Terms and Conditions
1. Buyers Statutory Rights. These terms and conditions of sale shall not exclude, limit, restrict or modify the rights, entitlements and remedies conferred upon the Buyer or the liabilities imposed upon the Seller, by any condition or warranty implied by a Commonwealth State or Territory Act or Ordinance, rendering void or prohibiting such exclusive, limitation, restriction or modification.
2. Warranties. The Seller undertakes that the Goods shall be of the quality and kind specified in its standard specification for goods of the description ordered and no other warranty condition or representation on the part of the Seller is given or implied by the Seller, all statutory and other warranties conditions express or implied of any nature whatsoever including but without limiting the generality of the foregoing any warranties conditions or presentation as to the state, quality or fitness of the Goods for any purpose or the performance of the Goods or any part thereof or the results that ought to be expected from using the Goods are hereby expressly negative and excluded except where the Competition and Consumer Act (Cwlth) and /or the Australian Consumer Law (Cwlth).
3. Advice. Subject to Condition 1, any advice, recommendation, information, assistance or service provided by the Seller in relation to goods sold or manufactured by it or their use or application is given in good faith and is believed by the Seller to be appropriate and reliable. However, any advice, recommendation, information assistance or service provided by the Seller in relation to any Goods supplied by the Seller is provided without liability or responsibility on the part of the Seller.
4. Delivery
(a) The Seller will make all reasonable efforts to have Goods delivered to the Buyer on the date agreed between the parties as the Delivery Date, but the Seller shall be under no liability whatsoever should delivery not be made on this date.
(b) Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered at any time within Ninety Days (90) of the delivery date.
(c) The Buyer must notify the Seller within 24 hours of delivery of any short fall in or loss or damaged goods delivered. Failure to so notify shall, subject to the requirements of any Prescribed Terms, disentitle the Buyer to any remedy in respect to the shortage, loss or damage.
(d) The Buyer must provide photographic evidence of any damaged goods, including packaging, in the condition it has been delivered in, and be received within 24 hours of delivery.
(e) The Seller will not accept return of goods any later than 14 days after the date of delivery or as agreed in writing with the Seller.
5. Risk. The risk in the purchased shall unless otherwise agreed in writing pass to the Buyer upon delivery to the Buyer or his Agent or to a Carrier commissioned by the Buyer.
6. Property
(a) In spite of delivery having been made, property in the Goods shall remain with the Seller and the Seller reserves the right to dispose of the Goods until such time as full payment is made for all amounts owing by the Buyer to the Seller so that the Buyers total indebtedness to the Seller under these Conditions of Sale is discharged.
(b) Notwithstanding that the Goods (or any of them) remain the property of the Seller; the Buyer may sell or use the Goods in the ordinary course of the Buyer’s business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s own behalf and the Buyer shall act as principal when making such sales or dealings. Until property in the Goods passes from the Seller, the entire proceeds of sale or otherwise of the Goods shall be held on trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money.
(c) If the Buyer fails to pay an amount of the Buyer’s total indebtedness to the Seller under these Conditions of Sale when it is due to the Seller or, in the event that a default as specified in sub-clause (d) hereof occurs, the Seller may without notice and without prejudice to any of its other rights and remedies recover and/or re-sell the Goods or any of them and may enter upon any premises owned, occupied or controlled by the Buyer where the Goods are situated by its servants or agents for that purposes.
(d) Notwithstanding the provisions of these Conditions of Sale and in particular clause 8 hereof payment shall become due immediately upon the Buyer (being a natural person) committing any act of bankruptcy or the Buyer (being a company) committing any act which entitles any person to apply to wind indebtedness any of the Goods which are the property of the Seller.
(e) Until full payment the Buyer shall store the Goods separately from all other goods in its possession and marked in a way that clearly manifests the Seller’s title.
(f) The Buyer acknowledges that until his total indebtedness under these Conditions of Sale to the Suppler is discharged he holds the Goods as bailee for the Seller and that a fiduciary relationship exists between them.
7. Price. The price charged shall be the price ruling at the date of delivery unless otherwise agreed in writing.
8. Payment and Default. Unless otherwise agreed expressly in writing the terms of payment shall be net monthly or as agreed with the Seller, on or before the date as per the Statement of Account which is issued by the Seller. If the Buyer fails to make payment for the Goods in accordance with this contract of sale or commits any other breach of this contract of sale or if any distress or execution shall be levied upon any of the Buyer’s goods or if the Buyer offers to make any arrangements with its creditors or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or being a limited company passes a resolution for winding up (except for the purpose of reconstruction) or a petition is presented for its winding up or if any of the events referred to in Section 461 of the Corporations Act 2001 occur then all monies owing and outstanding to the Seller on any account whatsoever and irrespective of whether the due date as per the Statement of Account has occurred shall become immediately due and payable. In addition the Seller may without prejudice to its other rights, either suspend further deliveries require payment in advance for all such deliveries or terminate any contract forthwith by written notice to the Buyer.
9. Containers. Containers in which Goods are delivered and for which a deposit charge is made, remain the property of the Seller and must not be used for any other commodity than that contained therein at the time of delivery. On their turn in good order and condition by the Buyer and Buyers expense to the factory or store of the Seller from which the Goods were delivered the full amount of the deposits will be repaid to the Buyer.
10. Pallets. At all times the Seller retains the right of possession of any pallets used for delivery of the Goods and the Buyer agreed to indemnify the seller in respect of any pallets not returned in good order and condition to the Seller within 28 days of deliver of the Goods.
11. Force Majeure. Deliveries may be totally or partially suspended by the Seller during any period in which the Seller may be prevented or hindered from delivering by the Seller’s normal means of supply or delivery by normal route through any circumstances outside the seller’s reasonable control, including but not limited to strikes, lockouts, raw material shortages, shipping delays, accidents or breakdowns of plant or machinery. The Seller shall not incur any liability to the Buyer in respect of such suspension.
12. Interest. Without prejudice to any other rights or remedies that the Seller may have against the Buyer, the Buyer agrees that in the event of any default by the Buyer in payment to the Seller in accordance with the terms hereof the Buyer shall pay the Seller interest on the amount outstanding from time to time at the rate of eighteen percent (18%) per annum calculated on daily interest from the due date for payment and all outstanding moneys together with all interest shall be recoverable forthwith from the Buyer
13. These terms and conditions are governed by the laws of the State of Queensland and all disputes between the Buyer and the Seller will be subject to the Courts of that State.
Glossary
“Buyer” – Company or person that places an order with the Seller.
“Seller” – Rubbedin Pty Ltd - A.C.N. 113 888 850 - Unit 1, 43 Neumann Road, Capalaba, QLD 4157
“Goods” – Any products supplied by the Seller to the Buyer.
“Date of delivery” – The date that the Goods are dispatched from the Seller’s stores.