Oliveri Solutions Pty Ltd ACN 007 551 886 - TERMS AND CONDITIONS OF SALE
By submitting a credit application and/or ordering goods (goods) from Oliveri Solutions Pty Ltd (ACN 007 551 886) (Oliveri), the Customer agrees that the following terms and conditions of sale (Conditions) will apply to the supply.
1. Definitions and Interpretation
In these Conditions and any other associated or collateral documents (unless a contrary intention is stated):
Anti-Corruption Law means any law prohibiting or relating to bribery, corruption, kickbacks, secret commissions or money laundering, including without limitation, the Foreign Corrupt Practices Act 1977 (US), the Bribery Act 2010 (UK), the Criminal Code Act 1995 (Cth), the Crimes Act 1961 (NZ), the Secret Commissions Act 1910 (NZ), and any anti-corruption regulations and provisions applicable in the European Union or in any other locations in which any Fletcher Group Member carries on business;
Australian Consumer Law means the Australian Consumer Law in the Competition and Consumer Act 2010 (Cth);
Consumermeans a consumer as that term is defined in the Australian Consumer Law;
Consumer Contract means a contract for the supply of goods to an individual whose acquisition of the goods is wholly or predominantly for personal, domestic or household use or consumption. However, if the relevant parts of the definition of ‘Consumer Contract’ under the Australian Consumer Law are amended at any time, this definition is also amended accordingly;
Contract has the meaning given to that term in clause 3(a);
Customer means a person whose order for the purchase of goods is accepted by the Supplier;
Fletcher Group means Fletcher Building Limited (ARBN 096 046 936) and its related bodies corporate (as that term is defined in the Corporations Act 2001 (Cth));
Fletcher Group Member means any member of the Fletcher Group;
Force Majeure Event means any event outside a party’s reasonable control including acts of God, declared or undeclared war, act of terrorism, fire, flood, storm, earthquake, hurricane, cyclone, riot, power failure, industrial action, pandemic, epidemic, defaults of manufacturers or suppliers, the inability to obtain equipment, supplies or other facilities that are not caused by a failure to pay, labour disputes, theft, epidemics, pandemics or disease, government actions or restrictions, any criminal act or other similar events beyond a party’s control that may prevent or delay a party from performing their obligations under any Contract, provided that lack of funds for whatsoever reason is not considered a Force Majeure Event;
Guarantor means each of the persons who execute this document as guarantor;
Interest Rate means the rate of 8% above the cash rate last published by the Reserve Bank of Australia (as at the due date);
Law means any Commonwealth or Australian state or territory legislation regulations and the general law and includes in particular the Competition and Consumer Act 2010 (Cth) and regulations as amended from time to time and the PPSA and regulations as amended from time to time and in respect of any goods supplied into New Zealand means NZ legislation, regulations and the general law;
New Zealand Consumer Law means the Fair Trading Act 1986 and the Consumer Guarantees Act 1993;
Personal Information has the meaning given in the Privacy Act 1988 (Cth);
PPSA means, in respect of Australia, the Personal Property Securities Act 2009 (Cth); and in respect of New Zealand, the Personal Property Securities Act 1999;
Purchase Monies Securities Interest or PMSI, in respect of Australia, has the meaning given in section 14 of the PPSA as amended from time to time; and in respect of New Zealand the meaning given in section 16 of the PPSA;
Small Business Contract has the meaning given to that term in the Australian Consumer Law;
Supplier means Oliveri and any member of the Fletcher Group that is named as the party making or accepting an order.
(a) The headings used do not form part of the Conditions and are for convenience only.
(b) Where the context admits or requires words importing the singular number will include the plural number, those denoting a given gender will include all other genders and those denoting natural persons will include corporations.
(c)“Including" is not a term of limitation.
3. Contracts and Quotes
(a) The contract between the Customer and the Supplier is constituted by: (i) these Conditions; (ii) the terms of any credit agreement between the Customer and the Supplier (“Credit Terms”); and (iii) the extent to which the Supplier accepts an order in accordance with clause 3(b) (each a “Contract”). The Conditions, the Credit Terms and the extent to which the Supplier accepts the order govern all contracts for the supply of goods by the Supplier to the Customer and constitute the entire agreement in connection with the supply of goods between the Supplier and the Customer. To the extent of any inconsistency, the order or precedence set out in clauses 3(a)(i) to (iii) applies. All prior representations, trade custom or previous dealings between the Supplier and the Customer are excluded and are not applicable in the interpretation of the Contract. No modification or variation to the Conditions or the Credit Terms, any additional terms or conditions or any terms inconsistent with the Conditions or the Credit Terms provided by the Customer (whether put forward in the order, the Customer’s specification or otherwise) will bind the Supplier, unless expressly and specifically agreed to in writing by the Supplier. The Conditions and the Credit Terms supersede any terms and conditions which have previously governed a contract for the sale of goods by the Supplier to the Customer. The Conditions and Credit Terms will prevail to the extent of any inconsistency between them and any quotation, order or other documents from the Customer. The Conditions and Credit Terms bind the Customer even if the Supplier or the Customer does not sign them promptly or at all.
