JULY 2013
Uber Flor Pty Ltd
ABN: 16 163 235 087
ACN: 163 235 087
PO Box 5220
Erina Fair
NSW 2250
Fax: 07 3281 1189
Email: [email protected]
“Quality Without Compromise”
Unless the context requires otherwise:
1. DEFINITIONS
‘Buyer’ means the buyer of Goods, or services;
‘Contract’ means the contract for the sale of the Goods or Services, including these terms;
‘Default Event’ means any of the following:
(a) Buyer does not make a payment due to Seller under this or any other contract;
(b) Buyer is unable to pay its debts as they fall due;
(c) Buyer ceases or suspends conduct of its business, or threatens to;
(d) a resolution is passed or proposed or a summons is presented to wind up Buyer;
(e) a receiver and/or manager or other form of insolvency administrator is appointed over all or part of Buyer’s assets:
(f) Buyer makes or proposes to make any arrangement with its creditors;
(g) Buyer commits an act of bankruptcy; or
(h) execution is levied on any of Buyer’s assets;
‘Goods’ means the goods or services Seller sells or provides to Buyer;
‘Seller’ means Uber Flor Pty Ltd (A.B.N. 16 163 235 087)
2. PAYMENT, CREDIT AND PRICE
2.1 Buyer must pay for all Invoiced Goods on or before the expiration of thirty (30) days from the end of the month in which any and all Seller’s invoices were raised.
2.2 All sales are subject to such limits as to minimum quantity or cash value of order as Seller fixes from time to time.
2.3 Unless agreed in writing or otherwise, the price for Goods will be Seller’s list price in effect at the time of despatch or collection.
2.4 At its discretion, Seller may withdraw any credit or limit the amount of credit extended to Buyer at any time.
2.5 Where applicable, Buyer must bear sales G.S.T on the goods.
2.6 Where the total quantity of any item ordered represents a variance of the Seller’s stated “standard unit” of supply Buyer will be invoiced for and supplied with product to the next appropriate unit increment. TERMS & CONDITIONS OF TRADING JULY 2013
2.7 If a Default Event occurs:
(a) at its option, Seller may withhold further deliveries of Goods and/or withdraw any credit facilities; and
(b) all amounts outstanding to Seller by Buyer, even if not otherwise due for payment, will become immediately payable.
3. DELIVERY
3.1 Unless otherwise agreed, Seller will deliver the Goods to the address Buyer specifies at the cost to Buyer set out in Seller’s current Product Data.
3.2 If specifically agreed that the Goods are sold ex Seller’s store, at its cost and risk, Buyer must collect the Goods within the time agreed or, if no time is agreed, within a reasonable time.
3.3 Goods Seller delivers will be taken to be delivered immediately they are unloaded from the delivery vehicle and will be unloaded at Buyer’s cost and risk.
3.4 Buyer’s representative must be present at the delivery address at the time Goods are delivered. The representative must sign the delivery advice the driver of the delivery vehicle presents.
3.5 Seller may deliver the Goods even if Buyer’s representative is not present.
3.6 If delivery is by instalments, each instalment will be treated as a separate contract. If Seller fails to deliver an instalment by the estimated date or to deliver it at all, Buyer is not entitled to terminate the contract as to any further instalments.
3.7 If Seller fails to deliver any Goods to Buyer on time or at all, Seller’s only obligation is to refund to Buyer any amount received from Buyer for the goods not delivered. Seller will not be liable for any costs, damage or other loss Buyer or any other party suffers arising directly or indirectly from Seller’s failure to deliver the Goods on time or at all, whether or not due to Seller’s or its agent’s negligence.
4. RETENTION OF TITLE
4.1 Title to all Goods remains with Seller until Buyer pays to Seller all amounts Buyer owes to Seller on any account.
4.2 While Seller retains title to the Goods:
(a) on reasonable notice, Seller may enter premises where the Goods are stored to inspect the Goods; and
(b) Buyer may sell the Goods in the ordinary course of trade, until a Default Event occurs.
4.3 Until Buyer pays all amounts owed to Seller; Buyer:
(a) must store the Goods in a way that identifies them as Seller’s goods and so they can be distinguished from all other goods in Buyer’s possession;
(b) acknowledges that it holds the Goods as Seller’s bailee and that a fiduciary relationship exists with Seller, and
(c) must hold the proceeds from any sales of Goods on trust for Seller and hold these proceeds in a separate account or otherwise clearly identify these amounts in its accounts.
4.4 If a Default Event occurs:
(a) Buyer’s right to sell the Goods immediately terminates; and
(b) without notice to Buyer and without prejudice to any of its other rights, Seller may recover and/or re-sell the Goods or any part thereof and may enter Buyer’s premises by its servants or agents for that purpose. Buyer indemnifies Seller for all claims, actions, suits, demands, orders for costs or damages relating to or arising out of such entry TERMS & CONDITIONS OF TRADING JULY 2013
5. WARRANTY AND LIABILITY
5.1 Seller warrants:
- (a) that the Goods will be free from defects in material and workmanship except such defects as are normally regarded as being commercially acceptable; and
- (b) that the goods will conform to the description shown on Seller’s invoice and to Seller’s published Product Data current at the date of contract.
