1.1 The expression “the Company” when referred to in these Terms and Conditions, refers to Draagroik Pty Ltd.
1.2 “Goods” shall mean Goods supplied by the Company to the Purchaser (and where the context so permits shall include any supply of Services as hereinafter defined).
1.3 “Purchaser” shall mean the Purchaser or any person acting on behalf of and with the authority of the Purchaser.
2.1 These Terms and Conditions of Sales apply to sales of goods manufactured or supplied by the Company.
2.2 Any instructions received by the Company from the Purchaser for the supply of Goods and/or the Purchaser’s acceptance of Goods supplied by the Company shall constitute acceptance of the terms and conditions contained herein.
2.3 Upon acceptance of these terms and conditions by the Purchaser the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Company.
2.4 Each order placed by the Purchaser shall be & be deemed to be a representation by it, made at the time that it is solvent & able to pay all of it’s debts as & when they fall due. Failure to pay the Company in accordance with these terms shall be & be deemed to be conclusive evidence that the Purchaser had no reasonable grounds for making the representation hereof & that the representations were unconscionable, misleading and deceptive.
3.1 The Goods are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Company to the Purchaser.
Any quotation by the Company is not to be construed as an offer or obligation to sell and the Company reserves the right, at its option, to accept or reject any orders received.
All prices charged/quoted shall be the Company’s prices ruling as at the date of despatch. Verbal quotations are subject to written confirmation which will be given when requested.
The Company reserves the right at any time to make reasonable adjustments of prices in relation to fluctuations in the Company’s cost of labour, material, goods or transport and also in relation to any changes in currency exchange rates or duty which affect the Company’s costs for imported goods.
Unless expressly noted all prices charged/quoted are exclusive of GST. All government imposts of GST or any equivalent as separately itemised on the company’s invoices are to be paid by the Purchaser.
6. CANCELLATION OR VARIATION
A contract may, at the Company’s option, be terminated in the event of insolvency of the Purchaser or the Purchaser being placed in liquidation, whether voluntarily or otherwise. The Company shall not be liable for any less or damage arising from such cancellation.
A Purchaser may only vary an order if such variation is accepted by the Company in writing and any variation or cancellation may only occur on terms which will provide for the Company to be indemnified by the Purchaser against any loss or damages.
Unless otherwise indicated prices include standard cases or packing.
Unless otherwise stated in writing the price quoted is ex the Company’s business premises. Where delivery is requested beyond this point the Company may, at its discretion, agree to act as agent for the Purchaser in this matter and all costs for cartage and insurance will be for the Purchaser’s account.
9. TERMS OF PAYMENT
9.1 Unless agreed to in writing to the contrary, or stated on the invoice, all goods shall be paid for in full by the Purchaser at the time of collection or delivery of the goods.
9.2 The Company reserves the right to deliver and invoice any item or items comprising the whole or part of any order. Failure of the Company to deliver any part of an order shall not entitle the Purchaser to repudiate the contract.
9.3 Interest on overdue or unpaid invoices shall accrue from the date when payment becomes due daily until the date of payment at the rate of 17.5% per annum, compounding monthly.
10.1 The following conditions relating to the return of goods for credit apply to all goods returned for this purpose.
10.1.1 Goods returned must be accompanied by a Delivery Docket stating original invoice number, returned material authorised number, date of purchase and reason for return.
10.1.2 Non-standard equipment made to special order cannot be credited under any circumstances.
10.1.3 Inward freight packing and delivery charges are the responsibility of the Purchaser.
10.1.4 Goods will only be accepted for credit to the extent of that wrongly or over-supplied.
10.2 All returns must be in good order and condition, unused and in original packaging.
10.3 No claims by the Purchaser need be recognised unless made in writing within seven (7) days after delivery of the goods to the Purchaser. No claim for damage or resultant expense direct or indirect in respect of any goods shall in any case exceed the invoice price of the goods in respect of any damages or expense shall arise. All damage or expense over and above such invoice price shall be the responsibility of the Purchaser.