(b) A quotation will not constitute an offer to sell goods to the Customer. The prices in a quotation shall be valid for a period of 30 days from the date of issue unless otherwise agreed to in writing by the Supplier. No contract for the supply of goods will exist between the Supplier and the Customer until a Customer's order for goods has been accepted by the Supplier (such acceptance of the Customer's orders may be made and communicated by the Supplier in writing or by overt act of acceptance). The Customer will be under no obligation to place an order with the Supplier. The Supplier may accept or refuse any order for goods in its absolute discretion, on terms required by the Supplier (and the Customer may reject those terms in writing within five days of receipt otherwise they are deemed accepted by the Customer) and may make its acceptance of an order conditional upon it receiving a satisfactory credit assessment of the Customer.
(c) Subject to clause 4, the Supplier may vary the Conditions or Credit Terms by notice in writing to the Customer. If the Contract is a Consumer Contract or a Small Business Contract, then the Customer may consider the variation and, if not acceptable, may elect not to proceed with the purchase of the goods ordered before the date of the variation but which are intended to be subject to the variation. If the Contract is not a Consumer Contract or a Small Business Contract, the Customer agrees that goods delivered and/or ordered after the date of the notice of the variation will be subject to the variation and acceptance of the goods or the placing of the order will be deemed to be an acceptance of such varied terms and conditions.
(d) Should there be any variation to any of the information supplied by the Customer to the Supplier in any credit application or there has been a change of control of the Customer or in the structure or nature of the Customer's business (such as a conversion to or from a company or trust) the Customer will notify the Supplier in writing within 28 days of the variation occurring.
(e) The Conditions and all obligations under any Contract will be binding on the Customer's personal representatives, successors and permitted assigns and will be for the benefit of the Supplier's successors and assigns.
(a) Notwithstanding any prior acknowledgment by the Supplier of the price of goods, except where expressly agreed otherwise, the prices specified for goods may at the Supplier's option be subject to alteration to reflect the Supplier’s prices and charges in effect at the time of delivery or performance. Any such price change will only be applicable to Customer orders not yet accepted by the Supplier, provided the Customer is given 30 days prior notice of the price change. The Customer may consider any variation referred to in this clause 4(a) and, if not acceptable, may elect not to proceed with the purchase of the goods which are intended to be subject to the variation.
(b) The Customer must not assert any right of set off against the Supplier and will pay all amounts owing to the Supplier without deduction.
(c) Where credit is extended to the Customer, all account invoices and statements will be submitted by the Supplier electronically ("E-invoice") to the Customer via the Customer's nominated email address.
(d) The Supplier will not, generally, send a paper copy of the invoice or statement unless the Customer requests it. The Customer can obtain a paper copy of the invoice or statement by sending a written request to the Supplier. The Customer acknowledges that the Supplier will charge a $5 service fee for the delivery of paper copies of invoices or statements ("Service Fee") and agrees to pay such fee on demand. The Supplier may vary the Service Fee to reflect changes in administration costs from time to time by written notice to the Customer.
(e) Where the Supplier submits an E-invoice to the Customer's nominated email address, the E-invoice will be deemed to have been received by the Customer on the date it was sent unless the Supplier receives a notification that the email did not reach its intended recipient and the records of the Supplier will be conclusive in this regard.
(f) It is the Customer's responsibility to ensure that the contact information provided to the Supplier is current and accurate including the Customer's nominated email address, which the Supplier will use to submit the E-invoice. The Customer agrees to promptly notify the Supplier of any changes to the Customer's contact information.
(g) Unless otherwise agreed to by the Supplier, the only accepted means of paying accounts will be by cash, bank cheque, BPAY, Visa, Mastercard, American Express, COD or electronic funds transfer.
