclose or permit to be disclosed to any third party any confidential information of the Seller, except as permitted by the Seller in writing or as permitted by law.
The Purchaser shall not, without the prior written approval of the Seller, disclose to any third party (other than their legal advisers, or otherwise as required by law) these Conditions.
21. Acceptance of Conditions
These terms and conditions will be deemed to have been accepted if, and at any such time, the
Purchaser has any transaction with the Seller. Acceptance of these terms and conditions gives the Seller or their agents the right to enter the premises and recover Goods without written notice. In the event that the Purchaser has located or allowed the Goods to be located at premises other than the premises of the Purchaser, the Purchaser undertakes to arrange for the return of the Goods to the Seller, should the full payment not have been met in accordance with the accepted terms.