TERMS AND CONDITIONS OF SALE
In these Terms and Conditions of Sale:
- “Agreement” means any agreement or contract entered into for the provision of goods by the Seller to the Customer;
- “Customer” means a person, firm or corporation, jointly and severally if there is more than one, acquiring goods from the Seller;
- “Debt” means any and all monies and or payments owed to The Seller by The Buyer.
- “goods” means goods supplied by the Seller to the Customer;
- “GST” means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;
- “PPSA” means the Personal Property Securities Act 2009.
- “PPSR” means the Personal Property Securities Register.
- “attached”, “attachment”, “accession”, “collateral”, “commingled”, “document of title”, “future advance”,
- “intangible property”, “inventory”, “perfected”, “personal property”, “proceeds”, “purchase money security interest” (“PMSI”),
- “security interest”, “trace, tracing and or traceable”, “transfer”, “value”, and all related terms have the meanings given them by the PPSA.
- “Receiver” includes a manager, and means a person or persons appointed by The Seller to hold, keep safe, administer or manage property of The Buyer for the benefit of The Seller.
- “Seller” means Stucchi FCP Pty Ltd ABN 22 163 283 789
- “Terms” means these Terms and Conditions of Sale;
2 Basis of Agreement
2.1 Unless otherwise agreed by the Seller in writing, the Terms apply exclusively to every Agreement and cannot be varied or supplanted by any other condition, including the Customer’s terms and conditions of purchase (if any).
2.2 Any written quotation provided by the Seller to the Customer concerning the proposed supply of goods is valid for 30days and is an invitation to treat only.
2.3 The Terms may include additional terms in the Seller’s quotation, which are not inconsistent with the Terms.
2.4 The Agreement is accepted when by the Seller confirms acceptance of an offer from the Customer in writing or electronic means or provides the Customer with the goods ordered.
2.5 The Seller in its absolute discretion may refuse to accept any offer.
2.6 The Seller shall supply the goods ordered by the Customer by reference to the physical description of the goods and not by reference to the output of performance of the goods.
3.1 The Customer must provide the Seller with sufficient information to enable the Seller to fulfil the order. In the event of a failure to supply the information required, the Seller reserves the right to vary the price and/or the date of delivery.
4.1 All prices quoted are for supply of the goods ex works.
4.2 Prices quoted for the supply of goods exclude GST and any other taxes or duties imposed on or in relation to the goods. In addition to payment of the price of goods, the Customer must pay any GST and any other taxes or duties imposed in relation to the goods.
4.3 If the Customer requests any variation to an Agreement, the Seller may increase the price to account for the variation.
4.4 Where there is any change in the costs incurred by the Seller in relation to the goods, the Seller may vary its price for the goods in order to take account of any such change, by notifying the Customer.
4.5 Unless the Sellers quotation specifically states that the prices therein are fixed, the prices quoted shall be subject to alteration. The prices invoiced shall be those current at the date of invoice except in those cases where it has been expressly agreed in writing that other pricing provisions will apply.
4.6 Unless otherwise agreed, the Sellers prices are based on the current List Price of the goods
5.1 The Customer is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to the Customer to the point of delivery.
Stucchi FCP Pty Ltd
P.O.Box 4420, Dandenong South
Tel: 03 9793 4611
Fax: 03 9793 2216
5.2 Any period or date for delivery of goods stated by the Seller is intended as an estimate only and is not a contractual commitment. The Seller will use its reasonable endeavours to meet any estimated dates for provision of the goods.
6.1 Payment in full shall be due upon despatch of the goods or upon notification by the Seller that the goods are ready for despatch unless a credit account application made by the Customer has been accepted by the Seller.
6.2 If a credit account application has been accepted by the Seller, then subject to clause 6.3, payment for the goods must be made within 30 days from the end of the month of invoice.