(h) A payment surcharge is payable by the Customer if accounts are paid using Visa, Mastercard or American Express credit accounts or accounts using contactless payments (ie: PayWave, PayPass). The payment surcharge is a percentage of the amount being paid and varies depending on the payment method used. The current surcharge rate will be notified by the Supplier in the Monthly Payment Statement, E-Invoice or otherwise.
(i) Subject to clause 4(a), unless otherwise expressly agreed in writing, the amount payable for goods will be the price on the Supplier’s invoice. The price is exclusive of any freight charges, payment surcharges, customs duty and GST or similar taxes, which the Customer will pay in addition to the price at the same time and in the same manner as the price. The payment surcharge is payable at the same time as the account to which it relates is due.
(j) Payments received by the Supplier will be applied first in payment of interest and any costs of and incidental to debt recovery and any amounts payable pursuant to clause 4(i) and then in reduction of the principal.
(k) Payments received without remittance advice will be applied first to the oldest balance owing by the Customer.
(l) The Supplier reserves the right to cancel all trade discounts or rebates in the event that the Customer fails to comply with these Conditions.
5. Account Terms
(a) Until the Supplier confirms that a credit facility has been granted to the Customer, all goods must be paid for on a cash on delivery or performance basis. If a credit facility has been granted, unless otherwise agreed in writing by the Supplier, the Supplier will issue a tax invoice for the goods and the Customer will pay for all goods delivered or collected in any calendar month on or before the last trading day in the following month.
(b) Credit extended to the Customer for all goods sold will be made in accordance with the Credit Terms. In all other respects, the Conditions will apply.
(c) If the Customer does not pay the Supplier by the due date, the Customer will pay interest on monies due, charged on a daily basis at the Interest Rate from the due date for payment until the actual date of payment. If the Customer has an account with the Supplier, the Supplier may debit the Customer's account monthly or at such other times it chooses for such interest and it will be payable together with the overdue amount.
(d) If the Customer is in default of any payment, the Customer will pay any legal costs (on a full indemnity basis), stamp duties, any bank charges or merchant fees or like charges levied on the Supplier by any banker or other credit provider whose banking or credit card facilities are utilised by the Customer for paying the Supplier any amounts on any account and any other expenses payable of and incidental to the performance or enforcement of or any litigation on the Contract or any credit application or any security documents signed by the Customer or any Guarantor together with any other collection costs and dishonoured cheque fees.
(e) Despite any other clause in the Contract, the Supplier may without notice alter the Customer's credit limit or withdraw credit completely for any reason at its discretion. The Supplier will notify the Customer of any alteration in the credit limit by notice to that effect in the following monthly account statement. Any credit approval limit noted in this form, any monthly statement or otherwise is for the Supplier's convenience only and does not reflect what may actually be the credit limit of the account at any one time.
(f) The Customer is liable for all purchases made under its account number and/or account name. It is not the responsibility of the Supplier to confirm authority for the purposes of supplying goods to the Customer, its agent(s) or those who the Supplier deems to be its agents. It is the sole responsibility of the Customer to ensure there is no unauthorised use of their account number or name.
(g) If the Customer is in default of a payment, the Supplier may in its absolute discretion charge a late payment administration fee ("Late Payment Fee"). The Late Payment Fee will be $10 per month or such lesser amount as determined by the Supplier. The Supplier may debit the Late Payment Fee to the Customer's account annually in advance or at such other times as the Supplier determines.
(h) If the Contract is not a Consumer Contract or a Small Business Contract, a statement in writing signed by the Supplier’s Credit Manager stating the monies payable by the Customer to the Supplier shall be prima facie evidence of the amounts so payable.
6. Personal Property Securities Act
(a) The Customer agrees that the Conditions may create a PMSI in the goods (and their proceeds) supplied presently and in the future by the Supplier to the Customer and a security interest in the personal property of the Customer.
(b) The Customer agrees to do all things necessary and execute all documents reasonably required to register the security interests granted by the Customer under the Conditions and to ensure that the Supplier acquires perfected security interests under the PPSA.
(c) The Customer will, upon demand, pay all of the Supplier's expenses and legal costs (on a solicitor/agent/client basis) in relation to or in connection with the registration of the Supplier's security interests and all other costs associated with protection and enforcement of the Supplier's security interests created by the Conditions or by undertaking an audit under the provisions of the PPSA which the Supplier considers reasonably necessary in order to protect its legitimate interests under the Contract, or the repossession of the goods the subject of the Conditions or the exercise, enforcement or preservation of any right or interest under the Conditions or any contract that the Supplier has with the Customer.
