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TERMS AND CONDITIONS OF TRADE (8/2007)
To the fullest extent legally possible all contracts, dealings and/or arrangements made between Gunnersen Pty Ltd ABN 35 004 051 003 and each of its subsidiaries, affiliates, associated companies and related entities (“Gunnersen”) and any Customer ("Customer") relating to any products, services or transactions are subject to the following Terms and Conditions of Trade ("these Terms") unless otherwise agreed in writing.
1. Payment:
a) Payment is to be by cash, cheque, or Electronic Funds Transfer without set-off or deduction of any kind, within 30 days from the end of month of invoice.
b) Gunnersen may apply a payment received from the Customer to any amounts owed by the Customer (including interest, part payment of an invoice, administration, collection and other costs) in any order.
c) Gunnersen is entitled to set-off or deduct any amount payable by Gunnersen to the Customer.
2. Interest: will be charged on overdue accounts at the rate under the Penalty Interest Rates Act 1983 (Vic), plus an additional 2%.
3. Property:
a) Property in products shall not pass until payment in full of all monies (“Full Payment”) owed for those products or on any other basis by the Customer to Gunnersen who reserves the right to take possession and dispose of products as it sees fit at any time until full payment.
b) Gunnersen reserves the right to take possession and dispose of goods as it sees fit at any time until Full Payment and the Customer grants permission to Gunnersen to enter any property where any product is in order to do so with such force as necessary.
c) Immediately upon delivery the Customer accepts liability for the safe custody of the products.
d) Upon sale or disposition of any products prior to Full Payment, the Customer agrees to hold the proceeds Upon Trust for Gunnersen , deposit all proceeds in a separate bank account, agrees not to mix proceeds with any other monies and will forthwith account to Gunnersen therefore even if Gunnersen may have granted any credit facility and/or time to pay.
e) Until payment in full the Customer agrees:
(i) to keep all products unpaid for as fiduciary for Gunnersen and store them in a manner showing Gunnersen as owner;
(ii) only to sell products in the usual course of business on condition that the Customer holds all proceeds in trust for Gunnersen ; and
(iii) sale on terms or for cost or less than cost shall not be "in the usual course".
f) This clause 3 is not intended to create a charge and shall be read down to the extent necessary to avoid creating a charge.
g) If the Customer uses or incorporates any products in any production, process or any manufacture or combines them with anything to create a finished or combined new thing for disposition by the Customer, then upon such disposition prior to full payment the Customer agrees to hold such part of the proceeds thereof (and until payment is received by the Customer, that part of any applicable book debt of the Customer) as equals the costs of the products used and/or incorporated therein (at the prices invoiced by Gunnersen to the Customer for those products) Upon Trust for Gunnersen until Full Payment.
4. Limitation Of Liability:
a) The Customer agrees to limit any claim upon Gunnersen to the cost of re-supply of equivalent products or the supply of services again.
b) Gunnersen shall not be liable for any claim (whether for loss or expense or otherwise) which is made after 14 days from date of delivery or services (or at all once products have been unpacked, on-sold or otherwise used or applied) after which there shall be deemed unqualified acceptance.
c) Gunnersen will not be liable for any contingent consequential direct indirect special or punitive damage arising in any way, whether due to negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly.
d) No other term, condition, agreement, warranty, representation or understanding whatsoever whether express or implied in any way extending to, relating to or binding upon Gunnersen Timbermark, other than these Terms, is made or given.
5. Exclusions:
a) Sample: No contract between Gunnersen and the Customer shall be or be deemed to be a sale by sample or description.
b) If Gunnersen publishes material concerning its prices, anything so published which contradicts these Terms is excluded.
c) The Customer will rely on its own knowledge and expertise in selecting any product or services for any purpose.
d) Advice or assistance given for or on behalf of Gunnersen shall be accepted at the Customer's risk and shall not be or be deemed to be given as expert or adviser nor to have been relied upon by the Customer.
6. Placement Of Orders:
a) If any dispute arises over any order (including any question of identity, authority or any telephone, facsimile, computer or e-mail order) the internal records of Gunnersen will be conclusive evidence of what was ordered.
b) Each order placed shall be and be deemed to be a representation made by the Customer at the time that it is solvent and has the present and future ability to pay all of its debts as and when they fall due.
c) Failure to pay in accordance with these Terms shall be and be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representations in clause 6.b) and that the representations were unconscionable, misleading and deceptive.
d) With each order placed, the Customer shall inform Gunnersen of any material facts which would or might reasonably affect any decision to accept the order and/or grant credit in relation to it. Failure to do so shall create and be deemed to create an inequality of bargaining position, shall be and be deemed to be taking an unfair advantage of Gunnersen and to be unconscionable, misleading and deceptive.
