Terms & Conditions

A.B.N: 28 070 635 568 – Effective 1 July 2010

Conditions of Sale

1. DEFINITIONS

“Conditions” means these Terms and Conditions of Trade; “Customer” means the person of company placing an order for the purchase of Goods from the Seller; “Goods” means all goods and/or service supplied by the Seller pursuant to an Order; “Order” means an order placed by a Customer with the Seller written or verbal, for the supply of Goods; “Purchase Price” means the price of the Goods exclusive of GST; “Seller” means DJS Qualicoaters Pty. Ltd (ABN 28 070 635 568). These Conditions apply to all Orders for the supply of Goods placed by a Customer with the Seller. No additional or different terms or conditions will be binding upon the Seller unless specifically agreed to in writing.

3. QUOTATIONS

The Seller’s quotation and tenders are subject to change and Goods are Subject to availability at any time prior to the Seller’s acceptance of the Customer’s order. Fixed prices must be expressly confirmed as such by the Seller in writing.

4. IMPLIED CONDITIONS AND WARRANTIES

Those Conditions do not purport to exclude those conditions and warranties implied by law into contracts for the supply of goods, however to the fullest extent permitted by the law all other terms, conditions, warranties and representations, whatsoever and howsoever made are excluded from these Conditions except those expressly stated.

Any suggestion by the Seller or the Seller’s agents regarding use, application or suitability of the Goods shall not be construed as an express warranty unless confirmed to be such in writing by the Seller.

Where the customer has a credit or other account with the Seller, these Conditions shall be in addition to and not in substitution of the Seller’s terms and conditions of credit.

5. ORDER FOR GOODS

Once an order has been placed with the Seller it cannot be cancelled or varied by the Customer without the consent of the Seller.

The Seller may accept or reject any Order in whole or part.

Where Goods are made to the Customer’s own specifications, or if the Customer supplied materials and such specifications or materials prove or be inaccurate or otherwise unsuitable for the manufacture of the Goods, the Seller may charge the Customer and the Customer shall be responsible for payment of any additional costs incurred by the Seller in correcting or modifying or otherwise adjusting the Goods to meet the actual requirements of the Customer.

6. PURCHASE PRICE & TERMS OF PAYMENT

Unless otherwise agreed in writing the Purchase Price is exclusive of packing costs, GST, freight charges, delivery costs, bank charges and such other charges notified by the Seller to the Customer all of which costs if incurred are payable by the Customer(“Price Additions”).

Payment of the Purchase Price and any Price Additions (collectively, “Total Price”) shall be made to the Seller for the Goods before the end of the month of the invoice (“due date”) in the case of sale on credit terms and unless otherwise stated on the invoice this shall be deemed the due date.

If payment of the Total Price is not made as herein provided the Seller may charge interest on the amount outstanding at the rate of 1.5% per calendar month on the outstanding balance of the Total price from the due date until the full amount of the Total Price has been paid by the Customer.

The Customer shall have no right of set-off with alleged counter-claims. Any assignment of the Customer’s counter-claims to a third party without Seller’s prior written consent shall be void.

The Customer agrees to reimburse the Seller or any costs and expenses (including legal fees on a full indemnity basis) incurred in connection with the collection of any amounts owed to the Seller under these Conditions. Such costs and expenses shall constitute a debt due forthwith upon demand by the Seller to the Customer.

If the Customer fails to make any payment on the due date or becomes bankrupt or enters into liquidation, voluntary administration or has a receiver or receiver and manger appointed to its property, undertaking or any part thereof the Seller shall have the option to withhold or cancel further deliveries provided that failure on the part of the Seller to exercise such option in respect to one or more deliveries shall not affect its right to exercise it in respect of other deliveries.

7. DELIVERY

Unless otherwise stated in the Contract, the Goods shall be delivered to and unloaded at the Customer’s premises at the sole cost of the Customer. Delivery of the Goods shall be deemed to be effected when the Goods are unloaded from the delivery vehicle and the delivery manifest is signed by the receiver. If the Buyer or his/her representative or agent is unavailable to sign or does not sign the delivery advise, then the driver’s records shall be conclusive evidence of the delivery at the time and place shown in the driver’s records.