(d) This PMSI does not lose its priority as a result of the renewal, refinance, consolidation or restructure of the subject matter of the Conditions and any purchase money obligations.
(e) The Customer waives its rights under the following provisions of the PPSA, to the extent that it is permitted by Law to:
(i) receive a notice of intention of removal of an accession (Australia: s95); (NZ:s109, 125, 129, 131:
(ii) receive a notice that the Supplier has determined to enforce its security interest in accordance with land law (Australia: s118); (NZ: s109);
(iii) receive a notice of enforcement action against liquid assets (Australia: s121(4)); (NZ: s109);
(iv) receive a notice of disposal of goods by the Supplier purchasing the goods (Australia: s129); (NZ: s109, 114);
(v) receive a notice to dispose of the goods (Australia: s130); (NZ: s109, 114);
(vi) receive a statement of account following disposal of the goods (Australia: s132(2)); (NZ: s116);
(vii) receive a statement of account if no disposal of the goods, six monthly (Australia: s132(4)); (NZ: s116);
(viii) receive notice of any proposal by the Supplier to retain the goods (Australia: s135(2)); (NZ equivalent: s120, 121);
(ix) object to any proposal by the Supplier to either retain and dispose of the goods (Australia: s137(2)); (NZ equivalent: s120, 121);
(x) redeem the goods (Australia: s142); (NZ: s132, 133);
(xi) reinstate the security agreement (Australia: s143); (NZ: s133); and
(xii) receive a notice of any verification statement (Australia: s157(1) and 157(3)); (NZ s145);
(f) If the Customer goes into bankruptcy or is wound up, they agree and provide authority for the Supplier to enforce this security agreement against the third party for payment or collection of the goods in accordance with section 20 of the PPSA (NZ equivalent s109).
(g) To the extent permitted by the PPSA, the Conditions exclude any provisions of the PPSA which may be excluded in the Supplier's discretion and which would otherwise confer rights on the Customer.
(h) The Customer further agrees that where the Supplier has rights in addition to those under Part 4 of the PPSA (NZ equivalent Part 9), those rights will continue to apply.
(i) The Customer's right to possession of goods still owned by the Supplier under the Conditions will cease if:
(i) where the Customer is an individual, the Customer commits an act of bankruptcy;
(ii) where the Customer is a company, circumstances arise where a receiver, manager, administrator or controller becomes entitled to take possession of any of the Customer’s assets, any proceedings are instituted for winding up of the Customer or the Customer enters into a Deed of Company Arrangement;
(iii) the Customer ceases or threatens to cease conducting business in the normal manner or applies for deregistration or receives a deregistration notice;
(iv) any cheque the Customer provides to the Supplier or any Fletcher Group Member is dishonoured for payment;
(v) the Customer fails to comply with any demand for payment issued by the Supplier or any Fletcher Group Member for an amount which is overdue under the Contract; or
(vi) the Customer materially breaches any of the Conditions and/or any other agreement between the Supplier or any other Fletcher Group Member and the Customer.
(j) The Customer expressly and irrevocably agrees that, until such time as title in the goods passes to the Customer, if an event set out in clause 6(i) occurs, the Supplier may require the Customer to return the goods to it on demand and is entitled to enter any premises where the goods supplied by the Supplier are located to repossess, remove and sell such goods. The Customer (its successors and assigns, including any external manager or administrator) will not object to the Supplier, or its agents, entering any premises for the purpose of this clause and agrees to indemnify and keep the Supplier indemnified in respect of any claims, actions and costs that may arise against the Supplier in relation to the removal, repossession and sale of the goods pursuant to the Conditions including any claims brought by third parties.
(k) The Customer agrees that repossession and retention of the goods pursuant to the PPSA will only satisfy so much of the monies which may become payable to the Supplier by the Customer as is equivalent to the Supplier's estimation of the market value of the goods as it is at the date of repossession and the repossession and retention will immediately extinguish any rights for interest the Supplier has on the value of the goods recovered.
(l) Until ownership of the goods passes, the Customer must not give the Supplier a written demand or allow any other person to give the Supplier a written demand requiring the Supplier to register a financing change statement under the PPSA or enter into or allow any other person to enter into the personal property securities register a financing change statement under the PPSA.
(m) The Customer agrees not to change the Customer name or undertake any changes to any documents that the Supplier has registered, requires to be registered or are capable of being registered without the prior written consent of the Supplier.
