Terms and Conditions

Definitions

“Additional Charges” includes all delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Price, payable by the Customer to Seller arising out of the sale of the Goods.

“Customer” means the person to or for whom the Goods are to be supplied by the Seller and whose details appear on the invoice attached to these Terms of Trade.

“Goods” means the goods sold to the Customer by the Seller and described in the invoice attached to these Terms of Trade.

“Price” means the price for the Goods as set out on the invoice attached to these Terms of Trade or such other price as may be agreed by Seller and the Customer.

 “Seller” means Kerrick Industrial Equipment ABN 43 001 776 709.

Order for Goods

1.     An order given to the Seller is binding on Seller and the Customer, if:

       (a)   a written acceptance is signed for or on behalf of the Seller; or

       (b)   the Goods are supplied by the Seller in accordance with the order.

2.     An acceptance of the order by the Seller is then to be an acceptance of these Terms of Trade by the Seller and the Customer and these Terms of Trade will override any conditions contained in the Customer’s order.  The          Seller reserves the right to accept a part only of any order by notifying the Customer in writing or by delivering the Goods to the Customer.  No order is binding on the Seller until accepted by it.

3.     An order which has been accepted in whole or in part by the Seller cannot be cancelled by the Customer without obtaining the prior written approval of the Seller, which it may refuse in its absolute discretion.

Price and Payment

4.     The Customer must pay the Price and Additional Charges to Seller by the due date. 

5.     If the Customer is in default, Seller may at its option withhold further deliveries or cancel a contract without prejudice to any of its existing rights. 

6.     The Seller reserves the right to require payment for any delivery of Goods in advance or to require that satisfactory security for payment be given prior to such delivery.  Any terms of payment arranged must be done so in writing, and agreed by both parties prior to dispatch. If no arrangement is made for prepayment it is deemed that payment is strictly by cash, due and payable on dispatch from the Seller's premises. Where credit is given to the Customer, the terms are strictly payment by the 20th of the month following purchase.

7.     If any money is not paid on the due date the Customer must pay interest on the outstanding amount at the rate of 15% per annum to the Seller. 

8.     The Seller is entitled to invoice the Customer on the date the Goods are delivered to the carrier.

9.     If the Customer becomes insolvent or bankrupt or calls a meeting of creditors or goes into liquidation, voluntary or otherwise the Seller may suspend delivery or cancel the order.

10.   Any legal costs o

r expenses including on a solicitor and own client basis incurred by the Seller in recovery of any outstanding payment by the Customer will be payable to the Seller by the Customer.

Delivery

11.   The times quoted for delivery are estimates only and the Seller accepts no liability for failure or delay in delivery of Goods.  The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery.  Goods may be delivered by instalments at the discretion of the Seller. 

12.   Unless otherwise expressly provided in writing herein, all costs of transportation are to be paid and borne by the Customer and delivery of the Goods to the carrier constitutes delivery thereof to the Customer, and thereafter such Goods are at the Customer's risk.

13.   The Customer must inspect the Goods immediately upon arrival at the nominated address and within not more than fourteen (14) days from the date of delivery give notice in writing to the Seller of any defect in the Goods or of any failure by the Seller to deliver Goods as ordered by the Customer. If the Customer fails to give such written notice, the Goods will be deemed to be in all respect in accordance with the order placed by the Customer.

Returned Goods

14.   Except as required by law:

       (a)    return of Goods will not be accepted by the Seller except by prior agreement in writing with the Seller;

       (b)    Only normal stocking items will be accepted for return and parts bought by Seller on indent for the Customer are not returnable by the Customer;

       (c)    Goods will only be accepted for return if they are received by Seller within 15 working days of the date on the packing slip;

       (d)    Goods will only be accepted for return if they are in re-saleable condition and the Goods must be undamaged, unused, and the packaging must be returned intact.

15.   Except where the error is made by the Seller, Goods returned are subject to a restocking fee of 15% and a handling fee of 10% of the Price of those Goods and the original freight charges will be non-refundable.

16.   Seller reserves the right to amend its return policy at any time.

Limitation of Liability

17.   The liability of the Seller in respect of a breach of a consumer guarantee or any warranty made under these Terms of Trade for any Goods not of a kind ordinarily acquired for personal, domestic or household use is limited, to the extent permitted by law and at the option of Seller to:

      (a)    replacing the Goods or the supply of equivalent Goods;

      (b)    the repair of the Goods;

      (c)    the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or

      (d)    the payment of the cost of having the Goods repaired.

18.   To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms of Trade are excluded and the Seller is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for:

      (a)    any increased costs or expenses;

      (b)    any loss of profit, revenue, business, contracts or anticipated savings;

      (c)    any loss or expense resulting from a claim by a third party; or

      (d)    any special, indirect or consequential loss or damage of any nature whatsoever caused by Seller’s failure to complete or delay in completing the order to deliver the Goods. 