7. Purchase Price:
a) All sales are made by Gunnersen at its ruling price at time of delivery.
b) Government imposts, GST etc ("imposts") will be paid by the Customer.
c) Gunnersen Timbermark's price lists exclude imposts unless expressly identified as such in any price list.
8. Delivery: The Customer acknowledges and agrees that:
a) Gunnersen accepts no responsibility or duty for delivery but may elect to arrange delivery at its discretion without any liability and at the Customer's costs and responsibility in all things.
b) Gunnersen reserves the right to charge for any delivery.
c) The Customer shall be deemed to have accepted delivery and liability for the products immediately Gunnersen notifies the Customer that any products are ready for collection or they are delivered to a carrier or to the Customer's business premises or site whether attended or not.
d) A certificate purporting to be signed by an officer of Gunnersen confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket.
e) Gunnersen will not be liable for delay, failure or inability to deliver any products or perform any services.
f) Once the Customer is notified products are ready for collection or delivery, the Customer agrees to pay all costs of Gunnersen in holding products for the Customer.
g) The Customer shall provide reasonable and proper access to any site specified for delivery and council approved crossing facilities.
h) The Customer agrees to pay all costs and expenses arising from frustrated or delays in delivery.
i) The Customer shall be responsible for any damage, costs (including clean-up costs) or fines caused in the course of delivery whether to footpaths or to any other property.
j) Gunnersen may unilaterally delay, cancel or suspend any delivery for any period or cancel any agreement for sale without any liability to any party.
9. Returns:
a) If Gunnersen elects to take back product it must be in as new and saleable condition and upon terms agreed and a re-stocking fee of not less than 20% of invoice value will apply.
b) Custom made or custom processed products or products acquired specifically for the Customer will not be returnable at all.
10.Other Terms and Conditions:
a) No terms and conditions sought to be imposed by the Customer upon Gunnersen shall apply, unless otherwise agreed in writing.
b) The Customer will be deemed to have notice of any change to these Terms immediately Gunnersen adopts them.
11. Products and Services:
a) Gunnersen disclaims any responsibility or liability relating to any products or services:
(i) made or performed to designs, drawings, specifications and/or procedures etc or with materials which are provided or approved by or on behalf of the Customers; or
(ii) utilised, stored, handled or maintained incorrectly or inappropriately.
b) The Customer agrees to check all products and services for compliance with all applicable standards and regulatory bodies before use, on-sale or application and to use or apply same in accordance with all applicable standards, regulations and guidelines, with all manufacturer's, processor's and/or Gunnersen's recommendations and directions as well as with good commercial practice.
c) Delamination, Failure etc: The Customer acknowledges that laminated, veneered, plywood and decorated products sold are not manufactured or processed by Gunnersen and accepts all risks associated with any delamination or failure.
d) The Customer agrees to check all products and services prior to use, alteration or any application thereof whether in relation to suitability for any particular purpose, process or otherwise.
e) Timber: The Customer acknowledges that Gunnersen timber product has (inter alia) the following characteristics:
(i) it is a natural product and variations in colour, texture and inherent quality occur;
(ii) it is susceptible to changes in quality, structural strength, appearance, finish and/or colour due to mistreatment, poor storage, poor handling, inadequate, uninformed and/or inappropriate preparation, treatments, installation or use and by exposure to the elements, chemicals, sunlight and foreign materials etc;
(iii) it is susceptible to bending, warping, crushing, swelling, discolouration, delamination and fungal growth etc., if not stored or used properly;
(iv) it is susceptible to damage and size variations which may be caused (inter alia) by relative humidity and/or moisture content as well as those things set out in 11 d)(ii) above;
(v) it may contain or be treated with poisons and/or potentially toxic chemicals (formaldehyde, preservatives, adhesives etc.) and should be stored and worked upon in well ventilated areas with proper exhaust systems and not burned; and
(vi) product related dust and saw dust are inherently dangerous if inhaled.
12. Recovery Costs: The Customer will pay to Gunnersen the costs and expenses incurred by it or its solicitors, legal advisers, mercantile agents and other parties acting on Gunnersen's behalf in respect of anything instituted or being considered against the Customer whether for debt, possession of any products or otherwise.
13. Attornment: To give effect to the Customer's obligation under these Terms, the Customer hereby irrevocably appoints any solicitor or Credit Manager of Gunnersen from time to time, as its attorney in all things.