(a) there is any default or failure by the Customer in making a payment to the Supplier and the Customer fails to make such payment within a further 5 days of the date for payment; or
(b) the Customer fails to take delivery of the goods; or
(c) an administrator, liquidator or provisional liquidator or external manager is appointed in respect of the Customer; or
(d) a receiver, receiver and manager, administrator or controller is appointed in respect of any assets or group of assets of the Customer; or
(e) the Customer goes into bankruptcy or is wound up; or
(f) the Customer becomes, admits in writing that it is, or is declared by a court to be unable to pay its debts as and when they fall due; or
(g) subject to clause 7(a), there is a material breach by the Customer of the Contract or any other agreement between the Customer and the Supplier or any other Fletcher Group Member; or
(h) contractual performance by either the Supplier or the Customer is delayed or prevented due to any Force Majeure Event,
(i) all monies payable by the Customer to the Supplier may, at the Supplier's election, become immediately due and payable notwithstanding the due date for payment will not have expired; and
(j) the Supplier and any Fletcher Group Member may, without prejudice to any other rights it may have, do any or all of the following:
(i) suspend or withdraw any credit facilities which may have been extended to the Customer;
(ii) immediately terminate or suspend the whole or any outstanding part of any Contract;
(iii) withhold any further delivery of goods;
(iv) in respect of goods already delivered, and which title has not passed to the Customer, require the Customer to return the goods to it on demand or enter onto the Customer's premises to recover and resell the goods for its own benefit;
(v) recover from the Customer the cost incurred by the Supplier for materials or goods acquired for the purpose of future deliveries of goods which the Supplier will not otherwise be able to recover from refunds or future sales to other customers;
(vi) exercise such rights as are afforded to the Supplier under the PPSA; and
(vii) register a default with any credit reference facility.
If the Contract is a Consumer Contract or Small Business Contract and either:
(h) an administrator, liquidator, provisional liquidator or external manager is appointed in respect of the Supplier;
(i) a receiver, receiver and manager, administrator or controller is appointed in respect of any assets or group of assets of the Supplier;
(j) contractual performance by the Supplier is prevented due to any Force Majeure Event; or
(k) the Supplier commits a breach of a material term of the Contract which is not rectified within 5 days of such breach,
the Customer may immediately terminate or suspend the whole or any outstanding part of any Contract.
(a) Goods will be delivered, or deemed to be delivered, when they are delivered to the delivery place nominated by the Customer. If no such address is nominated, then delivery will be deemed to occur at the time when the goods are ready for collection at the Supplier’s premises.
(b) The Customer will pay to the Supplier packing, crating and delivery charges in accordance with the Supplier's current rates as at the date of dispatch. If there is no current rate, then a reasonable delivery charge will be paid by the Customer.
(c) The Supplier reserves the right to charge the Customer a reasonable fee for storage if delivery instructions are not provided by the Customer within 14 days of a request by the Supplier for such information.
(d) The Customer authorises the Supplier to deliver goods to the place nominated by the Customer and to leave the goods at such place whether or not any person is present to accept delivery. Subject to the other terms of the Contract, the Supplier will not be liable on any basis whatsoever for loss suffered by the Customer after delivery to the nominated delivery place.
(e) The Supplier will not be obliged to obtain a signed receipt or other acknowledgment from any person at the nominated place for delivery but if a signed receipt or other acknowledgment is obtained from someone believed by the Supplier to be authorised by the Customer to sign or otherwise take delivery, then such signed receipt or other acknowledgement will be conclusive evidence of the Customer's acceptance of the goods delivered.
(f) Any times quoted for delivery are estimates only and the Supplier will not be liable to the Customer for any failure to deliver or for delay in delivery of goods occasioned by any cause whatsoever whether or not beyond the control of the Supplier provided such goods are delivered within a reasonable time.
(g) Provided delivery is made within a reasonable time, the Customer will not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery or performance.
(h) The Supplier reserves the right to deliver goods by instalments and each instalment will be deemed to be sold under a separate Contract. Subject to clause 8(g), failure to deliver any instalment, or deliver any instalment on time, will not entitle the Customer to repudiate the Contract in whole or in part.
(i) The Supplier will deliver goods to a ground floor location only at a nominated delivery place that is safely accessible from a location where the delivery vehicle can park (without incurring a parking charge or otherwise). This includes smooth, stable ground that can be safely traversed with a trolley or walked with an unobstructed view. Failure to nominate such a delivery place may result in delivery delays, return of the goods to the Supplier’s premises (at the Customer’s cost), the Supplier declining delivery and requiring Customer pick up from the Supplier’s premises or additional delivery charges.
