J A & J M Puppa family trust T/A Gemini Uniforms & Cutlery
1.1 “Seller” shall mean J A & J M Puppa Family trust T/A Gemini Uniforms and Cutlery and its successors and assign.
1.2 “Buyer” shall mean the buyer or any person acting on behalf of and with the authority of the buyer. Where more than one buyer has entered into this agreement, the buyer shall be jointly and severally liable for all payments of the price.
1.3 “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the buyer if a Limited Liability Buyer or principle 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 defined).
1.5 “Services” shall mean all services supplied by the Seller to the Buyer and includes any advice recommendation (and where the context so permits shall include any supply of Services as defined supra).
1.6 “Price” shall mean the cost of Goods as agreed between the Seller and the Buyer subject to clause 4 of this contract.
2.1 Any instructions received By the Seller by the Buyer for the supply of Goods and/or the Buyers acceptance of services and/or Goods supplied by the seller shall constitute acceptance of the terms and conditions herein.
2.2 Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms & conditions or with the written consent of the manger of the Seller
2.3 None of the Seller’s agents or representatives are authorised to make any representatives, statements, conditions or agreements not expressed by the manager of the Seller bound by any such unauthorised statements.
3.1 The goods shall be as described on the invoice , quotation, work authorisation sales order or any other work commencement forms as provided by the Seller to the Buyer.
3.2 Where the Buyer has agreed to purchase the Goods by the way of “Laybuy”, the the Buyer and Seller agree to abide by all regulations of any acts or laws that govern the purchase of Goods by “laybuy”.
4. Prices And Payment
4.1 At the sellers sole discretion;
a) The price shall be as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or
b) The Price shall be the Sellers current price at the date of delivery of the Goods according to the sellers current price list; or
c) The price of the goods shall, subject to clause 4.2, he the Sellers quoted Price at which shall be binding upon the Seller’s quotation within thirty (30) days.
4.2 Any variation of the planned scheduled works or specifications will be charged for on the basis of the Sellers quotation and will be shown as extras on the invoice. Payment for all extras must be made in full at their time of completion.
4.3 At the sellers sole discretion a deposit may be required. The deposit amount or the percentage of the price will be stipulated at the time of order of the Goods/Services and shall become immediately due and payable.
4.4 Time for payment for the Goods/Services shall be 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 Goods/Services.
4.5 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.
4.6 At the Seller’s sole discretion, payment for approved Buyers shall be due on thirty (30) days following the end of the month in which an invoice is posted to the Buyers address or addresses for notices.
4.7 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Buyer and the Seller.
4.8 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 buyers 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 Sellers address.
5.2 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.
5.3 The costs of carry and any insurance which the Buyer reasonably directs the Seller to incure shall be reimbursed by the Buyer (without set-off or other withholding whatever) and shall be due on the date for payment of the Price.. The carrier shall be deemed by the buyer agent.
5.4 Where there is no agreement that the Seller shall send the Goods to the Buyer, delivery to a carrier at limited carrier’s risk at the expense of the Buyer is deemed to be delivery to the Buyer.
5.5 The Seller may deliver the Goods by a 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.
5.6 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.
5.7 The buyer shall take delivery of the Goods tendered now withstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that;
a) Such discrepancy in quantity shall not exceed 10% and
b) The Price shall be adjusted pro rate to the discrepancy.
5.8 The failure of the Seller to deliver shall not entitle either party to treat this contact as repudiated.
5.9 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 at all.
6.1 If the Seller retains property in the Goods nonetheless, all risk for the Goods passes to the Buyer on delivery.
6.2 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 of 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 wether or not the price had become payable under the contract. The production of these Terms and Conditions by the Seller is sufficient evidence of the Sellers rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further inquires.
7. Buyer Disclaimer
7.1 The Buyer hereby disclaires 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 or 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/Return of Goods
8.1 The Buyer shall inspect the Goods on delivery and shall within seven (7) days of the delivery notify the Seller in writing 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 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 For defective Goods which the Seller has agreed to in writing that the Buyer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods provided that:
a) The Buyer has complied with the provision in clause 7.1;
b) The Goods are returned at the Buyers cost within seven (7) days of the delivery date;
c) The Seller will not be liable for the Goods which have not be stored or used in a proper manor;
d) 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.
