Terms
Terms
These Terms and Conditions ("the Terms and Conditions") are the Terms and Conditions upon which Benex Pacific Pty Ltd ("the Supplier") may supply goods and services ("the Goods") to the customer ("the Customer") in response to orders of the Customer.
TERMS INDEX
- Interpretation
- Pricing
- Payment Terms
- General
- Retention of Title
- Delivery of Goods
- Acceptance
- Cancellation
- GST
- Default
- Charging Clause
- Liability of the Supplier
- Severance
- Jurisdiction
- Force Majeure
- Manufacturer's Warranty
1.
1.1.
The headings used in these Terms and conditions do not form part of the Terms and Conditions and are for convenience only.
1.2.
Where the context admits or requires, words importing the singular shall include the plural, those denoting a given gender shall include all other genders and those denoting natural persons shall include corporations.
1.3.
"Agreement" means the agreement between the Supplier and the Customer and includes these Terms and Conditions.
2.
2.1.
Prices in the latest published price list supersede all previously published prices.
2.2.
If you receive a quotation then it shall be open for acceptance by the Customer for a period of one (1) calendar month from the date of quotation.
2.3.
A quotation may be withdrawn at any time by the Supplier giving notice to the Customer of its withdrawal before the Quotation is accepted by the Customer.
3.
3.1.
For Goods manufactured to order, the Supplier may require a deposit or full payment at the time of order placement.
3.2.
Subject to clause 3.1, unless the Customer has a current credit account with the Supplier, payment is made at the time of placement of order.
3.3.
If Customer has a credit account then payment terms are strictly 30 days from invoice date. If the Customer fails to make full payment within 30 days from the date of invoice, interest will be charged at a rate which is 5% per annum above the Commonwealth Bank of Australia's Corporate Overdraft Reference Rate as published in the Australian Financial Review from time to time calculated on daily balances on monies owed by the Customer to the Supplier from the invoice date to both before and (as a separate and independent obligation) after any judgment.
3.4.
The Customer will pay the Supplier for any and all of the Supplier's expenses including but not limited to any legal costs (on an indemnity basis), stamp duties and other expenses payable under these Terms and Conditions together with any collection costs or dishonoured cheque fees incurred in connection with the enforcement of, or the preservation of any rights under these Terms and Conditions. Such costs, duties and other expenses as well as interest payable pursuant to clause 3.3 may be recovered as a liquidated debt.
3.5.
The Customer shall not deduct any amount from the amount due on any Supplier invoice or statement. The Customer shall not make any claim on the Supplier if any amounts are outstanding from the Customer to the Supplier. The Customer is not entitled to set off any amounts owing to the Customer by the Supplier against its outstanding debts to the Supplier.
3.6.
Credit card payments will only be accepted with the prior approval of the Supplier and may be subject to an additional fee.
4.
4.1.
All orders are subject to acceptance by the Supplier.
4.2.
Unless agreed to in writing by the Supplier, any variation of these Terms and Conditions by the Customer deviating from or inconsistent with these Terms and Conditions, is inapplicable.
4.3.
This Agreement and all obligations hereunder shall be binding on the Customer's personal representatives, successors and permitted assigns and shall be for the benefit of the Supplier's successors and assigns.
4.4.
Where the Customer is comprised of two or more persons, companies or other entities then each is jointly and severally liable to pay all monies owed by the Customer to the Supplier.
4.5.
Any waiver of any of these Terms and Conditions by the Supplier shall not be construed as a continuing waiver of that term or condition and the Supplier shall be entitled to require compliance with all of these Terms and Conditions at any time. Any such waiver by the Supplier must be in writing.
5.
5.1.
The Goods shall be at the sole risk of the Customer from the time of the first of the following events:
5.1.1.
dispatch of the Goods from the Supplier's premises;
5.1.2.
collection of the Goods by the Customer or a representative or agent of the Customer (including a carrier engaged by the Customer);
5.1.3.
title in the goods passing to the customer
5.2.