9. Property and Risk
(a) Risk in the goods ordered by the Customer will pass to the Customer as soon as they are collected from the Supplier's premises, or delivered by the Supplier to the Customer’s nominated delivery location or to the Customer’s agent.
(b) Property in and title to the goods will not pass to the Customer until those goods and all other amounts owed to the Supplier by the Customer under the Contract have been paid for in full and until then:
(i) the Customer will hold the goods as fiduciary and bailee for the Supplier;
(ii) the goods must be stored separately and in a manner enabling them to be identified as goods of the Supplier and cross-referenced to particular invoices and the Customer acknowledges that if it should process or mix the goods with other products or items such that the goods are no longer separately identifiable then the Customer and the Supplier will be owners in common of the new product; and
(iii) the Customer may sell the goods in the ordinary course of its business as bailee for the Supplier and will hold the proceeds of sale in a separate account on trust for the Supplier and account to the Supplier for those proceeds.
(c) The Customer will insure the goods against theft or any damage until such goods have been paid for or until they are sold by the Customer whichever occurs first and the Supplier will be entitled to call for details of the insurance policy. Excluding Consumer Contracts and Small Business Contacts, if the Customer does not insure the goods or fails to supply details of its insurance policy, the Customer will reimburse the Supplier for the cost of any insurance which the Supplier may reasonably arrange in respect of the goods supplied to the Customer.
10. Special Orders and Specifications in General
The Customer warrants to the Supplier that all drawings and specifications and other design information provided to the Supplier for the manufacture of special orders or tooling are accurate and correct in all respects and do not infringe upon the intellectual property rights of any third party including any copyright, patents, designs or trademarks of a third party.
11. Return of Goods - Consumers
If the Customer is a Consumer, the provisions of this clause 11 apply:
(a) Subject to clause 11(e), unless agreed in writing by the Supplier, the Supplier will not accept the return of goods. Goods accepted for return by the Supplier may attract a charge to recover restocking and repackaging charges. The amount of this charge will be determined by the Supplier and recoverable from the Customer.
(b) The proof of purchase from the Customer must accompany all goods returned to the Supplier.
(c) The goods come with guarantees that cannot be excluded under the Australian Consumer Law or the NZ Consumer Law. The Customer is entitled to a replacement or refund for a major failure and to compensation for any other reasonably foreseeable loss or damage in accordance with the Australian Consumer Law and the New Zealand Consumer Law if applicable. The Customer is entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
(d) The guarantees under the Australian Consumer Law and the New Zealand Consumer Law where applicable are given by the Supplier.
(e) If the Customer believes the goods do not comply with the statutory guarantees, they must contact the Supplier and the parties may make arrangements for the return of the goods. Any returned goods must be accompanied by proof of purchase. If the Supplier agrees that the goods do not comply with the statutory guarantee the Supplier will refund the costs of returning the goods to the Supplier and, in all other respects, act in accordance with its obligations under the Australian Consumer Law.
(f) Subject to clause 11(d), all other terms, representations, warranties, guarantees and conditions that might otherwise be granted or implied by Law are expressly excluded to the maximum extent permitted by Law, unless agreed by the Supplier in writing. The Supplier does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified except to a limited extent, as between the Supplier and the Customer by Law.
12. Return of Goods (Non Consumers)
If the Customer is not a Consumer, the provisions of this clause 12 apply:
(a) Unless agreed in writing by the Supplier, the Supplier will not accept the return of goods. Goods accepted for return by the Supplier may attract a charge to recover restocking and repackaging charges. The amount of this charge will be determined by the Supplier and debited to the credit account of the Customer.
(b) The proof of purchase from the Customer must accompany all goods returned to the Supplier.
(c) All claims for the Supplier's failure to comply with the Customer’s order whether due to shortfall, defect, incorrect delivery or otherwise must be made by giving written notice to the Supplier within fourteen (14) days from the date of delivery of goods. If the Customer fails to provide such notice then the Customer will be deemed to have accepted the goods.
(d) All terms, representations, warranties and conditions that might otherwise be granted or implied by Law are expressly excluded to the maximum extent permitted by Law, unless the Supplier agrees in writing. The Supplier does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified except to a limited extent, as between the Supplier and the Customer by Law.