6.3 The Seller reserves the right to require payment in full on or before delivery of the goods.
6.4 Payment by cheque is not deemed made until the proceeds of any cheque have cleared.
7 Payment Default
7.1 If the Customer defaults in payment by the due date of any amount payable to the Seller, then all money which would become payable by the Customer to the Seller at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and the Seller may, without prejudice to any other remedy available to it:
- (a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4 per cent for the period from the due date until the date of payment in full;
- (b) charge the Customer for, and the Customer must indemnify the Seller from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Terms or to recover any goods;
- (c) cease or suspend for such period as the Seller thinks fit, supply of any further goods to the Customer;
- (d) by notice in writing to the Customer, terminate any contract with the Customer so far as unperformed by the Seller; without effect on the accrued rights of the Seller under any contract.
7.2 Clauses 7.1(c) and (d) may also be relied upon, at the option of the Seller:
- (a) where the Customer is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of creditors or any class of creditors generally; or
- (b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or
composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up, of the Customer.
8 Passing of Property
8.1 Until full payment in cleared funds is received by the Seller for all goods supplied by it to the Customer, as well as all other amounts owing to the Seller by the Customer:
- (a) title and property in all goods remain vested in the Seller and do not pass to the Customer;
- (b) the Customer must hold the goods as fiduciary bailee and agent for the Seller;
- (c) the Customer must keep the goods separate from its goods and maintain the labelling and packaging of the Seller;
- (d) the Customer is required to hold the proceeds of any sale of the goods on trust for the Seller in a separate account, however, failure to do so will not affect the Customer’s obligation to deal with the proceeds as trustee;
- (e) and the Seller may without notice, enter any premises where it suspects the goods may be and remove them, notwithstanding that they may have been attached to other goods not the property of the Seller, and for this purpose the Customer irrevocably licences the Seller to enter such premises and also indemnifies the Seller from and against all costs, claims, demands or actions by any party arising from such action.
9 Risk and Insurance
9.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods will pass to the Customer immediately on the goods being despatched from the Seller’s premises.
9.2 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use or possession of any of the goods sold by the Seller, whether such goods are used singularly, or in combination with other substances or processes.
10 Selection of goods
10.1 The Customer agrees that:
- (a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by the Seller in relation to the goods or their use, fitness for purpose or application;
- (b) it has the sole responsibility of satisfying itself that the goods are suitable for the use of the Customer or any contemplated use by the Customer, whether or not such use is known by the Seller and meet with all relevant applicable standards and regulatory bodies before use or on-sale;
- (c) Any description of the goods provided in a quotation or invoice is given by way of identification only and the use of such description does not constitute a contract of sale by description.
11 Cancellation or Deferment of Orders
11.1 If, through circumstances beyond the control of the Seller, the Seller is unable to effect delivery or provision of goods then the Seller may cancel the Customer’s order (even if it has already been accepted) by notice in writing to the Customer, without prejudice to the Seller’s entitlement to payment of any accrued transport or carrier charges.
11.2 No purported cancellation or suspension of an order or any part of it by the Customer is binding on the Seller after the order has been accepted.
11.3 In the event of the Customer cancels an order, the Customer is required to pay the Seller the full price of the goods together with the full-unamortized costs of materials, dies, tools, patterns and fixtures made or contracted specifically for the order. Payment in full will be due on presentation of the Sellers invoice.
11.4 The Seller, in its absolute discretion may agree to defer or delay manufacture of goods on and subject to conditions stipulated by the Seller in writing at the time of cancellation.
12 Warranty, Liability and Indemnity
12.1 The Seller warrants for a period of one (1) year from the date of original delivery, that its goods are free from defects in material and workmanship. A Customer who claims that the goods are defective must return the goods to the Seller with any transportation charges to be borne by the Customer. The Seller shall examine the goods and determine in its absolute discretion whether such goods are defective in material or workmanship.
12.2 The Seller’s warranty shall not apply to any good or component thereof which has been repaired or altered outside of the Seller’s factory in any manner so as, in Seller’s sole judgement, to affect its serviceability, to any good which has been subject to misuse, negligence or accident, or to goods which have been installed or used in a manner contrary to industry standards or printed instructions.
