1. In this contract, “Authorised Representatives” means the Chief Executive Officer, the Financial Controller, any Director, and any General Manager of the Seller.
2. This contract comprises all the terms and conditions made between the parties. All other terms and conditions are expressly excluded unless they are in writing signed by both parties.
3. All orders for goods shall be deemed to be an offer by the Buyer to purchase goods pursuant to these Conditions. No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Authorised Representatives.
4. No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Authorised Representatives on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
5. Acceptance of delivery of the goods shall be deemed conclusive evidence of the Buyer’s acceptance of these conditions.
6. Any Variations to these Conditions shall be inapplicable unless agreed in writing by the Authorised Representatives.
7. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
8. The price shall be the Seller’s quoted price. Unless otherwise agreed in writing by the Authorised Representatives, all prices are given by the Seller on an ex works basis excluding carriage, packing, insurance and any applicable tax or duty. Where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
9. The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the goods to reflect any increase in the cost to the Seller which is due to any factor beyond control of the Seller.
10. Payment of the price shall be due (without any deduction) within 30 days of the date of the invoice unless otherwise agreed in writing by the Authorised Representatives. Time for payment shall be of the essence.
11. Where payment of the price shall be deemed to be duly made by the Buyer only upon the Seller’s receipt of cash or cleared funds amounting to the price of the goods.
12. Where payment for the price is made by way of a Letter of Credit or a Bill of Exchange with a bank, any costs, administrative or otherwise, incurred thereby shall be borne by the Buyer.
13. If the Buyer fails to make full payment on the due date or is otherwise in breach of its obligations under the Contract, then without prejudice to any right or remedy available to the Seller, the Seller shall be entitled to cancel the contract or suspend any further deliveries to the Buyer; appropriate any payment made by the Buyer to such of the goods as the Seller may think fit; and charge the Buyer interest (both before and after any judgment) from day to day on the amount unpaid, at the rate of 1% per month until payment in full is made.
14. The quantity, quality and description of any specification for the goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
15. The Seller may from time to time make changes in the quantity, quality and description of any specification for the goods which are required to comply with any applicable safety or statutory requirements or which do not materially affect the quality or fitness for the purpose of the goods.
16. The Seller’s employees or agents are not authorised to make any representations or warranties concerning the goods unless they are confirmed in writing by the Authorised Representatives. In entering into the Contract, the Buyer acknowledges that it does not rely on any such representations or warranties which are not so confirmed.
17. The Seller shall not be liable to the Buyer or be deemed to be in breach of the contract for the sale and purchase of the goods by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control.
18. Delivery of the goods shall be made by the Buyer collecting the goods at the Seller’s premises at any time after the Seller has notified the Buyer that the goods are ready for collection or, if some other place for delivery is agreed in writing by the Authorised Representatives, by the Seller delivering the goods to that place.
19. Any dates quoted for delivery of the goods are approximate only and the Seller shall not be liable for any delay in delivery of the goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Authorised Representatives in writing.
20. Where the goods are to be delivered in installments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments in accordance with these conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the contract as a whole as repudiated.
21. If the Buyer fails to take delivery of the goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to do any or all of the following at its sole discretion:-
( a ) store the goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage;
( b ) take all steps it deems necessary to prevent the deterioration of the goods and charge the Buyer for the reasonable costs incurred thereby; and/or
( c ) without any reference to the Buyer,
(i) where the Buyer fails to make full payment of the price on the due date or is otherwise in breach of its obligations under the Contract, treat the Contract as repudiated by the Buyer and to sell at the best price readily obtainable or otherwise dispose of the goods; or
(ii) where the Buyer has made full payment of the price on the due date and is otherwise not in breach of its obligations under the Contract, sell at the best price readily obtainable or otherwise dispose of the goods.
If the said goods are sold or disposed of at a higher price, the Seller shall only account to the Buyer the price under the Contract and is entitled to keep any profits. If such goods are sold or disposed of at a price same as or lower than the price under the Contract, the Seller shall only account to the Buyer the balance due from such sale after deducting all reasonable storage and selling expenses.
22. The Buyer shall inspect the goods on delivery and shall within 3 days of delivery notify the Seller of any alleged defect or failure to comply with description. The Buyer shall then afford the Seller an opportunity to inspect the goods within a reasonable time following delivery and before any use is made of them. If the Buyer shall fail to comply with these provisions, the goods shall be conclusively presumed to be in accordance with the contract and free from any defect or damage and the Buyer shall be deemed to have accepted the goods.
23. The Buyer shall inspect the goods on delivery and shall notify the Seller of any shortage in quantity at the time of delivery PROVIDED ALWAYS that not withstanding the recipient by the Seller of any notice of shortage in quantity, a clear signature of the recipient on the Seller’s delivery advice sheet shall be deemed to signify receipt of the quantity indicated on the advice sheet.
24. If the Buyer shall fail to comply with Condition 23 herein, the goods shall be conclusively presumed to be in accordance with the Contract and free from any defect or damage and the Buyer shall be deemed to have accepted the goods.
25. If the goods are not in accordance with the Contract for any reason and the Buyer has duly given the Seller notice thereof pursuant to Condition 23 herein, the Buyer’s sole remedy shall be limited to the Seller making good any alleged defect, shortage in quantity or failure to comply with description by replacing or effecting rectification of such goods at the Seller’s discretion or, if the Seller shall elect, by refunding a proportionate part of the price under the Contract.
26. Where the Buyer rejects any goods, then the Buyer shall have no further rights whatever in respect of the supply to the Buyer of such goods or the failure by the Seller to supply goods which conform to the contract.
27. Where the Buyer accepts or has been deemed to have accepted any goods, then the Seller shall have no liability whatever to the Buyer in respect of those goods.
28. The Seller shall not be liable to the Buyer for late delivery or short delivery of the goods.
29. Risk of damage to or loss of the goods shall pass to the Buyer.
a. in the case of goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the goods are available for collection; or
b. in the case of goods to be delivered otherwise than at the Seller’s premises, at the time of delivery to that place.
30. Notwithstanding delivery and the passing of risk in the goods, or any provisions to the contrary, the property in the goods shall not pass to the Buyer until the Seller has received payment in full for the price of the goods.
31. Until such time as the property in the goods passes to the Buyer, the Buyer shall hold the goods as the Seller’s fiduciary agent and bailee, and shall keep the goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property.
32 The Seller shall be entitled to recover the price notwithstanding that in any of the goods has not passed from the Seller.
33. If the Buyer shall be declared bankrupt or commit an act of bankruptcy or enter into a scheme or arrangement to make any assignment for the benefit of creditors or being a Company shall resolve to go into liquidation or have an application for its winding up filed in any count of competent jurisdiction or enter into any scheme or arrangement or assignment or composition for the benefit of creditors or have an official manager or receiver appointed over the whole part of its assets or undertaking, or ceases or threatens to cease to carry on business, then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to the Buyer and any goods delivered shall become payable forwith notwithstanding any agreement to the contrary.
34. The Buyer shall not withhold payment of any invoice or other amount due to the Seller by reason of any right or alleged right of set-off or counterclaim whatsoever.
35. No waiver by the Seller of any breach of the contract by the Buyer shall be considered as a waiver of any subsequent breach of contract.
36. Unenforceability of a provision of these conditions does not affect the enforceability of any other provision of these conditions.
37. This contract shall be interpreted in accordance with the laws of New South Wales, Australia.
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