The Seller may (in its discretion) accept the Goods for credit but this may incur a handling fee of 20% of the value of the returned Goods plus any freight.
9.1 For goods not manufactured by the Seller the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever except for the express conditions as detailed and stipulated in the manufacturers warranty.
9.2 In the case of second hand Goods the Buyer 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 Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Seller shall not be responsible for any loss or damage to the goods, or caused by the Goods, or any part thereof however arising.
9.3 Notwithstanding clause 9.2 the Seller warrant that if any defect in any workmanship on second-hand Goods reconditioned by the Seller becomes apparent and is reported to the Seller within three (3) months of the date if delivery (time being of the essence) then the Seller will (at the Seller sole discretion) repair the defect or replace the workmanship.
9.4 The conditions applicable to the warranty given by clause 9.3 are:
a) The warranty shall not cover any defect or damage which may be caused or partly caused by or through the arise through.
i. Failure on 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 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 Seller shall thereafter in no circumstances be liable under the terms or the warranty if the workmanship is repaired , altered or overhauled without the Seller’s consent.
c) In respect of all claims the Seller shall not be liable to compensate the Buyer for any delay in either replacing or repairing the workmanship/Goods or in any property assessing the Buyers claim.
10. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
10.1 Nothing in this agreement is intended to have affect on any 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 Seller has designed or drawn Goods for the Buyer, then the copyright in those designs and drawings shall remain vested in the seller, and shall only be used by the Buyers at the Sellers discretion.
11.2 Conversely, in such a situation, where the Buyer has supplied drawings, the Seller in its sale conditions may look for indemnity (the specifications and design of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller).
11.3 Where any designs or specifications have been supplied by the Buyer for manufacture by or to the order of the Seller then the Buyer warrants that the use of those designs or specifications for the manufacturer, processing, assembly, or supply of the Goods shall not infringe the rights of any third party.
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% per calender month and shall accrue at such a rate after as well as before any adjustment.
12.2 If they Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all the Seller’s cost and disbursements including on a solicitor and own Buyer basis and in addition all of EC Credit Control Pty Ltd’s costs of collection.
12.3 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 obligations under the terms and conditions. The Seller will not be liable to the Buyer of any loss or damage the Buyer suffers because the Seller exercises its rights under this clause.
12.4 If any account remains unpaid at the end of the second month after the supply of the goods or services the following shall apply. An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum will come immediately due and payable.
12.5 In the event that:
a) Any money payable to the Seller becomes overdue, or the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
b) The Buyer 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 Buyer or any asset of the Buyer;
Then without prejudice to the Seller’s other remedies at law.
i. The Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and
ii. All amounts owing to the Seller shall, wether or not due for payment, immediately become payable.
13.1 It is the intention of the Seller and agreed by the Buyer that property in the Goods shall not pass until
a) The Buyer has paid all amounts owing for the particular Goods; and
b) The Buyer has met all other obligations due by the Buyer to the Seller in respect of all objects between the Seller and the Buyer, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Seller shall have received payment and all other obligations by the Buyer are met.
13.2 It is further agreed that:
a) The Buyer shall not deal with the money of the Seller in any way which may be adverse to the seller,
b) Until such time as ownership of the goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
c) If the Buyer fails to return the Goods to the Seller then the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the buyer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
d) Receipt by the Seller or 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 the Seller’s ownership of rights in respect of the Goods shall continue.
e) The Buyer 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 Seller.
f) The Seller may require payment of the Price or balance of the Price due together with any other amounts due from the Buyer to Seller arising out of these terms and conditions, and the Seller may take lawful steps to require payment of the amounts due and the Price.
g) The Seller can issue proceedings to recover the Price of the Goods sold now withstanding that ownership of the Goods may not have passed to the Buyer.
h) Until such time the Buyer has the Seller’s authority to convert the Good’s into other products and if the Good’s are converted, the parties agreed that the Seller will be the owner of the end products.