12.3 Except as specifically set out herein, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
12.4 Replacement of the goods or components of the goods, the cost of replacement of the goods or the components of the goods is the absolute limit of the Seller’s liability howsoever arising under or in connection with the sale, use, storage or any other dealings with the goods by the Customer or any third party.
12.5 The Seller is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
12.6 The Seller will not be liable for any loss or damage suffered by the Customer where the Seller has failed to deliver goods or fails to meet any delivery date or cancels or suspends the supply of goods.
12.7 Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods which cannot be excluded, restricted or modified.
13 Competent User
13.1 The Customer acknowledges that it is a responsible and competent user or reseller of the goods and that it comprehends and understands the dangers of incorrect use of, incorrect installation of, or the incorrect assembly of these goods.
14.1 The laws of Victoria, Australia from time to time governs the Terms and the parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts
14.2 Failure by the Seller to enforce any of these Terms shall not be construed as a waiver of any of the Seller’s rights.
14.3 If any of the Terms are unenforceable it shall be read down so as to be enforceable or, if it cannot be so read down, the condition shall be severed from these Terms without affecting the enforceability of the remaining conditions.
14.4 A notice must be in writing and handed personally or sent by facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile are deemed received on the facsimile machine confirming transmission.
15 Insolvency/ Bankruptcy
15.1 Upon the appointment of a receiver; or the receipt of an Application for the appointment of a Provisional Liquidator; or receipt of an Application for wind-up; or receipt of a Bankruptcy Notice to and or of The Buyer, The Buyer shall forthwith notify The Seller of same; and the Director’s of The Buyer shall remain liable under this Agreement for payment of all liabilities incurred under this Agreement; even if The Seller receives a dividend or payment as a result of The Buyer being insolvent.
15.2 The Seller may (whether or not it has exercised any other power) appoint, at the expense of The Buyer, any person or persons to be a Receiver of all or any of the Collateral:
15.3 Upon the occurrence of clause 7.1; or
15.4 Upon termination of the Agreement pursuant to clauses 6 and 12; or
15.5 If the Buyer requests.
15.6 The Seller may remove any Receiver and may appoint a new Receiver in place of any Receiver who has been removed, retired or died.
15.7 In addition to, and without affecting, any other powers and authorities conferred on a receiver (whether under the Corporations Act 2001 or at law or otherwise), a Receiver has the power to do all things in relation to the Collateral as if the Receiver has absolute ownership of the Collateral.
15.8 All amounts received by The Seller or any Receiver, whether in the exercise of that person’s powers or otherwise, in relation to any personal property will be applied in accordance with the provisions of the PPSA. All amounts received by The Seller or any Receiver, whether in the exercise of that person’s power or otherwise, in relation to any other property will (subject to claims of all secured and unsecured creditors, if any, ranking in priority over that other property) be applied:
15.9 First, in payment of all expenses (including legal expenses on a full indemnity basis and all taxes and the remuneration of the Receiver, but subject to any direction in respect thereof by any court with competent jurisdiction); and
15.10 Secondly, in payment to The Seller of the Secured Money.
16 Personal Property Securities ACT (“PPSA”):
16.1 The parties agree that this Agreement is a Security Agreement, pursuant to the PPSA, which creates a security interest in favor of the Seller in all Goods previously supplied by the Seller to the Buyer (if any) and all after acquired Good supplied by the Seller to the Buyer (or for the Buyer’s account) to secure the payment from time to time and at a time, including advances. The Buyer agrees to grant a “Purchase Money Security Interest” to the Seller and that The Seller will have the right to register a Security Interest in the Collateral and its Proceeds on the PPSR, and as a Purchase Money Security Interest if applicable.