If it stated in the Contract that the Goods are sold ex works or ex Seller’s store or warehouse then the Customer shall at its cost and risk collect and take delivery of Goods from the works or from the Seller’s store or warehouse as the case may be, within the time agreed or in the event of no time being agreed within a reasonable time. The Seller’s only obligation as to delivery shall be to have the Goods ready for despatch within the time agreed or a reasonable time as the case may be.

Where this Contract states that Goods are to be delivered by instalments each instalment shall deemed to be sold under a separate contract. If the Seller fails to deliver an instalment within the time stated on the contract or to deliver at all, the Buyer shall not be entitled to repudiate the contract with regard to any other instalments remaining to be delivered.

If no address is nominated then the Goods shall be delivered to the Customer’s place of business. The choice of carrier and method of transport remains with the Seller, unless the transport is paid for by the Customer. All delivery dates are estimates only.

If the Customer is responsible for any shipment delay, Seller’s written notification to the Customer that the Goods ordered are ready for shipping shall constitute delivery to the Customer, and all further risk of loss or damage as well as all costs for handling transportation and storage shall be borne by the Customer.

The Seller shall not be liable for any damages as a result of any delay or failure to deliver due to any cause beyond the Seller’s reasonable control, including without limitation, any act of God, act or failure to act of the Customer, embargo or other government act, regulation or request, fire, accident, strike, slowdown, war, riot, delay in transportation or inability to obtain necessary labour, materials or manufacturing facilities.

If the costs to the Seller of supplying the Goods not yet delivered are increased materially by any dispute or cause and the parties concerned cannot agree on how such increase shall be borne, the Seller may cancel the Contract without liability in respect of such undelivered Goods.

8. RISK

The Customer accepts the Goods and the Goods are at the Customer’s risk immediately upon leaving the Seller‘s premises, whether the Goods are delivered by the Seller or by somebody other than the firm or collected by the Customer. If the Customer wishes to insure against loss or damage to the Goods after they have left the Seller’s premises, it shall be the Customer’s responsibility to do so.

9. FORCE MAJEURE

In the event that any circumstance beyond the control of the parties and in particular without prejudice to the foregoing, acts of God of the public enemy, fire, explosion, earthquake, lightning, storm, hurricane, failure of public service, perils of the sea, flood, drought, war, riots, sabotage, accident, embargo, government policy, shortage, or failure of supply of materials or equipment form normal sources for manufacture of the Goods, labour disputes or strikes (“Force Majeure”) in consequence of which the Seller is prevented, impeded or suffers interference with the delivery of, or the Customer is prevented, impeded or suffers interference with the acceptance of the Goods, then neither the Seller nor the Customer shall have any claim against the other for any direct or indirect or consequential loss, injury or damage which shall include, but not be limited to, any loss of trade or profit which may be caused or sustained by either party or any third party. However, the affected party shall, upon the occurrence of any such cause, promptly inform the other party in writing, stating such cause has delayed or prevented its performance hereunder and thereafter such affected party shall take all actions within its power to comply with the terms of any contract and these Conditions as fully and promptly as possible.

If either party is unable to perform its respective obligations under these Condition for a continuous period of sixty (60) days by reason of Force Majeure then both parties, in utmost good faith, shall enter into discussions with a view to agreeing on such adjustments as may be mutually acceptable to continue the operation of any contract and these Conditions. If the parties can not mutually agree on the continuation of any contract and these Conditions, either party may terminate any contract or agreement between the parties. Termination will be without prejudice to the rights and obligations accrued to the date of termination.

10. ACCEPTANCE OF GOODS

Unless the Customer notifies the Seller in writing seven (7) days from the date of delivery that:

the Goods are not in conformity with the Order;
the Goods do not correspond with any sample where the Goods are sold by sample;
the Goods contain a defect which renders them unmerchantable;

The Customer shall be deemed to have accepted the Goods. The Customer shall be deemed to have inspected the Goods upon delivery. Upon Delivery in this clause means prior to fabricating, cutting, installing, or in any other way changing the nature of the Goods delivered.

11. RETURNS

The Customer may only return Goods to the Seller for credit if:

the prior written approval of the Seller for the return has been obtained and the freight costs on the return have been paid by the Customer.