14. Security and Charge
14.1 Notwithstanding anything to the contrary contained herein or any other rights which the Seller may have howsoever:
a) Where the Buyer and/or the Guarantor (if any) is the owner of the land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge of their joint and/or several interest in the joint land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Buyer and/or Guarantor acknowledge and agree that the Seller (or the Seller’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 Seller select to proceed in any manor in accordance with this clause and/or sub-clauses, the Buyer and/or guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursenments including legal costs on a solicitor and own Buyer basis.
c) To give effect to the provisions of clause [14.1)(a) and (b)] inclusive hereof he Buyer and/or the guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller’s nominee, namely EC Credit Control Pty Ltd Limited as the Buyer’s and/or Guarantor true and lawful attorney to execute mortgages and charges (whether registrable or not) including each others terms and conditions as the Seller and or EC Credit Control Pty Ltd Limited shall think fir in his/hers/its/theirs absolute discretion against the joint and/or several interest of the Buyer and or the Guarantor in any land, reality or asset in favour of the Seller and in the Buyer’s and/or Guarantor’s name as may be necessary to secure the said Buyer’s and/or Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and to further execute all or any documents in the Sellers absolute discretion which may be necessary or advantage give effect to the provisions of this clause.
15.1 The seller may cancel these terms and conditions or cancel delivery of Goods at any time before the goods are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatever arises from such cancellation.
16. Privacy Act 1988
16.1 The buyer and/or the Guarantor/s agree for the Seller to attain from a credit reporting agency a credit report containing personal credit information about the Buyer and the Guarantor/s in relation to credit provided by the Seller.
16.2 The Buyer and/or the Guarantor/s with those credit provided named the application for credit account or named in a consumer credit report issued by the reporting agency for the following purposes:
a) To access a application by Buyer;
b) To notify other credit providers by the Buyer;
c) To exchange information with other credit provides as to the status of this credit account, where the Buyer is in default with other credit providers; and
d) To access the credit worthiness of Buyer and/or guarantor/s
16.3 The Buyer consents to the Seller being given a consumer credit report to collect over due payment on commercial credit (section 18.k (1)(h) Privacy Act 1988).
16.4 The buyer agrees the personal data provided may be used and retained by the Seller for the following purposes and for the other purposes as shall be agreed between the Buyer and Seller or required by law from time to time:
a) Provision of Services and Goods;
b) Marketing of Services and/or Goods by the Seller, its agents, or distributors in relation to the Services and Goods;
c) Analysing, verifying and/or checking the Buyers credit, payment and/or status in relation to provisions of Services/Goods;
d) Processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Buyer; and
e) Unbarring the daily operation of Buyers account in relation to the Services and Goods
16.5 The Seller may give, information about the Buyer to a credit reporting agency for the following purposes:
a) To attain a consumer credit report about the Buyer; and/or
b) Allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.
17. Unpaid Sellers Rights To Dispose Of Goods
17.1 In the event that:
a) The Seller retains possession or control of the Goods; and
b) Payment of the price is due to the Seller; and
c) The Seller has made demand in writing of the Buyer for payment of the Price in terms of this contract; and
d) The Seller has not received the Price of the Goods, then, whether the property in the Goods has passed to the Buyer or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Buyer the loss to the Seller on such disposal.
18. Lien & Stoppage in Transit
18.1 Where the Seller has not received or been tendered the whole of the price, all the payment has been dishonoured, the Seller shall have:
a) Lien on the Goods;
b) The right to retain them for the price while the Seller is in Possession of them;
c) A right of stopping the Goods in transit whether or not delivery has been made or ownership has passed; and
d) The right to 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.
19.1 If any provision of these terms and conditions shall be invalid, void all illegal or unforceable the validity existence, legally and enforceabillity of the remaining provisions shall not be affected, prejudiced or impaired.
19.2 All Services/Goods supplied by the Seller are subject to the laws of Victoria and the Seller takes no responsibility for changes in the law which affect the Services/Goods supplied.
19.3 The Seller shall be under no liability whatever to the Buyer for any indirect loss and/or expense (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these terms and conditions.
19.4 In the event of any breach of this contract by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of Goods.
19.5 The Buyer shall not set off against the Price amount due from the Seller.
19.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyers consent.
19.7 The Seller 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 Seller notifies the Buyer of such change.
19.8 Neither shall be liable for any default due to any act of God, War, terrorism, strike, lockout, industry action, fire, flood, drought, storm, or other event beyond the reasonable control of either party.