General, conclusion of contract
(a) In these terms and conditions “the Seller” means Leitz Tooling Systems Pty Ltd ACN (054 826 434) the provider of Goods to the Buyer and includes the Seller’s successors and assigns and “the Buyer” shall mean the entity, partnership or individual requesting Goods from the Seller and shall include the Buyer’s successors and assigns.
(b) Where the Buyer is applying to the Seller for a Credit Trading Account the Buyer is the individual/s, partnership or entity detailed in the Credit Application and in this case the Buyer warrants that all information contained in any Credit Application to the Seller is true and correct at the time of making the application for credit.
(c) These terms and conditions shall apply to the exclusion of all others (with the exception of Clause
(d) herein) including any terms and conditions of the Buyer (whether on the Buyer’s order form or otherwise) or to be negotiated and agreed with the Buyer. (d) The Buyer acknowledges that these terms and conditions constitute the agreement between the parties however the Seller reserves the right to incorporate additional terms and conditions to be included in any quotation provided to the Buyer in writing or otherwise. Such additional terms and conditions together with the terms and conditions herein will then constitute the agreement between the Seller and the Buyer. (e) The Seller reserves the right to 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 the Seller notifies the Buyer of such change.
2. PRICES Orders are accepted on the condition that the Goods will be invoiced at the price ruling at the date the Goods are despatched. Unless specified to the contrary, prices quoted are exclusive of all GST, stamp duty and like levies or taxes. The Seller may amend prices at any time without prior notice.
3. PAYMENT The Buyer shall make payment to the Seller for all goods supplied within thirty (30) days from the date of statement unless otherwise agreed in writing. A 5% discount shall be applicable for payments made within ten (10) days from the date of invoice and 2.5% discount for payments made within thirty (30) days from the date of invoice. The Buyer acknowledges that time is of the essence with regard to payment and that any breach of this term will enable the Seller to exercise all of its rights contained herein including (but without in any way limiting its rights) the right to cancel further credit and to take legal action for the recovery of all sums outstanding. Credit card payments shall attract a processing fee of 1.75% and the Seller will not accept American Express or Diners Club cards.
4. INTEREST Should payment remain outstanding beyond the Seller’s payment terms as outlined in Clause 3 above, the Buyer agrees to pay interest on all amounts outstanding from the due date until the date of payment at a rate equal to 2% above the Seller’s then overdraft rate as varied from time to time.
5. COSTS Should payment remain outstanding beyond the Seller’s payment terms as outlined in Clause 3, the Buyer agrees to pay all legal costs (on a solicitor/own Buyer basis) and all Mercantile Agent’s fees (including any commission payable on the payment of the debt) incurred by the Seller as a result of non-payment of the debt.
(a) The Buyer will pay all transport costs and insurance to deliver the Goods to the Buyer’s premises in the State in which the Buyer trades in the event that minimum orders specified for delivery are not met.
(b) In the event that the Buyer specifies a delivery date, the Seller shall use its best endeavours to comply with the Buyer’s requests. In no circumstances will the Seller be liable for any loss or damage of any kind whatsoever in the event that it is not able to comply with the Buyer’s request for delivery at a certain time. The Buyer acknowledges and agrees that it will not make any claim against the Seller for any loss or damage incurred as a result of late delivery.
(c) Delivery of the Goods to a third party nominated by the Buyer is deemed to be delivery to the Buyer for the purposes of this agreement.
(d) The Buyer shall not be entitled to repudiate the agreement as a result of the failure of the Seller to deliver the Goods.
(a) The Buyer will pay all transport costs and insurance to deliver the Goods to the Buyer’s premises, in the State in which the Buyer trades if minimum orders are not met.
(b) The Seller will not accept any return of Goods unless it has given prior written authorisation for the return and unless the returned Goods are in their original condition and packaging. The Buyer is responsible for payment of any freight or delivery costs to return any Goods to the Seller unless the Seller agrees to pay such costs on the basis that the Goods were delivered in a damaged condition.
(c) Goods will not be accepted for credit unless prior written approval, in the form of a return authorisation (RA) number, has been obtained from the Seller.
(d) A return authorisation (RA) number will be issued and must be included on the outside of the packaging when returned to the Seller. Any items received without clearly visible (RA) number will be returned to sender at their expense.
(e) In the event of damaged Goods the Seller reserves the right to inspect the damaged Goods and may request the Goods to be returned to the Seller.
(f) If the Goods are repairable the Seller will specify an approved repairer and issue a credit of the cost of repair to the Buyer.
(g) Goods must not be returned to the Seller’s agent. Goods must be returned to the Seller’s head office with an authorised (RA) number.
8. JURISDICTION The proper law of all contracts arising between the Seller and the Buyer is the law of the State of Victoria and the parties agree to submit to the jurisdiction of the Courts of that State.
(a) The Seller’s Goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Buyer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. The Buyer is also 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.
(b) All warranties whether expressed or implied and whether statutory or otherwise with regard to the Goods supplied by the Seller as to quality, fitness for purpose or any other matter are hereby excluded except in so far as any such warranties are incapable of exclusion at law.
(c) Where a manufacturers warranty exists then the Buyer may only rely on such warranty and shall not be entitled to rescind or cancel the contract or sue the Seller for damages or claim restitution arising out of any misrepresentation made to him by any servants or agents of the Seller. The Buyer acknowledges that it has relied on its own skill and judgement in deciding to enter into this agreement and has not relied on any representation, condition, warranty, covenant or promise made for and on behalf of the Seller.