(e) The Supplier’s liability for breach of a non-excludable condition or warranty is limited at the Supplier's option, to any one of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods;
(iii) the payment of the cost of providing replacement goods or of acquiring equivalent goods;
(iv) the payment of the cost of having the goods repaired; or
(a) If the Customer defaults in the performance or observance of its obligations under any Contract of which these Conditions form part, then:
(i) the Supplier will give the Customer notice of such default and request that the Customer remedies any breach within the time stipulated in these Conditions or, if no time is stipulated, a reasonable time; and
(ii) if that breach is not remedied within the time stipulated in the notice, then the Customer will indemnify the Supplier in respect of loss, damage, costs (including collection costs, bank dishonour fees, and legal costs on an indemnity basis) that the Supplier has suffered arising therefrom.
(c) The Customer’s liability to indemnify the Supplier under a provision of the Contract (including these Conditions) will be reduced proportionally to the extent that any fraud, negligence, or wilful misconduct by the Supplier or a breach of the Supplier’s obligations under Contract or the Supplier’s breach of Law has contributed to the claim, loss, damage, or cost which is the subject of the indemnity.
(d) Each indemnity in a Contract is a continuing obligation separate and independent from the Customer’s other obligations and survives the termination or performance of any Contract of which these Conditions form part.
(e) For each indemnity in a Contract, the Supplier will take steps to mitigate its loss and damage and act reasonably in relation to the applicable default by the Customer.
(f) Without limiting clauses 13(a), the Customer indemnifies the Supplier for any loss, cost, damage or expense suffered by the Supplier arising from any failure to install the goods in accordance with their applicable installation instructions and manuals provided with the goods or to operate the goods in accordance with their applicable operation instructions and manuals provided with the goods, or in connection with the negligence of the Customer including in relation to the installation or operation of the goods.
(g) To the extent permitted by law, neither the Customer or Supplier are liable to the other for:
(i) any loss, cost, damage or expense to the extent that it is for indirect, special, economic or consequential loss, where consequential loss means any loss, cost, damage or expense beyond the normal measure and beyond that which every plaintiff in a like situation would suffer; and
(ii) any loss of revenue, business or profits of any nature whatsoever, loss of expected savings, loss of chance or business opportunity, business interruption, loss or reduction of goodwill or damage to reputation or any loss of value of intellectual property.
(a) The Customer acknowledges and agrees that the Supplier may collect Personal Information and credit information about the Customer and its directors, officers, partners and the Guarantors (each a “Relevant Party”).
(e) The Customer warrants to the Supplier that it has obtained the consent of each of the Relevant Parties to the collection, use and disclosure of their Personal Information and credit information by the Supplier in accordance with this clause 14 and the Supplier’s Policies.
15. Fitness for Purpose
(a) the Customer is not a Consumer; and
(b) the Contract is not a Consumer Contract or a Small Business Contract,
then the Customer agrees that:
(c) it does not rely on the skill or judgement of the Supplier in relation to the suitability of any goods for a particular purpose; and
(d) any advice, recommendation, information or assistance provided by the Supplier is provided without any liability by the Supplier whatsoever.
(a) the Customer is a Consumer; or
(b) the Contract is a Consumer Contract or a Small Business Contract,
then the Customer acknowledges and agrees that:
(a) it must install the goods in accordance with their applicable installation instructions and manuals provided with the goods or to operate the goods in accordance with their applicable operation instructions and manuals provided with the goods; and
(b) any advice, recommendation, information or assistance provided by the Supplier is provided in good faith, relying upon the accuracy and completeness of information provided by the Customer to the Supplier.
(a) Any expression used in this clause or clause 4(a) and which is defined in the "A New Tax System, (Goods Tax) Act 1999" has the same meaning in clause 4(a) and this clause 16.In respect of goods supplied into NZ any expression used in this clause or clause 4(a) and which is defined in the New Zealand GST Act 1985 has the same meaning in clause 4(a) and this clause 16.
(b) With the exception of any amount payable under this clause 16, unless otherwise expressly stated, all amounts stated to be payable by the Customer under any Contract are exclusive of GST.
(c) If GST is imposed on any supply made under or in accordance with any Contract, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with the Contract, subject to the provision of a tax invoice by the supplier to the recipient.
17. Trust and Trustees
If the Customer is acting as the trustee of any trust (whether disclosed or not), then:
(a) the Customer will provide the Supplier with a copy of the Trust Deed (and any amendment) on request;
(b) the Customer declares that it is entering into this Contract both in its own capacity and as trustee of the trust with the ability to bind and the intention of binding both;
(c) the Customer will be liable both in its own name and as trustee of the trust; and
(d) the Customer acknowledges that the assets of the trust will be available to meet payment and obligations under this Contract, and of the Customers’ accounts.
