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Jands Pty Ltd – Terms & Conditions of Trade

P6013

Procedures & Policies\Accounts\Terms & Conditions of

Trade ext

Date: 1 October 2012

Version 2

1. Denitions

1.1 “Seller” shall mean Jands Pty Ltd and its successors and assigns.

1.2 “Buyer” shall mean the Buyer or any person acting on behalf of and with the authority of the Buyer.

1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of

the Buyer on a principal debtor basis.

1.4 “Goods” shall mean goods supplied by the Seller to the Buyer (and where the context so permits shall

include any supply of Services as hereinafter dened).

1.5 “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice or

recommendations (and where the context so permits shall include any supply of Goods as dened

supra).

1.6 “Price” shall mean the cost of the Goods as agreed between the Seller and the Buyer subject to clause

4 of this contract.

2. Acceptance

2.1 The Buyer agrees that the Buyer is bound by these terms and conditions and accepts these terms

and conditions without alteration or erasure (including, without limitation, the security agreement

contained in these terms and conditions) by doing any of the following:

(a) signing a document containing these terms and conditions;

(b) signing an order form that refers to these terms and conditions; or

2.2 Where the Buyer comprises more than one person each of those persons shall be jointly and severally

liable for all payments of the Price.

2.3 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable

and can only be rescinded in accordance with these terms and conditions or with the written consent

of the manager of the Seller.

2.4 None of the Seller’s agents or representatives are authorised to make any representations, statements,

conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound

by any such unauthorised statements.

2.5 The Buyer undertakes to give the Seller not less than fourteen (14) days prior written notice of any

proposed change in the Buyer’s name and/or any other change in the Buyer’s details (including but

not limited to, changes in the Buyer’s address, facsimile number, or business practice).

2.6 In the event that the Buyer has entered into a Dealer Agreement with the Seller and there is an

inconsistency between the terms and conditions of that Dealer Agreement and these terms and

conditions, the terms and conditions contained in the Dealer Agreement shall prevail to the extent of

that inconsistency.

3. Goods

3.1 The Goods are as described on the invoices, quotation, work authorisation or any other work

commencement forms as provided by the Seller to the Buyer.

4. Price And Payment

4.1 At the Seller’s sole discretion the Price shall be either;

(a) as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or

(b) the Seller’s quoted Price (subject to clause 4.2) which shall be binding upon the Seller

provided that the Buyer shall accept in writing the Seller’s quotation within thirty (30) days.

4.2 Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation

or any other order forms. If no time is stated then payment shall be on delivery of the Goods.

4.3 A handling fee of $15.00 applies to each order placed with the Seller. The fee is only charged once

per order even if the order is part delivered.

4.4 The Seller may withhold delivery of the Goods until the Buyer has paid for them, in which event

payment shall be made before the delivery date.

4.5 At the Seller’s sole discretion, for certain approved Buyers payment will be due seven (7) days

following the date of the invoice.

4.6 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by direct credit, or by

any other method as agreed to between the Buyer and the Seller.

4.7 The Price shall be increased by the amount of any GST and other taxes and duties which may be

applicable, except to the extent that such taxes are expressly included in any quotation given by the

Seller.

5. Delivery Of Goods / Services

5.1 Delivery of the Goods shall be made to the Buyer’s address. The Buyer shall make all arrangements

necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the

Goods shall be made to the Buyer at the Seller’s address.

5.2 The Seller will deliver the Goods to Accredited Dealer’s Australian business address freight free via

the Seller’s nominated carrier. Goods made to special order and one-off Goods may attract a freight

cost. All other delivery methods are delivered as freight to pay.

5.3 Delivery of the Goods to a carrier, either named by the Buyer or failing such naming to a carrier at the

discretion of the Seller for the purpose of transmission to the Buyer, is deemed to be a delivery of the

Goods to the Buyer.

5.4 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.

5.5 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver

the Goods (or any of them) promptly or at all.

6. Insurance Payments in the Event of Damage

6.1 If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller

is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions

of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive

all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has

become payable under the Contract. The production of these terms and conditions by the Seller is

sufcient evidence of the Seller’s rights to receive the insurance proceeds without the need for any

person dealing with the Seller to make further enquiries.

7. Buyer’s Disclaimer

7.1 The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or

to claim restitution arising out of any misrepresentation made to him by any servant or agent of

the Seller and the Buyer acknowledges that he buys the Goods relying solely upon his own skill

and judgement and that the Seller shall not be bound by nor responsible for any term, condition,

representation or warranty other than the warranty given by the Manufacturer which warranty shall be

personal to the Buyer and shall not be transferable to any subsequent Buyer.