(d) Any warranty provided by the Seller shall not cover any defect or damage which may be caused by: (i) Failure on the part of the Buyer to properly maintain any Goods; or (ii) Failure on the part of the Buyer to follow any instructions or guidelines provided by the Seller; or (iii) Any use of any Goods otherwise than for any application specified on any documentation supplied with the Goods; or (iv) The continued use of any Goods after any defect becomes apparent to a reasonably prudent user; or (v) Fair wear and tear, any accident or act of God.
(e) Any warranty provided by the Seller shall be voided in the event that the Goods are repaired or altered or replaced without the Seller’s consent.
10. INTELLECTUAL PROPERTY
(a) The Seller shall retain the copyright in all drawings of any products produced for the Buyer unless otherwise agreed in writing.
(b) If the Buyer provides the Seller with any specifications, designs or drawings for the production or manufacture of any item or items then the Buyer hereby warrants that the use of these designs, drawing or specifications will not infringe any third party’s rights and the Buyer hereby indemnifies the Seller against any claims, demands, suits or actions in relation thereto.
11. RIGHTS OF THE SELLER TO DISPOSE OF GOODS In the event that the Seller retains or regains possession of the Goods ordered by the Buyer and the Buyer has not paid for the Goods within the Seller’s terms of trade then the Seller may dispose of the Goods and may claim from the Buyer any loss the Seller has suffered in relation to same.
12. CHANGE OF OWNERSHIP The Buyer agrees to notify the Seller in writing of any change of ownership of the Buyer within seven (7) days from the date of such change and indemnifies the Seller against any loss or damage incurred by it as a result of the Buyer’s failure to notify the Seller of any change.
13. CANCELLATION Orders placed with the Seller cannot be cancelled without the written approval of the Seller. In the event that the Seller accepts the cancellation of any order placed with it, it shall be entitled to charge a reasonable fee for any work done on behalf of the Buyer to the date of the cancellation including a fee for the processing and acceptance of the Buyer’s order and request for cancellation.
14. LIEN The Buyer hereby acknowledges that the Seller has a lien over all Goods in its possession belonging to the Buyer to secure payment of any or all amounts outstanding from time to time.
15. RETENTION OF TITLE AND PURCHASE MONEY SECURITY INTEREST
(a) The following expressions have the meanings described: “PPSA” means the Personal Properties and Securities Act 2009 (Cth). “Purchase Money Security Interest” has the meaning specified in the PPSA. “Goods” means all Goods supplied by the Seller to the Buyer (and where the context so permits includes any supply of Services). “Services” means any Works or Services carried out in connection with the supply of Goods.
(b) It is agreed by the Seller and the Buyer that property in the Goods shall not pass until: (i) the Buyer has paid all amounts owing for all Goods; and (ii) the Buyer has met all other obligations by the Buyer to the Seller in respect of all contracts between the Seller and the Buyer. (
c) By taking delivery of the Goods, the Buyer grants to the Seller a Purchase Money Security Interest in the Goods or in the event of the sale of Goods the proceeds of the sale (“the Proceeds”).
(d) Until the Seller has been paid in full for all the Goods, the Buyer must;
(i) not dispose of the Goods to a third party except by sale to bona fide buyers for market value in the ordinary course of business;
(ii) not charge the Goods or grant any security over the interest in the Goods or the Proceeds;
(iii) keep any Proceeds separate from other moneys of the Buyer; and
(iv) not deal with the Proceeds in any way which may be adverse to the interests of the Seller.
(e) The following are Events of Default:
(i) the appointment of a liquidator, controller or administrator to the Buyer;
(ii) the commission of an act of bankruptcy by the Buyer;
(iii) a judgment being entered against the Buyer and remaining unsatisfied for more than fourteen (14) days; or
(iv) any breach of the Buyer’s obligations under these terms and conditions.
(f) In the Event of Default the Seller may:
(i) require the Buyer to deliver the Goods to the Seller;
(ii) if the Buyer fails to return the Goods to the Seller within 48 hours of demand thereof, then the Seller or the Seller’s agent may enter upon or into land and premises owned, occupied or used by the Buyer, or any other premises where the Goods are situated, as the invitee of the Buyer and take possession of the Goods, without being responsible for any damage thereby caused and the Buyer hereby agrees to indemnify the Seller in relation thereto; or
(iii) the Seller may take any lawful steps to require payment of all monies due to it by the Buyer including but not limited to the issue of legal proceedings to recover such monies notwithstanding that ownership of the Goods may not have passed to the Buyer.
(a) Pursuant to Section 115 of the PPSA, the Buyer hereby waives the Seller’s obligations to comply with all or any of the sections referred to in Section 115(1) of the PPSA. (b) The Seller hereby waives its right to a verification statement under Section 157 of the PPSA.
17. CHARGE The Buyer hereby charges all its property whatsoever whether currently owned by the Buyer or acquired in the future with its indebtedness to the company.
18. CONSENT TO CREDIT CHECK – PRIVACY ACT The Customer acknowledges and authorises the Seller pursuant to the provisions of the Privacy Act to:-
(a) seek from or give to a Credit Reporting Agency personal information about the Buyer at any time after signing this form; and
(b) contact any trade references or other credit providers and acquire from them or give to them personal information in relation to the Buyer and its credit worthiness.
19. FORCE MAJEURE The Seller will not be in default or breach of any dealing with the Buyer as a result of Force Majeure. Neither party shall be liable for any default due to an act of God, war, terrorism, strike, lockout, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party. Copyright Pending-Collins