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.
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
“Goods” means the goods sold to the Customer by the Seller and described in the invoice attached to these Terms of Trade.
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
“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.
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.
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.
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.
If the Customer is in default, Seller may at its option withhold
further deliveries or cancel a contract without prejudice to any of its
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.
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.
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
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.
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.
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.
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.
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
(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.
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
16. Seller reserves the right to amend its return policy at any time.
Limitation of Liability
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
(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.
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
(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
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;
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.
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.
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.
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.
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.
to indemnify the Seller on demand for all costs and expenses, including
legal costs and expenses on a solicitor / client basis, associated with
(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
(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.
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.
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.
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.
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.
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
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.