Retention of Title

19.   Ownership, title and property of the Goods remains with Seller until payment in full for the Goods and all sums due and owing by the Customer to Seller on any account have been made.  Until the date of payment:

        (a)   the Customer has the right to sell the Goods in the ordinary course of business;

        (b)   until the Goods have been sold by the Customer in the ordinary course of the Customer’s business, the Customer holds the Goods as bailee for Seller;

        (c)   the Goods are always at the risk of the Customer. 

20.   The Customer is deemed to be in default immediately upon the happening of any of the following events:

        (a)   if any payment to Seller is not made promptly before the due date for payment;

        (b)   if the Customer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque or bill of exchange drawn by the Customer payable to Seller is dishonoured.

21.   In the event of a default by the Customer, then without prejudice to any other rights which Seller may have at law or under this contract:

        (a)   Seller or its agents may without notice to the Customer enter the Customer’s premises or other premises where the Customer has located the Goods and the Customer agrees to indemnify and keep indemnified Seller from any claim whatsoever by any third party person or company in possession arising out of any action required by Seller to recover such Goods;

        (b)   Seller may recover and resell the Goods;

        (c)   if the Goods cannot be distinguished from similar Goods which the Customer has or claims to have paid for in full, Seller may in its absolute discretion seize all goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of Seller and the Customer may be ascertained.  Seller must promptly return to the Customer any goods the property of the Customer and Seller is in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Customer’s business howsoever arising from the seizure of the Goods.

       (d)   In the event that the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for Seller.  Such part will be an amount equal in dollar terms to the amount owing by the Customer to the Seller at the time of the receipt of such proceeds. The Customer will pay Seller such funds held in trust upon the demand of Seller.

 Personal Properties Security Act (“PPSA”)

22.   Defined terms in this clause have the same meaning as given to them in the PPSA.

23.   The Seller and the Customer acknowledge that these Terms of Trade constitute a Security Agreement and gives rise to a Purchase Money Security Interest (“PMSI”) in favour of the Seller over the Goods supplied or to be supplied to the Customer as Grantor pursuant to the Terms of Trade.

24.   The Goods supplied or to be supplied under these Terms of Trade fall within the PPSA classification of ”Other Goods” acquired by the Customer pursuant to these Terms of Trade.

25.   The Seller and the Customer acknowledge that the Seller, as Secured Party, is entitled to register its interest in the Goods supplied or to be supplied to the Customer as Grantor under the Terms of Trade on the PPSA Register as Collateral.

26.   To the extent permissible at law, the Customer:

        (a)    waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer, as Grantor, to the Seller.

       (b)    agrees to indemnify the Seller on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;

               (i)   registration or amendment or discharge of any Financing Statement registered by or on behalf of the Seller; and

               (ii)   enforcement or attempted enforcement of any Security Interest granted to the Seller by the Customer.

       (c)   agrees that nothing in sections 130 to 143 of the PPSA will apply to the Terms of Trade or the Security under the Terms of Trade;

      (d)    agrees to waive its right to do any of the following under the PPSA:

              (i)   receive notice of removal of an Accession under section 95;

             (ii)   receive notice of an intention to seize Collateral under section 123;

             (iii)   object to the purchase of the Collateral by the Secured Party under section 129;

             (iv)   receive notice of disposal of Collateral under section 130;

             (v)    receive a Statement of Account if there is no disposal under section 130(4);

             (vi)   receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.

             (vii)   receive notice of retention of Collateral under section 135;

             (viii)   redeem the Collateral under section 142; and

             (ix)   reinstate the Security Agreement under section 143.

 General

27.   Where an invoice is rendered for servicing the Customer's goods:

        (a)   The goods of the Customer for which labour and materials have been supplied by the Seller in servicing shall become the property of the Customer and subject to these Terms of Trade where applicable until the invoice is paid in full; and

        (b)   any part payment of the invoice shall be appropriated firstly for the cost of labour and thereafter to the cost of materials and parts.

28.   Any special terms of sale on the reverse hereof are by this reference incorporated herein with the same force and effect as those set out herein in full and shall prevail to the extent of any inconsistency with these Terms of Trade.

29.   If any term or provision (or part thereof) of these Terms of Trade is held by a court of competent jurisdiction to be illegal, unenforceable or contrary to public policy then these Terms of Trade shall be read as if such terms or provisions (or part thereof) had never been in these Terms of Trade and were severed there from leaving the remainder of the Terms of Trade legal, valid and enforceable.

30.  These Terms of Trade and any writing on the reverse hereof constitute the entire agreement between the parties except to the extent that such Terms of Trade are modified in writing and signed by both parties.

31.   No waiver by the Seller of any one breach of these Terms of Trade shall operate as a waiver of another breach of the same or of any other such Terms of Trade and the doing/or omission of any act, matter or thing whatsoever by the Seller, its servants or agents (which but for this clause would or might amount to a waiver of the Seller's rights in respect of any such breach or default) shall not operate nor be deemed to be a waiver in any way of the Seller’s rights and powers in respect of any such breach or default any rule of law or equity to the contrary notwithstanding.

32.  This agreement shall be governed by the laws of New South Wales and the parties hereby submit to the jurisdiction of the Courts for the resolution of any dispute under this agreement.