Definitions
In these Terms and Conditions of Trade:
"Agreement" means any agreement or contract entered into for the provision of goods or services by the Seller to the Customer;
"Customer" means a person, firm or corporation, jointly and severally if there is more than one, acquiring goods or services from the Seller;
"goods" means goods supplied by the Seller to the Customer;
"GST" means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended;
"Seller" means E.T. Performance Products Pty Ltd
ACN 006 497 874;
"services" means services supplied by the Seller to the Customer; and "Terms" means these Terms and Conditions of Sale;
2. Basis of Agreement
2.1 Unless otherwise agreed by the Seller in writing, the Terms apply exclusively to every Agreement and cannot be varied or supplanted by any other condition, including the Customer’s terms and conditions of purchase (if any).
2.2 Any written quotation provided by the Seller to the Customer concerning the proposed supply of goods or services is valid for 30 days and is an invitation to treat only.
2.3 The Terms may include additional terms in the Seller's quotation, which are not inconsistent with the Terms.
2.4 The Agreement is accepted when by the Seller confirms acceptance of an offer from the Customer in writing or electronic means or provides the Customer with the goods or services ordered.
2.5 The Seller in its absolute discretion may refuse to accept any offer.
3. Pricing
3.1 Prices quoted for the supply of goods and services exclude GST and any other taxes or duties imposed on or in relation to the goods and services. In addition to payment of the price of goods and services, the Customer must pay any GST and any other taxes or duties imposed in relation to the goods and services.
3.2 If the Customer requests any variation to an Agreement, the Seller may Increase the price to account for the variation.
3.3 Where there is any change in the costs incurred by the Seller in relation to the goods or services, the Seller may vary its price for the goods or services in order to take account of any such change, by notifying the Customer.
4. Payment
4.1 Subject to clause 4.2, payment for the goods or services must be made within 30 days from the date of invoice.
4.2 The Seller reserves the right to require payment in full on or before delivery of the goods or completion of the services.
4.3 Payment by cheque is not deemed made until the proceeds of any cheque have cleared.
5. Payment Default
5.1 If the Customer defaults in payment by the due date of any amount payable to the Seller, then all money which would become payable by the Customer to the Seller at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and the Seller may, without prejudice to any other remedy available to it:
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4 per cent for the period from the due date until the date of payment in full;
(b) charge the Customer for, and the Customer must indemnify the Seller from, all costs and expenses (including without limitation all Legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Terms or to recover
any goods;
(c) cease or suspend for such period as the Seller thinks fit, supply of any further goods or services to the Customer;
(d) by notice in writing to the Customer, terminate any contract with the Customer so far as unperformed by the Seller; without effect on the accrued rights of the Seller under any contract.
5.2 Clauses
5.1(c) and (d) may also be relied upon, at the option of the Seller:
(a) where the Customer is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of creditors or any class of creditors generally; or
(b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
6. Passing of Property
6.1 Until full payment in cleared funds is received by the Seller for all goods and services supplied by it to the Customer, as well as all other amounts owing to the Seller by the Customer:
(a) title and property in all goods remain vested in the Seller and do not pass to the Customer;
(b) the Customer must hold the goods as fiduciary bailee and agent for the Seller;
(c) the Customer must keep the goods separate from its goods and maintain the labelling and packaging of the Seller;
(d) the Customer is required to hold the proceeds of any sale of the goods on trust for the Seller in a separate account, however, failure to do so will not affect the Customer's obligation to deal with the proceeds as trustee; and
(e) the Seller may without notice, enter any premises where it suspects the goods may be and remove them, notwithstanding that they may have been attached to other goods not the property of the Seller, and for this purpose the Customer irrevocably licences the Seller to enter such premises and also indemnifies the Seller from and against all costs, claims, demands or actions by any party arising from such action. | 7. Risk and Insurance
7.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods will pass to the Customer immediately on the goods being despatched from the Seller’s premises.
7.2 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use or possession of any of the goods sold by the Seller, whether such goods are used singularly, or in combination with other substances or processes.
8. Selection of goods and services
8.1 The Customer agrees that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by the Seller in relation to the goods or services or their use, fitness for purpose or application;
(b) it has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Customer or any contemplated use by the Customer, whether or not such use is known by the Seller and meet with all relevant applicable standards and regulatory bodies before use or on-sale;
(c) Any description of the goods and services provided in a quotation or invoice is given by way of identification only and the use of such description does not constitute a contract of sale by description.
9. Delivery
9.1 The Customer is responsible for all costs associated with delivery, including freight, insurance and other charges arising from the point of dispatch of the goods to the Customer to the point of delivery.
9.2 Any period or date for delivery of goods or provision of services stated by the Seller is intended as an estimate only and is not a contractual commitment. The Seller will use its reasonable endeavours to meet any estimated dates for provision of the goods or services.
10. Liability and Indemnity
10.1 Except as specifically set out herein, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
10.2 Replacement of the goods, the cost of replacement of goods or resupply of services is the absolute limit of the Seller's liability howsoever arising under or in connection with the sale, use, storage or any other dealings with the goods or services by the Customer or any third party.
10.3 The Seller is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or anyliability to any other party.
10.4 The Seller will not be liable for any loss or damage suffered by the Customer where the Seller has failed to deliver goods or services or fails to meet any delivery date or cancels or suspends the supply of goods or services.
10.5 Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
11. Cancellation
11.1 If, through circumstances beyond the control of the Seller, the Seller is unable to effect delivery or provision of goods or services, then the Seller may cancel the Customer's order (even if it has already been accepted) by notice in writing to the Customer, without prejudice to the Seller’s entitlement to payment of any accrued transport or carrier charges.
11.2 No purported cancellation or suspension of an order or any part of it by the Customer is binding on the Seller after that order has been accepted.
12. Miscellaneous
12.1 The laws of Victoria, Australia from time to time governs the Terms and the parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
12.2 Failure by the Seller to enforce any of these Terms shall not be construed as a waiver of any of the Seller’s rights.
12.3 If any of the Terms are unenforceable it shall be read down so as to be enforceable or, if it cannot be so read down, the condition shall be severed from these Terms without affecting the enforceability of the remaining conditions.
12.4 A notice must be in writing and handed personally or sent by facsimile or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile are deemed received on the facsimile machine confirming transmission.
13. Privacy
13.1 The Seller is bound by the Privacy Act 1988 and takes steps to ensure that all personal information obtained in connection with the Customer will be appropriately collected, stored, used, disclosed and transferred in accordance with the National Privacy Principles. Such information may be accessed by request to the Seller in accordance with the Privacy Act.
13.2 The Seller requires that the Customer comply with the National Privacy Principles in connection with any personal information supplied to it by the Seller in connection with this Agreement.
1. Catalogue Details
1.1 The prices, part numbers and product details are correct at the time of printing but are subject to change without notice. |
