Terms & Conditions of Trade
Burnlee Investments Pty Ltd T/A Snowy Mountains Rural & Hardware
1. Definitions
1.1 “SMRH” shall mean Burnlee Investments Pty Ltd T/A Snowy Mountains Rural & Hardware its successors and assigns or any person acting on behalf of and with the authority of Burnlee Investments Pty Ltd T/A Snowy Mountains Rural & Hardware.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by SMRH to the Customer.
1.3 “Guarantor”
means that person (or persons), or entity, who agrees to be liable for
the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by SMRH to the Customer (and where
the context so permits shall include any supply of Services as hereinafter
defined) and are as described on the invoices, quotation, work authorisation
or any other forms as provided by SMRH to the Customer.
1.5 “Services” shall mean all Services supplied by SMRH to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between SMRH and the Customer in accordance with clause 4 of this contract.
2. The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3. Acceptance
3.1 Any instructions received by SMRH from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by SMRH shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of SMRH.
3.4 The Customer shall give SMRH not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by SMRH as a result of the Customer’s failure to comply with this clause.
3.5 Goods are supplied by SMRH only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4. Price And Payment
4.1 At SMRH’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by SMRH to the Customer in respect
of Goods supplied; or
(b) SMRH’s current price at the date of delivery of the Goods according
to SMRH’s current Price list; or
(c) SMRH’s quoted Price, which shall be binding upon SMRH provided that
the Customer shall accept SMRH’s quotation in writing within thirty (30)
days.
4.2 At SMRH’s sole discretion a non-refundable deposit may be required for non-stocked or custom-made Goods.
4.3 At SMRH’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment shall be due before delivery of the Goods; or
(c) payment for approved Customers shall be due thirty (30) days following
the end of the month in which a statement is posted to the Customer’s address
or address for notices.
4.4 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.5 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and SMRH.
4.6 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5. Delivery Of Goods
5.1 At SMRH’s sole discretion delivery of the Goods
shall take place when:
(a) the Customer takes possession of the Goods at SMRH’s address; or
(b) the Customer takes possession of the Goods at the Customer’s nominated
address (in the event that the Goods are delivered by SMRH or SMRH’s nominated
carrier).
5.2 At SMRH’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Customer’s account.
5.3 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.4 SMRH may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.5 The failure of SMRH to deliver shall not entitle either party to treat this contract as repudiated.
5.6 SMRH shall not be liable for any loss or damage whatsoever due to failure by SMRH to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of SMRH.
6. Risk
6.1 If SMRH retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 Where the Customer expressly requests SMRH to leave Goods outside SMRH’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Goods are insured adequately or at all.
6.3 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, SMRH is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by SMRH is sufficient evidence of SMRH’s rights to receive the insurance proceeds without the need for any person dealing with SMRH to make further enquiries.
7. Title
7.1 SMRH and the Customer agree that ownership of the Goods shall
not pass until:
(a) the Customer has paid SMRH all amounts owing for the particular Goods;
and
(b) the Customer has met all other obligations due by the Customer to SMRH
in respect of all contracts between SMRH and the Customer.
7.2 Receipt by SMRH of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then SMRH’s ownership or rights in respect of the Goods shall continue.
7.3
It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable
until SMRH shall have received payment and all other obligations of the
Customer are met; and
(b) until such time as ownership of the Goods shall pass from SMRH to the
Customer SMRH may give notice in writing to the Customer to return the
Goods or any of them to SMRH. Upon such notice the rights of the Customer
to obtain ownership or any other interest in the Goods shall cease; and
(c) SMRH shall have the right of stopping the Goods in transit whether
or not delivery has been made; and
(d) if the Customer fails to return the Goods to SMRH then SMRH or SMRH’s
agent may enter upon and into land and premises owned, occupied or used
by the Customer, or any premises as the invitee of the Customer, where
the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as SMRH
has received payment in full for the Goods then the Customer shall hold
any proceeds from the sale or disposal of the Goods, up to and including
the amount the Customer owes to SMRH for the Goods, on trust for SMRH;
and
(f) the Customer shall not deal with the money of SMRH in any way which
may be adverse to SMRH; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise
give any interest in the Goods while they remain the property of SMRH;
and
(h) SMRH can issue proceedings to recover the Price of the Goods sold notwithstanding
that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer,
if the Goods are converted into other products, the parties agree that
SMRH will be the owner of the end products.
8. Defects
8.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify SMRH of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford SMRH an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which SMRH has agreed in writing that the Customer is entitled to reject, SMRH’s liability is limited to either (at SMRH’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
8.2 Goods will not be accepted for return other than in accordance with 8.1 above.
9. Warranty
9.1 For Goods not manufactured by SMRH, the warranty shall be the current warranty provided by the manufacturer of the Goods. SMRH shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
10. Intellectual Property
10.1 Where SMRH has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in SMRH, and shall only be used by the Customer at SMRH’s discretion.