Property and title to the Goods will not pass to the Customer until the Goods and all other amounts owed to the Supplier by the Customer have been paid in full and until then:-
5.2.1.
the Customer will hold the Goods as a fiduciary and bailee for the Supplier;
5.2.2.
the Customer may sell the Goods in the ordinary cause of its business as bailee for the Supplier and will hold the proceeds of sale in a separate account on trust for the Supplier and account to the Supplier for those proceeds; and
5.2.3.
the supplier may require the Customer to return the Goods to it on demand and may enter upon the premises of the Customer to inspect or repossess the Goods;
5.2.4.
the customer shall insure the Goods against theft or any damage until such Goods have been paid for or until they are sold by the Customer which ever occurs first and the Supplier will be entitled to call for details of the insurance policy. If the Customer does not insure the Goods or fails to supply the details of its insurance policy the Customer will reimburse the Supplier for the costs of any insurance which the Supplier may reasonably arrange in respect of the Goods supplied to the Customer.
6.
6.1.
Delivery dates are estimates only. The Supplier will not be responsible for any loss or damage (including consequential loss) however caused arising out of or resulting from late or non-delivery of Goods.
6.2.
The Customer may arrange their own transport, if the Customer does not organise their own transport for delivery of the Goods, the Supplier may, at its own discretion arrange transport of the Goods using Supplier's normal freight network to the location designated by the Customer or in the absence of written direction by the Customer otherwise, to the Customer's usual business address. All delivery charges will be either to the account of the Customer, or will be charged to the Customer in addition to the price for the goods.
7.
7.1.
The Customer must within two (2) business days of delivery inspect the Goods and give the Supplier written notice of damage, shortages or anything else not in accordance with the order place by the Customer.
7.2.
The Customer agrees to keep the Goods referred to in a notice given under clause 7.1 (and in the cause of shortages the remainder of the Goods delivered) in the condition in which they were delivered until the Supplier has inspected them. The Supplier agrees to inspect the Goods as soon as reasonably practicable after receipt of a notice given under clause 7.1.
7.3.
Goods are taken to be delivered as ordered and accepted by the buyer if:-
7.3.1.
the Customer does not give the notice referred to in clause 7.1 with two (2) business days of delivery of the Goods; or
7.3.2.
the Goods referred to in a notice are used or damaged after delivery.
7.4.
The Supplier will endeavour to rectify inaccuracies or short supply within two (2) business days of inspection by the Supplier, but will not be responsible for any loss or damage (including consequential loss) however caused arising out of or resulting from such inaccuracies or short supply.
8.
8.1.
Goods manufactured to order are non-returnable.
8.2.
Subject to clauses 7, 13 and 17, the Supplier is not bound to accept return of the Goods from the Customer except by prior arrangement. If such an arrangement has been made then:-
8.2.1.
the Goods must be returned within 30 days of delivery;
8.2.2.
the Goods must be accompanied by the original invoice or delivery docket;
8.2.3.
any transport costs of returning the Goods must be paid by the Customer;
8.2.4.
an administrative and/or restocking fee of fifteen per cent (15%) may be charged by the Supplier to the Customer; and
8.2.5.
the goods must be in the same condition as they were supplied to the Customer by the Supplier.
8.3.
Goods used, altered or damaged by the Customer are non returnable.
9.
9.1.
In this clause 9 the expressions "GST", "input tax credit", "tax invoice", "recipient" and "taxable supply" have the meanings given to those expressions in the New Tax System, (Goods and Services Tax) Act 1999.
9.2.
With the exception of any amount payable under this clause 9, unless otherwise expressly stated all amounts stated to be payable by the Customer on a quotation, tax invoice or otherwise for Goods supplied under these Terms and Conditions are exclusive of GST
9.3.
If GST is imposed on any supply made under or in accordance with these Terms and Conditions, the recipient of the taxable supply must pay to the Supplier an additional amount equal to the GST payable on or for the taxable supply. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this document, subject to the provision of a tax invoice.
10.
10.1.