8. Defects / Returns

8.1 The Buyer shall inspect the Goods on delivery and shall within forty-eight (48) hours of delivery notify

the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description

or quote. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable

time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail

to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with

the terms and conditions and free from any defect or damage.

8.2 Subject to clause 10.1, for Goods, which the Seller has agreed in writing that the Buyer is entitled to

reject, the Seller will (at the Seller’s discretion) replace the Goods or repair the Goods (in accordance

with clause 9.4) provided that:

(a) the Buyer has complied with the provisions of clause 8.1;

(b) the Goods are returned at the Buyer’s cost within seven (7) days of the delivery date by the

Seller’s approved carrier;

(d) the Seller will not be liable for Goods which have not been stored or used in a proper manner;

(e) the Goods are returned in the condition in which they were delivered and with all packaging

material, brochures and instruction material in as new condition as is reasonable possible in

the circumstances.

8.3 The Seller may (in its discretion) accept the Goods for credit but this may incur a handling fee of 10%

of the value of the returned Goods plus any freight.

9. Guarantees and Limitation of Liability

9.1 Certain provisions of the Competition and Consumer Act (including, without limitation, the Australian

Consumer Law) and other State, Territory or Commonwealth laws in Australia, as amended or

replaced from time to time, (collectively ACL) apply to the operation of these terms and conditions

and provide consumers (as that expression is used in the ACL) and others with certain rights (referred

to collectively as the consumer guarantees) in relation to goods or services purchased by those

persons.

9.2 Other than consumer guarantees, which are not excluded, modied or restricted by this provision,

the Seller does not give any guarantee or warranty or make any representation of any kind, express or

implied, with respect to the supply by the Seller of any goods or services.

9.3 The Seller guarantees that the Goods that are delivered by the Seller to the Buyer are of acceptable

quality (as that expression is dened in the ACL) on delivery. The Seller may, at the Seller’s expense,

repair any defects in Goods that are notied to Seller in writing by the Buyer in accordance with

clauses 8.1 and 8.2.

9.4 Other than in respect of goods or services supplied to consumers or goods or services that are of a

kind ordinarily acquired for personal, domestic or household use or consumption, the Seller’s liability

for the breach of any condition or warranty, whether express or implied (other than warranties or

conditions in relation to title, encumbrances and quiet possession) is limited, at the Seller’s option,

to:

(a) in the case of goods; the replacement of the goods, the supply of equivalent goods, the repair

of the goods, the payment of the cost of replacing the goods or of acquiring equivalent goods;

(b) in the case of services; the supplying of the services again or the payment of the cost of

having the services supplied again.

9.5 Subject to rights that the Buyer may have under the ACL, which are not excluded, modied or

restricted by this provision, the Seller is not liable to the Buyer or any other person, whether in

contract, tort or otherwise, for any loss or damages (including without limitation specic, indirect,

consequential or economic loss) howsoever caused arising from any event.

10. The Buyer’s Rights under the ACL

10.1 Notwithstanding anything contained in these terms and conditions, nothing in these terms and

conditions:

(a) excludes, restricts or modies or purports to have the effect of excluding, restricting or

modifying any condition or warranty that is implied by, or consumer guarantee specied by,

the ACL or the Seller’s liability under any such condition, warranty or guarantee; or

(b) gives rise to any liability on the Buyer’s part or qualies the Seller’s liability in circumstances

where the Seller is in breach of these terms and conditions, including any conditions or

warranties implied, or consumer guarantees specied, by the ACL.

11. Lien & Stoppage in Transit

11.1 Where the Seller has not received or been tendered the whole of the price, or the payment has been

dishonoured, the Seller shall have:

(a) a lien on the goods;

(b) the right to retain them for the price while the Seller is in possession of them;

has passed; and

(d) a right of resale,

(e) the foregoing right of disposal, provided that the lien of the Seller shall continue despite the

commencement of proceedings or judgement for the price having been obtained.

12. Default & Consequences of Default

12.1 Interest on overdue invoices shall accrue from the date when payment becomes due and shall be

calculated on a daily basis at a rate equivalent to ten percent (10%) per calendar year until the date

payment in full is received by the Seller.

12.2 If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from

and against all of the Seller’s costs and disbursements including on a solicitor and own client basis

and in addition all of the Seller’s nominees costs of collection.

12.3 If the Buyer’s payment is dishonoured by their bank, then the Seller may increase the amount of the

Price by any charges for dishonours charged by the Sellers bankers and the Buyer shall pay the Seller

that amount.

12.4 Without prejudice to any other remedies the Seller may have, if at any time the Buyer is in breach of

any obligation (including those relating to payment), the Seller may suspend or terminate the supply

of Goods to the Buyer and any of its other obligations under the terms and conditions. The Seller will

not be liable to the Buyer for any loss or damage the Buyer suffers because the Seller exercised its

rights under this clause.

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