10.2 The Customer warrants that all designs or instructions to SMRH will not cause SMRH to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify SMRH against any action taken by a third party against SMRH in respect of any such infringement.
11. Default & Consequences of Default
11.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month (and at SMRH’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
11.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by SMRH.
11.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify SMRH from and against all costs and disbursements incurred by SMRH in pursuing the debt including legal costs on a solicitor and own client basis and SMRH’s collection agency costs.
11.4 Without prejudice to any other remedies SMRH may have, if at any time the Customer is in breach of any obligation (including those relating to payment), SMRH may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. SMRH will not be liable to the Customer for any loss or damage the Customer suffers because SMRH has exercised its rights under this clause.
11.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
11.6 Without prejudice to SMRH’s other remedies at law
SMRH shall be entitled to cancel all or any part of any order of the Customer
which remains unfulfilled and all amounts owing to SMRH shall, whether
or not due for payment, become immediately payable in the event that:
(a) any money payable to SMRH becomes overdue, or in SMRH’s opinion the
Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors
or proposes or enters into an arrangement with creditors, or makes an assignment
for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar
person is appointed in respect of the Customer or any asset of the Customer.
12. Security And Charge
12.1 Despite anything to the contrary contained
herein or any other rights which SMRH may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land,
realty or any other asset capable of being charged, both the Customer and/or
the Guarantor agree to mortgage and/or charge all of their joint and/or
several interest in the said land, realty or any other asset to SMRH or
SMRH’s nominee to secure all amounts and other monetary obligations payable
under these terms and conditions. The Customer and/or the Guarantor acknowledge
and agree that SMRH (or SMRH’s nominee) shall be entitled to lodge where
appropriate a caveat, which caveat shall be withdrawn once all payments
and other monetary obligations payable hereunder have been met.
(b) should SMRH elect to proceed in any manner in accordance with this
clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify
SMRH from and against all SMRH’s costs and disbursements including legal
costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate
constitute and appoint SMRH or SMRH’s nominee as the Customer’s and/or
Guarantor’s true and lawful attorney to perform all necessary acts to give
effect to the provisions of this clause 12.1.
13. Cancellation
13.1 SMRH may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice SMRH shall repay to the Customer any sums paid in respect of the Price. SMRH shall not be liable for any loss or damage whatsoever arising from such cancellation.
13.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by SMRH (including, but not limited to, any loss of profits) up to the time of cancellation.
13.3 Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once the order has been placed.
14. Privacy Act 1988
14.1 The Customer and/or the Guarantor/s agree for SMRH to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by SMRH.
14.2 The Customer and/or the Guarantor/s agree
that SMRH may exchange information about the Customer and the Guarantor/s
with those credit providers either named as trade referees by the Customer
or named in a consumer credit report issued by a credit reporting agency
for the following purposes:
(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status
of this credit account, where the Customer is in default with other credit
providers; and/or
(d) to assess the credit worthiness of Customer and/or Guarantor/s.
14.3 The Customer consents to SMRH being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4
The Customer agrees that personal credit information provided may be used
and retained by SMRH for the following purposes and for other purposes
as shall be agreed between the Customer and SMRH or required by law from
time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by SMRH, its agents or distributors in relation
to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment
and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or
credit facilities requested by Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection
of amounts outstanding in the Customer’s account in relation to the Goods.
14.5
SMRH may give information about the Customer to a credit reporting agency
for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information
file containing information about the Customer.
15. Unpaid Seller’s Rights
15.1 Where the Customer has left any item with
SMRH for repair, modification, exchange or for SMRH to perform any other
Service in relation to the item and SMRH has not received or been tendered
the whole of the Price, or the payment has been dishonoured, SMRH shall
have:
(a) a lien on the item;
(b) the right to retain the item for the Price while SMRH is in possession
of the item;
(c) a right to sell the item.
15.2 The lien of SMRH shall continue despite the commencement of proceedings, or judgment for the Price having been obtained.
16. General
16.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
16.3 SMRH shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by SMRH of these terms and conditions.
16.4 In the event of any breach of this contract by SMRH the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
16.5 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by SMRH nor to withhold payment of any invoice because part of that invoice is in dispute.
16.6 SMRH may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
16.7 The Customer agrees that SMRH may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which SMRH notifies the
Customer of such change.
16.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
16.9 The failure by SMRH to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect SMRH’s right to subsequently enforce that provision.