14. Variation or cancellation of these Terms or any orders must be in writing and agreed between the parties.
15. Defaults:
a) On any default or breach by the Customer of any part of these Terms or any dealing with or obligation to Gunnersen, Gunnersen may elect to retain all monies paid, call up all monies unpaid, cease further deliveries, recover from the Customer all loss of profits and take immediate possession of any product, without prejudice to any other of its rights and without liability to any party.
b) The Customer agrees not to commence or continue or permit to be commenced or continued any action against Gunnersen whilst the Customer is in default under any part of these Terms;
c) If the Customer on-sells any product, the Customer agrees to pay to a Stakeholder nominated by Gunnersen , the cost price incurred or payable by Gunnersen for the acquisition of the product for supply to the Customer (estimated at 75% of the amount invoiced to the Customer by Gunnersen ), before the Customer is entitled to take any step in any proceedings commenced by Gunnersen for payment for that product. The Customer agrees that this clause may be pleaded as a bar to any action by the Customer until payment to the Stakeholder has been made. The Stakeholder nominated is authorised to invest the moneys at 30 day call with any major banking institution in Australia. The money so held to be applied in accordance with any appropriate Court determination or agreement between the parties resolving the proceedings.
16. Severability: Any part of these Terms is capable of severance without effecting any other part of these Terms.
17. Customer Restructure: The Customer will notify Gunnersen in writing of any change in its structure or management including any change in director, shareholder or management or change in partnership or trusteeship and of the sale of any part of its business, within 7 days of any such change or sale. Until notice of sale is given, the Customer guarantees payment to Gunnersen for any purchases by any purchaser of any part of its business.
18. Jurisdiction: The Customer agrees that all contracts made with Gunnersen shall be deemed to be made in the State/Territory nominated by Gunnersen and agrees to submit to the jurisdiction of the Courts in or nearest the Capital of that State/Territory.
19. Credit Limit: If Gunnersen grants a credit facility or nominates a credit limit, this is an indication of its intention at the time. Gunnersen can vary or withdraw any credit facility at any time, without liability to the Customer or any other party.
20. Waiver: If Gunnersen elects not to exercise any of its rights arising as a result of any breach of any part of these Terms, this shall not constitute a waiver of any rights of Gunnersen relating to any subsequent or other breach.
21. Notice:
a) The Customer agrees that it will be deemed to have notice of any change to these Terms immediately they are adopted by Gunnersen, whether or not the Customer has actual notice.
b) The Customer shall be bound by any terms and conditions of trade adopted by Gunnersen immediately they are so adopted, notwithstanding any other purported, pre-existing or other terms and conditions.
22. Indemnity: The Customer indemnifies Gunnersen against any claim or loss arising from or related in any way to any dealing between Gunnersen and the Customer or anything arising therefrom, including any liability arising under the Trade Practices Act and any relevant Occupational Health and Safety laws or arising as a result of or subsequent to any breach of these Terms.
23. Security For Payment:
The Customer:
a) agrees on written request to charge in favour of Gunnersen:
(i) by way of a fixed charge, all its books of account goodwill documents of title and current and later acquired real and intellectual property; and
(ii) by way of a floating charge the whole of the Customer’s other undertakings, property and assets with Full Payment.
b) grants a lien to Gunnersen over any of its property in the possession or control of Gunnersen until Full Payment.
24. Partial Delivery/Forward Orders: If the Customer places a forward order the Customer agrees:
a) to pay for so much of any order as is from time to time delivered by Gunnersen Timbermark;
b) no delay or failure to fulfil any part of any order shall entitle the Customer to cancel or vary any order or delay or reduce any payment.
25.Force Majeure: Gunnersen will not be in default or in breach of any contract with the Customer as a result of Force Majeure. Force Majeure means anything beyond the reasonable control of Gunnersen and includes any strike or lock-out.
26.Insolvency:
a) If the Customer commits or is involved in any act of insolvency, it agrees that this should be deemed in default under these terms.
b) An act of insolvency is deemed to include bankruptcy, liquidation, receivership, administration or the like.
27. Pallets etc: The Customer will return all pallets and any other re-useable packaging or delivery material provided by Gunnersen and indemnifies Gunnersen for the full replacement cost of any which are not returned to Gunnersen promptly and in good condition.
28. Ability to Supply: The Customer agrees that Gunnersen will not be liable for any delay in supply or availability of any products, and may allocate products as between Customers at its absolute discretion.
29. Acceptable Variation: The Customer will accept variation in quantities at plus or minus 5% and will pay pro-rata for the actual quantity delivered.
30. Exports of any goods are governed by these Terms and all international trade conventions and/or terms are expressly excluded.
31. No Set-off or Counter Claim will be made or applied by the Customer until payment in full of all bona fide invoices raised by Gunnersen (whether current or overdue) and this clause may be pleaded as a bar to any action taken prior to such payment in full.
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