If there is any default by the Customer in making payment to the Supplier on any monies owing by the Customer, or if an administrator, liquidator or provisional liquidator or receiver and manager or controller is appointed in respect of the Customer or the Customer goes into bankruptcy or commits any act of bankruptcy, or if there is a breach by the Customer of any of these Terms and Conditions then:-
10.2.
all monies payable by the Customer to the Supplier shall be at the Supplies election become immediately due and payable notwithstanding that the due date for payment of any of the monies shall not have expired;
10.3.
the Supplier may terminate the Agreement forthwith.
11.
11.1.
To secure payment of all monies which are or may become payable by the Customer to the Supplier under this Agreement the Customer (or where the Customer is two or more persons or other entities then each person and other entity jointly and severally) hereby charges with the due payment of all of those monies all of the Customer's interest in real property wherever located both present and future and the Customer consents to the Supplier lodging a caveat or caveats over such property to protect its interest.
11.2.
Upon demand by the Supplier, the Customer agrees to immediately execute a mortgage or other instrument in terms satisfactory to the Supplier to further secure the Customer's indebtedness to the Supplier.
11.3.
Should the Customer fail within a reasonable time of such demand to execute such mortgage or other instrument then the Customer appoints irrevocable the credit manager or a duly authorised officer of the Supplier to be the Customer's lawful attorney to execute any such mortgage or other instrument.
12.
12.1.
If under any law, any terms which apply to the supply of Goods under this Agreement cannot legally be excluded, restricted or modified then those terms apply to the extent required by that law.
12.2.
All terms which would otherwise be implied are excluded except as stated in these Terms and Conditions.
12.3.
To the maximum extent permitted by law the Supplier's sole liability for breach of any term is limited:-
12.3.1.
in the case of Goods supplied by the Supplier, to any one of the following as determined by the Supplier:-
12.3.2.
the replacement of the Goods or supply of equivalent Goods;
12.3.3.
the repair of the Goods;
12.3.4.
the payment of the cost of replacing the Goods or acquiring equivalent Goods;
12.3.5.
the payment of the cost of having the Goods replaced
12.3.6.
in the case of services supplied by the Supplier, to any one of the following:-
12.3.7.
the supplying of the services again;
12.3.8.
the payment of the cost of having the services supplied again.
12.4.
The Customer acknowledges that it has not relied on any representation, warranty or other term made by or on behalf of the Supplier which is not set out in these Terms and Conditions.
12.5.
Except to the extent set out in this clause 13, the Supplier is not liable for any damage, economic loss or loss of profits whether direct , indirect, general, special or consequential:-
12.5.1.
Arising out of a breach of an implied or expressed term of this Agreement; or
12.5.2.
Suffered as a result of the negligence of the Supplier or its employees or agents.
13.
13.1.
In the event that the whole or any part or parts of any clause in this Agreement is found to be unenforceable by a Court then such clause or part thereof shall be to that extent severed from this Agreement without effect to the validity and enforceability of the remainder of this Agreement.
14.
14.1.
This Agreement shall be governed by the relevant state and territory laws and Trade Practices Act.
15.
15.1.
The Supplier shall not be liable for any delay or for the consequences of any delay in performing or failure to perform any of its obligations under this Agreement if such delay is due in full or in part to any cause whatsoever beyond its reasonable control. Such delay or failure shall not constitute a breach of this Agreement and the Supplier shall be entitled at its option to either extend the time for delivery or performance for a reasonable period or to determine the contract without any recourse by the Customer to any claim for damages.
16.
16.1.
During the period of ninety (90) days from the date of delivery of the Goods to the Customer, the Supplier will replace or repair (at the Supplier's discretion) any defective Goods without charge so long as the defect does not arise from:-
16.1.1.
improper adjustment, operation or use of the Goods;
16.1.2.
any modification or adaptation of, or addition to, the Goods;
16.1.3.
exceeding the rated capacity of the Goods;
16.1.4.
misuse of the Goods or operation contrary to the product specifications; or
16.1.5.
inadequate maintenance of the Goods.