18. Laws to Govern Provisions of Agreement
(a) Unless varied by notice in writing by the Supplier, each Contract will be governed by and construed in accordance with the laws of Queensland. The parties submit to the exclusive jurisdiction of the courts in Queensland.
(b) The parties agree that proceedings may be commenced in any such Court of Queensland and consent to that Court having jurisdiction by virtue of clause 18(a).
(a) Notices to be given by the Customer to the Supplier may be delivered personally, sent by prepaid ordinary mail or sent by email to the National Credit Manager of the Supplier at the Supplier's address as follows:
51 Naweena Rd, Regency Park, South Australia, 5010
and, unless the contrary is proved, notice will be taken as delivered on the third business day after it has been put into the post (if sent by post) or when it passes the point in the sender’s computer system that the communication could not be stopped by the sender from being transmitted (if sent by email) and, in either case, if deemed receipt occurs after 5.00pm on a business day, deemed receipt will be deferred until 8.30am on the next business day.
(b) Notices to be given to the Customer by the Supplier may be delivered personally or sent by prepaid ordinary mail or email to the contact details supplied by the Customer. Notices will be deemed to have been received on the third business day after it has been put into the post (if sent by post) or when it passes the point in the sender’s computer system that the communication could not be stopped by the sender from being transmitted (if sent by email) and, in either case, if deemed receipt occurs after 5.00pm on a business day, deemed receipt will be deferred until 8.30am on the next business day. The Customer consents to the receipt of commercial electronic messages from and relating to any Fletcher Group Member.
In the event that the whole or any part or parts of any provisions in any Contract should be held to be void or unenforceable in whole or in part such provision or part thereof will to that extent be severed from that Contract but the validity and enforceability of the remainder of that Contract will not be affected.
The Supplier reserves the right to sub-contract the manufacture and/or supply of the goods or any part thereof to a third party.
(a) Excluding Consumer Contracts and Small Business Contracts, the Supplier will be entitled to set off against any money owing to the Customer amounts owed to the Supplier by the Customer on any account whatsoever.
(b) The Supplier may waive any right or remedy it has under the Contract at any time and will notify the Customer in writing of any waiver.
(c) The failure of the Supplier to exercise a right or remedy, or any delay by the Supplier in exercising a right or remedy, or the exercise by the Supplier of only part of a right or remedy, or the granting of any indulgence by the Supplier in favour of the Customer does not:
(i) affect the Supplier’s rights against the Customer;
(ii) constitute a waiver of any term or condition; or
(iii) prohibit the Supplier from exercising that right or remedy in relation to that breach or any other breach.
(d) A waiver of a breach of a term or condition does not constitute a waiver of another breach of the same term or any other term.
(e) The application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded.
23. Electronic Execution
Each party consents and agrees that this Contract may be executed and delivered by an online system using a web-based portal, or by way of email or other electronic means, and in each case it must be considered an original and each party is legally bound by it as if the Contract was delivered as an original document with original signatures.
24. Force Majeure Event
(a) A party is not liable for any failure to observe its obligations under this Contract where such failure is wholly or substantially due to a Force Majeure Event provided that the party seeking to rely on the benefit of this clause:
(i) as soon as reasonably practicable, notifies the other party of the extent to which it is unable to perform its obligations; and
(ii) uses its best endeavours to mitigate the adverse effects of the Force Majeure Event and perform its obligations under this Contract as quickly as possible.
(b) Where the Force Majeure Event prevents a party from performing a material obligation under this Contract for a period in excess of 30 days, then the other party may by notice terminate this Contract and/or any Purchase Order, which will be effective immediately, unless otherwise stated in the notice.
(a) The Customer agrees to comply with the Anti-Corruption Law and must not commit any act or omission which causes or would cause it or the Supplier to breach, or commit an offence under, any Anti-Corruption Laws.
(b) The Customer warrants and represents that it has not been convicted of any offence, and has not been the subject of an investigation or enforcement proceedings by a governmental, administrative or regulatory body regarding any offence or alleged offence, under Anti-Corruption Laws.
(c) The Customer must, to the extent permitted by Law, promptly notify the Supplier in writing if it becomes aware at any time during the term of any Contract that any of the representations or warranties in clause 25(b) are, or might reasonably be expected to be, no longer correct.