Ozice Australia Pty Ltd – Terms & Conditions of Trade
1. Definitions
1.1 “Supplier” shall mean Ozice Australia Pty Ltd and its successors and assigns. 1.2 “Client” shall mean the Client or any person acting on behalf of and with the authority of the Client. 1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Client on a principal debtor basis. 1.4 “Goods” shall mean goods supplied by the Supplier to the Client (and where the context so permits shall include any supply of Services as hereinafter defined). 1.5 “Services” shall mean all services supplied by the Supplier to the Client and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above). 1.6 “Price” shall mean the cost of the Goods as agreed between the Supplier and the Client subject to clause 4 of this contract. 2. Acceptance 2.1 Any instructions received by the Supplier from the Client for the supply of Goods and/or the Client’s acceptance of Good s supplied by the Supplier shall constitute acceptance of the terms and conditions contained herein. 2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price. 2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Supplier. 2.4 None of the Supplier’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Supplier in writing nor is the Supplier bound by any such unauthorised statements. 2.5 The Client undertakes to give the Supplier not less than fourteen (14) days prior written notice of any proposed change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). 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 Supplier to the Client. 4. Price And Payment 4.1 At the Supplier’s sole discretion the Price shall be either; (a) as indicated on invoices provided by the Supplier to the Client in respect of Goods supplied; or (b) Supplier’s quoted Price (subject to clause 4.2) which shall be binding upon the Supplier provided that the Client shall accept in writing the Supplier’s quotation within thirty (30) days. 4.2 Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Supplier’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion. 4.3 At the Supplier’s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of the Goods and shall become immediately due and payable. 4.4 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. 4.5 The Supplier may withhold delivery of the Goods until the Client has paid for them, in which event payment shall be made before the delivery date. 4.6 At the Supplier’s sole discretion, payment for approved Client’s shall be due thirty (30) days following the end of the month in which a statement is posted to the Client’s address or address for notices. 4.7 At the Supplier’s sole discretion, for certain approved Clients payment will be due seven (7) days following the date of the invoice. 4.8 Payment will be made by cash on delivery, or by cheque, or by credit card (subject to a processing fee of 3% of the transaction value), or by direct credit, or by any other method as agreed to between the Client and the Supplier. 4.9 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 Supplier. 5. Delivery Of Goods / Services 5.1 Delivery of the Goods shall be made to the Client’s address. The Client 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 Client at the Supplier’s address. 5.2 Delivery of the Goods to a carrier, either named by the Client or failing such naming to a carrier at the discretion of the Supplier for the purpose of transmission to the Client, is deemed to be a delivery of the Goods to the Client. 5.3 The costs of carriage and any insurance which the Client reasonably directs the Supplier to incur, shall be reimbursed by the Client (without any set-off or other withholding whatever) and shall be due on the date for payment of the Price. The carrier shall be deemed to be the Client’s agent. 5.4 The Supplier may deliver the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this contract of sale. 5.5 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement. 5.6 The failure of the Supplier to deliver shall not entitle either party to treat this contract as repudiated. 5.7 The Supplier shall not be liable for any loss or damage whatever due to failure by the Supplier to deliver the Goods (or any of them) promptly or at all. 6. Risk 6.1 If the Supplier retains property in the Goods nonetheless, all risk for the Goods passes to the Client on delivery. 6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Client, the Supplier 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 for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries. 7. Client’s Disclaimer 7.1 The Client 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 Supplier and the Client acknowledges that he buys the Goods relying solely upon his own skill and judgement. 8. Defects / Returns 8.1 The Client shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Supplier of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Client shall afford the Supplier an opportunity to inspect the Goods within a reasonable time following delivery if the Client believes the Goods are defective in any way. If the Client 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 The Supplier may (in its discretion) accept the Goods for credit but this may incur a handling fee of 15% of the value of the returned Goods plus any freight. 9. Warranty 9.1 Subject to the conditions of warranty set out in Clause 9.2 the Supplier warrants that if any defect in any workmanship of the Supplier becomes apparent and is reported to the Supplier within three (3) months of the date of delivery (time being of the essence) then the Supplier will either (at the Supplier’s sole discretion) repair the defect or remedy the workmanship. 9.2 The conditions applicable to the warranty given by Clause 9.1 are: (a) The warranty shall not cover any defect or damage which may be caused or partly caused by or arise through: i) Failure on the part of the Client to properly maintain any Goods; or ii) Failure on the part of the Client to follow any instructions or guidelines provided by the Supplier; or iii) Any use of any Goods otherwise than for any application specified on a quote or order form; or iv) The continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or v) Fair wear and tear, any accident or act of God. (b) The warranty shall cease and the Supplier shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Supplier’s consent. (c) In respect of all claims the Supplier shall not be liable to compensate the Client for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Client’s claim. 9.3 For Goods not manufactured by the Supplier, the warranty shall be the current warranty provided by the Supplier of the Goods. The Supplier shall not be bound by nor responsible for any term, condition, representation or warranty given by the Supplier of the Goods. 9.4 In the case of second hand Goods, the Client acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by the Supplier as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Supplier shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising. 10. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts 10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable. 11. Intellectual Property 11.1 Where the Supplier has designed or drawn Goods for the Client, then the copyright in those designs and drawings shall remain vested in the Supplier, and shall only be used by the Client at the Supplier’s discretion. 11.2 The Client warrants that all designs or instructions to the Supplier will not cause the Supplier to infringe any patent, registered design or trademark in the execution of the Client’s order. 12. Default & Consequences Of Default 12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% compounding per calendar month and shall accrue at such a rate after as well as before any judgement. 12.2 If the Client defaults in payment of any invoice when due, the Client shall indemnify the Supplier from and against all the Supplier’s costs and disbursements including on a solicitor and own client basis and in addition all of the Supplier’s nominees costs of collection. 