5.2 Except as set out in Paragraph 5.1 and 5.3, Seller;
(a) excludes all conditions and warranties in relation to the Goods whether imposed or implied by statute or otherwise; and
(b) will not be liable for any loss, damage or injury including loss of profits and consequential loss, arising from the condition, supply or use of the Goods, or out of Seller’s breach or performance of the contract, whether or not caused by Seller’s negligence.
5.3 The Contract includes terms implied by any statute which cannot be lawfully excluded including those implied by any applicable Acts of Fair Trading, Sale of Goods Acts or equivalent laws of trading pertaining to relevant States/Territories. However, in relation to the supply of goods or services which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, Seller’s liability for breach of those terms (other than section 69 of the Trade Practices Act) will be limited, at its option, to any one or more of:
(a) in the case of goods, the replacement, repair or payment of the cost of replacement or repair of the goods; and
(b) in the case of services, supplying the services again or payment of the cost of having the services supplied again.
5.4 Buyer acknowledges that it has exercised its independent skill and judgement in acquiring the Goods and has not relied on any advice or representation by Seller or any descriptions, illustrations or specifications contained in any document produced by Seller, which have not been stated expressly in these Terms.
5.5 Buyer will be taken to have waived any claim which they may have against Seller unless:
(a) Buyer gives Seller written notice of the claim within 7 days after delivery of the Goods: and
(b) Seller is given a reasonable opportunity to investigate the claim.
5.6 Regardless of anything else in the contract, Seller will not be liable to Buyer for Seller’s failure to comply with the contract due to any cause beyond Seller’s reasonable control. Seller’s obligations affected by this cause are suspended while the cause continues to hinder or prevent Seller’s performance.
5.7 Buyer will be liable to Seller if Buyer wrongfully terminates this contract or refuses to accept all or part of the Goods. If the Goods have been made specially for Buyer, or are in the process of being made, Buyer must pay to Seller as liquidated damages the full contract price of the Goods and any costs incurred by Seller less any current sacrificial value of the Goods as determined by Seller.
6. STOCKING
6.1 If Buyer does not request delivery of the Goods within thirty (30) days of Goods becoming available for delivery, at its option, Seller may:
(a) deliver the Goods to Buyer, in which case the delivery will be taken to be a delivery pursuant to the contract: or
(b) treat Buyer as having cancelled the contract and invoice Buyer for an amount determined in accordance with paragraph 5.7.
6.2 Seller will not be liable for any loss or damage Buyer sustains arising out of anything referred to in this paragraph (6) and will not be required to remove any stains or soiling. TERMS & CONDITIONS OF TRADING JULY 2013
7. VARIATIONS
7.1 Seller will not accept alterations to orders which are in production or completed.
7.2 If Buyer cancels all or part of a special order:
(a) before Seller has started production of the goods, Buyer must pay Seller as liquidated damages an amount equal to 10% of the price of the cancelled goods; or
(b) after Seller has started production of the goods, Buyer must pay to Seller as liquidated damages the full price of the goods cancelled, less any current sacrificial value of the goods as determined by Seller.
7.3 Requests for return of product other than special orders may be considered by, and at the absolute discretion of, Seller.
If a return is approved by the Seller, Buyer must pay to Seller a “re-stocking” fee as liquidated damages an amount
equal to 25% of the price of the returned goods.
8. PATENTS AND DESIGNS
8.1 Buyer must indemnify Seller against all damages, losses and expenses which Seller incurs arising out of any claim made against Buyer or Seller that the Goods, their method of manufacture or their design infringe any industrial or intellectual property rights.
8.2 Paragraph 8.1 does not apply in relation to Goods described as standard products in Seller’s published Product Data.
8.3 The Seller shall have the sole rights to seek patents on any invention or idea arising out of the Contract and the Buyer shall, and ensure that its employees shall, execute all documents and instruments and do or refrain from doing all such acts as the Seller may reasonably require for such purpose.
9. THIRD PARTIES SERVICES SELLER PROCURES AT BUYER’S REQUEST
If at Buyer’s request Seller arranges for any goods or services to be provided by a third party in relation to a contract:
(a) Buyer must indemnify Seller and keep it indemnified in respect of any claims, actions, suits, demands, orders for costs or damages relating to or arising out of the arrangement; and
(b) the Goods and or services the subject of the contract between Buyer and Seller will be taken to be delivered by Seller when Seller delivers them to the third party.
10. MISCELLANEOUS
12.1 The contract is not a sale by sample, even if a sample was inspected by Buyer or exhibited.
12.2 Seller’s waiver of any provision, or breach of any provision, of the contract must not be construed as a waiver of any other provision, or a breach of any other provisions, or subsequent breach of the same or any other provision of the contract.
12.3 Where this contract conflicts with anything set out in Seller’s current published Product Data as the date of contract, the product data terms prevail to the extent of the conflict.
12.4 Unless Seller agrees in writing to the contrary, these Terms prevail over the terms of Buyer’s order.
12.5 The contract must be construed accordingly to New South Wales’ law. The parties accept the non-exclusive jurisdiction of the Courts of that State.
12.6 If Buyer requests a deferment of delivery of the Goods and Seller agrees to defer delivery, Buyer must pay the storage fee Seller specifies.
12.7 These terms may only be varied if Seller agrees in writing.
12.8 Any notice to be given hereunder shall be in writing or by some secure form of electronic transmission and addressed to the other party at its last known address and such notice shall be deemed to have been served, if sent by post, forty-eight hours after posting or, if sent by electronic transmission, on receipt by the other party.