16.2 The Buyer acknowledges and agrees;
16.2.1 To granting The Seller a security interest in all of The Buyer’s present and after-acquired property, and all of The Buyers present and future rights in relation to any personal property, including but not limited to all its books of account, financial records, goodwill, documents of title and intellectual property; and
16.2.2 To charge all of its present and future interest in, and all of The Buyers present and future rights in relation to, any land and any other property, other than any personal property to which the PPSA applies, in favour of \ The Seller;
16.3 As security for:
16.3.1 The advance or delivery of all amounts, goods, machinery and credit of any nature which The Buyer (either of them, or jointly, or jointly or severally with any other person) is, or may at any time become, liable (whether actually or contingently) to pay or deliver to The Seller (whether alone, or jointly, or jointly or severally with any other person) (“the Collateral”); and
16.3.2 The payment or delivery of all amounts of any nature which The Buyer (either of them, or jointly, or jointly or severally with any other person) is, or may at any time become, liable (whether actually or contingently) to pay or deliver to The Seller (whether alone, or jointly, or jointly or severally with any other person) (“Secured Money”); and
16.3.3 The performance by The Buyer of all The Buyers other obligations to The Seller at any time.
16.4 The parties agree that until such time as all debts (including but not limited to the Account debt) (“the Debt”) owing to The Seller for provision of the Collateral have been satisfied by The Buyer, The Seller shall have a priority interest in the Collateral and or the Secured Money in satisfaction of the Debt.
16.5 The parties agree that The Seller’s security Interest extends to Proceeds and is enforceable against a third party whether or not the security agreement providing for the Security Interest contains a description of the proceeds.
16.6 Where the PPSA applies to action taken by The Seller in relation to the Collateral, The Buyer waives its rights to receive any notices required under section 95, 118, 121, 130, 132 or 135 of the PPSA.
16.7 The Buyer agrees to waive its rights under section 157 of the PPSA to receive notice of any variation statement.
16.8 The Buyer agrees not to do, or omit to do, or allow to be done, or omitted to be done, anything which might adversely affect any Collateral or Security Interest or charge created pursuant to this Agreement and must reduce as far as possible the risk of a third party acquiring an interest in the Collateral and the Proceeds which would otherwise affect the interests of The Seller.
16.9 The Buyer agrees to:-
16.9.1 Do all things necessary to ensuring that any Security Interest required by the Seller is enforceable, perfected and otherwise effective;
16.10 Sign any further documents and/or provide any further information (which information the Buyer warrants to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to enable registration of a financing statement or financing change statement on the Personal Properties Security Register (“PPSR”);
16.10.1 Do all things necessary to enabling The Seller to exercise its rights in connection with a registered Security Interest.
16.10.2 Not register a financing change statement as defined in section 10 of the PPSA or make a demand to alter the financing statement pursuant to section 178 of the PPSA in respect if the Goods without the prior written consent of the seller;
16.10.3 Give the Seller not less than 14 days’ written notice of any proposed change in the Buyer’s name and/or any other changes in the Buyer’s details (including by not limited changes in the Buyer’s address, facsimile number, email address, trading name or business practice);
16.10.4 Pay all costs incurred by the Seller in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR and/or enforcing or attempting to enforce the security interest created by these Terms and Conditions of Trade including executing subordination agreements; and
16.10.5 Be responsible for the full costs incurred by the Seller (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPSA.
16.11 The parties agree that the security interest granted in Personal Property under this Agreement has the same priority in relation to all Secured Money, including future advances, and the performance of all obligations secured by this Agreement.
16.12 The parties agree that a security interest created by this Agreement to which the PPSA applies shall attach, in the case of: any present property;
16.12.1 On the earlier of when The Buyer signs, or assents to this Agreement in one of the ways specified in ss 20(2) of the PPSA; or
16.12.2 Upon delivery or supply of the Goods to The Buyer; or
16.12.3 Upon the providing of Credit to The Buyer; and any after acquired property;
16.12.4 When The Buyer acquires any rights in that property.
16.12.5 The Buyer acknowledges and agrees that it has made no agreement with The Seller that attachment of any security interest will be at any time other than that set out in clause 16 of this Agreement.
16.12.6 The Buyer grants the Seller or the Sellers agent Power of Attorney to do all things and execute all documents necessary for the registration and exercise of the Sellers rights in respect of the PPSA and PPSR.
Stucchi FCP Pty Ltd
ABN: 22 163 283 789