12.3 Without prejudice to any other remedies the Supplier may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Supplier may suspend or terminate the supply of Goods to the Client and any of its other obligations under the terms and conditions. The Supplier will not be liable to the Client for any loss or damage the Client suffers because the Supplier exercised its rights under this clause. 12.4 If any account remains unpaid at the end of the second month after supply of the Goods or Services an immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable. 12.5 In the event that: (a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Client will be unable to meet its payments as they fall due; or (b) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client, then without prejudice to the Supplier’s other remedies at law: (i) the Supplier shall be entitled to cancel all or any part of any order of the Client which remains unperformed in addition to and without prejudice to any other remedies; and (ii) all amounts owing to the Supplier shall, whether or not due for payment, immediately become payable in addition to the interest payable under clause 12.1 hereof. 13. Title 13.1 It is the intention of the Supplier and agreed by the Client that property in the Goods shall not pass until: (a) The Client has paid all amounts owing for the particular Goods, and (b) The Client has met all other obligations due by the Client to the Supplier in respect of all contracts between the Supplier and the Client, and that where practicable the Goods shall be kept separate until the Supplier shall have received payment and all other obligations of the Client are met. 13.2 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Supplier’s ownership of rights in respect of the Goods shall continue. 13.3 It is further agreed that: (a) Until such time as ownership of the Goods shall pass from the Supplier to the Client the Supplier may give notice in writing to the Client to return the Goods or any of them to the Supplier. Upon such notice the rights of the Client to obtain ownership or any other interest in the Goods shall cease. (b) The Supplier shall have the right of stopping the Goods in transit whether or not delivery has been made; and (c) If the Client fails to return the Goods to the Supplier then the Supplier or the Supplier’s agent may enter upon and into land and premises owned, occupied or used by the Client, or any premises as the invitee of the Client, where the Goods are situated and take possession of the Goods. (d) The Client is only a bailee of the Goods and until such time as the Supplier has received payment in full for the Goods then the Client shall hold any proceeds from the sale or disposal of the Goods on trust for the Supplier. (e) The Client shall not deal with the money of the Supplier in any way which may be adverse to the Supplier. (f ) The Client shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Supplier. (g) The Supplier may require payment of the Price or the balance of the Price due together with any other amounts due from the Client to the Supplier arising out of these terms and conditions, and the Supplier may take any lawful steps to require payment of the amounts due and the Price. (h) The Supplier can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Client. (i) Until such time that ownership in the Goods passes to the Client, if the Goods are so converted, the parties agree that the Supplier will be the owner of the end products. 14. Security And Charge 14.1 Despite anything to the contrary contained herein or any other rights which the Supplier may have howsoever: (a) Where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Supplier or the Supplier’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Client and/or the Guarantor acknowledge and agree that the Supplier (or the Supplier’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met. (b) Should the Supplier elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Client and/or Guarantor shall indemnify the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis. (c) To give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the Client and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Supplier or the Supplier’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Supplier and/or the Supplier’s nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Client and/or the Guarantor in any land, realty or asset in favour of the Supplier and in the Client’s and/or Guarantor’s name as may be necessary to secure the said Client’s and/or Guarantor’s obligations and indebtedness to the Supplier and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Supplier’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause. 15. Cancellation 15.1 The Supplier may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Supplier shall not be liable for any loss or damage whatever arising from such cancellation. 15.2 At the Suppliers sole discretion the Client may cancel delivery of Goods. In the event that the Client cancels delivery of Goods the Client shall be liable for any costs incurred by the Supplier up to the time of cancellation. 16. Privacy Act 1988 16.1 The Client and/or the Guarantor/s agree for the Supplier to obtain from a credit-reporting agency a credit report containing personal credit information about the Client and Guarantor/s in relation to credit provided by the Supplier. 16.2 The Client and/or the Guarantor/s agree that the Supplier may exchange information about Client and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes: (a) To assess an application by Client; (b) To notify other credit providers of a default by the Client; (c) To exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and (d) To assess the credit worthiness of Client and/or Guarantor/s. 16.3 The Client consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988). 16.4 The Client agrees that Personal Data provided may be used and retained by the Supplier for the following purposes and for other purposes as shall be agreed between the Client and Supplier or required by law from time to time: (a) provision of Services & Goods; (b) marketing of Services and/or Goods by the Supplier, its agents or distributors in relation to the Services and Goods; (c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services/Goods; (d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and (e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services and Goods. 16.5 The Supplier may give information about the Client to a credit reporting agency for the following purposes: (a) to obtain a consumer credit report about the Client; and/or (b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client. 17. Unpaid Supplier’s Rights 17.1 Where the Client has left any item with Supplier for repair, modification, exchange or for the Supplier to perform any other Service in relation to the item and Supplier has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Supplier shall have: (a) a lien on the item; (b) the right to retain the item for the Price while the Supplier is in possession of them; (c) a right of resale, (d) the foregoing right of disposal, provided that the lien of the Supplier shall continue despite the commencement of proceedings or judgement for the Price having been obtained. 18. General 18.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. 18.2 All Goods supplied by the Supplier are subject to the laws of Victoria and the Supplier takes no responsibility for changes in the law which affect the Goods supplied. 18.3 The Supplier shall be under no liability whatever to the Client for any indirect loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Supplier of these terms and conditions. 18.4 In the event of any breach of this contract by the Supplier the remedies of the Client shall be limited to damages. Under no circumstances shall the liability of the Supplier exceed the Price of the Goods. 18.5 The Client shall not set off against the Price amounts due from the Supplier. 18.6 The Supplier may license or sub-contract all or any part of its rights and obligations without the Client’s consent. 18.7 The Supplier reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Supplier notifies the Client of such change. 18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