If the Customer returns the Goods otherwise than in accordance with Clause 11(a):

the Seller may at its sole discretion accept the return and grant a credit to the Customer;

If the Seller does not accept the return the Customer may hold the Goods on the Customer’s behalf at the Customer’s expense until arrangements satisfactory to the Seller are made by the Customer for the disposal of the Goods.

A credit given by the Seller for Goods returned by the Customer and accepted by the Seller is subject to a re-stocking feet equivalent to 15% of the Total price of the Goods.

12. TITLE

Ownership in the goods supplied by the Seller to the Customer will not pass to the Customer until the Customer has paid all monies owing by the Customer to the Seller under these Conditions or any other agreement subsisting between the Customer and the Seller for the supply of Goods or services; or
The Customer shall be deemed to hold the Goods as bailed for the Seller and the Customer agrees to store the Goods on behalf of the Seller so that they are clearly identifiable as the Seller’s property until ownership of the Goods passes pursuant to clause12 (a).

If ownership in the Goods has not passed to the Customer in accordance with clause 12(a), without prejudice to any other rights including any rights the Seller may have against the Customer under this invoice or any other agreement subsisting between the Customer and the Seller for the supply of Goods or service , the Seller will be entitled to:

Enter premises where Goods supplied by the Seller to Customer are stored and sold and repossess the Goods (whether they have been paid for the Customer or not) without liability for trespass or any resulting damage; and retain the Goods or sell the Goods to a third party.

The Seller will be entitled to exercise its rights pursuant to clause 12(a) notwithstanding that:
any debt or sum owed by the Customer to the Seller is not related to Goods to which that debt or sum relates; and neither the Seller nor the Customer is able to identify which of the Goods have not been paid for by the Customer.

Notwithstanding clause 12(a), risk in the Goods pass to the Customer on delivery of the Goods to Customer by the Seller.

15. LIABILITY OF SELLER

The Seller shall not be subject to any other obligations or liabilities, whether arising out of breach of contract, warranty, tort (including negligence and strict liability), or other theories of law, with respect to the Goods sold by the Seller, or undertakings, acts or omissions relating thereto.

Under no circumstances will the Seller be liable for any incidental or consequential damage, or for any other loss, damage or expense of any kind, including loss of profits, arising in connection with these Conditions or with the use or liability to use the Seller’s Goods furnished under these Conditions. The Seller’s sole liability and the Customer’s sole remedy is limited to either:

repair or replacement of defective Goods; and/or
At the Seller’s option, discount of Purchase Price.

The Customer agrees to cause its customers and anybody in the chain of manufacturing, supply and distribution including the end customer to be bound by limitations of liability substantially equivalent to those contained in these Conditions.

The seller assumes no liability as to any intellectual property right infringement by virtue of the use of the Goods manufactured to the Customer’s specifications. The Customer shall hold the Seller harmless. Indemnify and keep indemnified the Seller against all specifications proposed or furnished by the Customer such as liability under the laws of patent, trade mark, trade name, copyright, or trade secret, and from any claim of contributory infringement or patent, trade mark, trade name, copyright or trade secret resulting from the use or resale by the Customer of the Goods sold hereunder by the Seller to the Customer.

16. CONTINUING INDEMNITIES

The indemnities contained in these Conditions are continuing indemnities and shall survive the expiration or termination of any agreement between the parties relating to the supply of Goods.

17. GOVERNING LAW

Any contract with the Seller shall be deemed to have been executed and entered into the State of NSW, Australia and the same shall be construed, enforced and performed in accordance with the laws thereof. Any proceedings shall be brought and heard in the courts of the state of NSW.

18. SEVERABILITY

If any one or more of the provisions of these Conditions becomes invalid, illegal or unenforceable in any respect by any reason, the validity, legality and enforceability of any such provisions in every other respect and of the remaining provisions of these Conditions shall not be in any way impaired.

19. COMPLETE AGREEMENT

These Conditions and the Seller’s acceptance from (if any) constitute the complete and exclusive statement of the agreement between the parties hereto. It supersedes all prior written and oral statements, including prior representations, statements, conditions or warranties. These Conditions may not be amended or altered without the written consent of the Seller.

20. NON WAIVER

A Waiver by the Seller with respect to any breach or default by the Customer shall not constitute waiver of any other breach or default or of any other right or remedy. A failure or delay by the Seller in exercising a right or remedy does not operate as a waiver of that right or remedy.

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