11. CONDITIONS AND WARRANTIES – LIMITATION OF LIABILITY
11.1 The only warranty supplied in respect of the products is the warranty supplied by the actual manufacturer. The actual manufacturer’s warranty is in addition to any rights available to consumers under the Trade Practices Act 1974 (Cth) or similar State or Territory legislation (“statutory provisions”). Nothing contained herein shall be read or applied so as to purport to exclude, restrict or modify or have the effect or excluding, restricting or modifying the application of all or any of the statutory provisions which by law cannot be excluded, restricted or modified.
11.2 Except as required by the statutory provisions, all express or implied warranties and conditions are excluded to the maximum extent permitted by law. Without limiting the foregoing, the Company does not warrant that the products are fit or suitable for any purpose or that the products are of merchantable quality.
11.3 The Purchaser acknowledges that neither the Company nor any person purporting to act on behalf of the Company has made any representation or given any promise or undertaking which is not expressly set out herein as to the fitness of the goods for any particular purpose or any other matter.
11.4 It is the Purchaser’s sole responsibility to ensure that:
11.4.1 the goods are suitable for the proposed application and the Company accepts no liability and provides no warranty as to the suitability of the goods for the required purpose; and
11.4.2 the goods are used and operated by persons qualified and trained to use the goods and using appropriate safety equipment and practices.
11.5 Except as required by the statutory provisions, the Company shall not be liable for any direct, indirect or consequential loss or damage howsoever caused (including the negligence or carelessness of the Company, it employees, servants or agents) arising from the supply of the products.
12. TITLE TO GOODS
12.1 The Company shall retain title to all goods supplied by it to the Purchaser until it has received payment in full of all sums due in connection with the supply of all Goods by the Company to the Purchaser at any time. In the case of payment by cheque, bill of exchange or note, title shall not pass to the Purchaser until the same is honoured.
12.2 In the event that any of the Goods are incorporated into or attached to, or mixed with, other goods by the Purchaser, so that they are no longer identifiable or separable, then title to the composite goods shall vest in and be retained by the Company in accordance with paragraph 12.1.
12.3 The Purchaser shall store all Goods and any composite goods owned by the Company (“Company’s Goods”) in such a way that they are clearly identifiable as the Company’s property, and shall maintain and allow the Company to inspect reorders of the Company’s Goods, identifying them as the Company’s property, and of the persons to whom it sells or otherwise supplies the Company’s Goods or any of them and of payments made by such persons for the Company’s Goods.
12.4 If payment for any Goods is overdue, the Company is entitled without prejudice to any of its other rights and remedies, to repossess the Company’s Goods and to enter into any premises upon which the Company’s Goods are stored, without notice, for this purpose.
12.5 Until such time as the Company receives payment in full for any Goods, if the Purchaser sells or receives any payment from a Purchaser or insurer in respect of the Company’s Goods, the proceeds of any such sale or disposition any insurance proceeds (or claim thereof) shall be held by the Purchaser in trust for the Company and paid into a separate bank account which shall not be overdrawn or otherwise dealt with without the Company’s prior written consent.
12.6 Nothing in paragraphs numbered 12.1 to 12.5 inclusive shall affect the Company’s rights as an unpaid creditor.
Risk in the goods purchased shall, unless otherwise agreed in writing, pass to the Purchaser upon delivery of the goods to the Purchaser or his agent or to a carrier commissioned by the Purchaser.
To the best of the Company’s knowledge goods sold to the Purchaser will not infringe any patent, trade mark, registered design or copyright of any third party but the Company shall in no circumstances be liable to the Purchaser in respect of any such infringement constituted by the sale or use of the goods.
15. PERFORMANCE AND REPRESENTATION
Any figures or estimates given for performance of goods are based upon the Company’s experience and are such as the Company would expect to obtain on test. But the Company will only accept liability for failure to obtain the figures or estimates given when such figures or estimates are guaranteed in writing within specified margins.
The Purchaser acknowledges that neither the Company nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in the contract whether as to the fitness of the goods for any particular purpose or any other matter.
16. RECOVERY OF COSTS
The Purchaser will pay to the Company any costs and expenses incurred by it or it’s solicitors, legal advisers, mercantile agents and other parties acting behalf on a solicitor and own client basis in respect of anything instituted or being considered against the Purchaser whether for debt, possession of any goods or otherwise