(a) In these terms and conditions “the Company” shall mean AAE Wholesale Pty Ltd
ABN (21 152 573 021) to which this application for credit is made and includes its successors and assigns and “the Customer” shall mean the entity which is applying for credit in the application.
(b) These terms and conditions shall apply to the exclusion of all others including any terms and conditions of the Customer (whether on the Customer’s order form or otherwise). The Customer acknowledges that these terms and conditions constitute the whole agreement between the parties unless otherwise agreed in writing.
Orders are accepted on the condition that the goods will be invoiced at the price ruling at the date the goods are despatched. Unless specified to the contrary, prices quoted are exclusive of all GST, stamp duty and like levies or taxes. The Company may amend prices at any time without prior notice. All quotations provided by the Company are valid for a period of thirty (30) days.
The Customer shall make payment to the Company for all goods supplied within thirty (30) days from the date of statement unless otherwise agreed in writing. The Customer acknowledges that time is of the essence with regard to payment and that any breach of this term will enable the Company to exercise all of its rights contained herein including (but without in any way limiting its rights) the right to cancel further credit and to take legal action for the recovery of all sums outstanding.
The Customer shall not be entitled to withhold payment of any sums after they become due by reason of any right of set off or counter claim which the Customer may have or alleged to have or for any other reason whatsoever.
Should payment remain outstanding beyond the Company’s payment terms as outlined in clause 3 above, the Customer agrees to pay interest on all amounts outstanding from the due date until the date of payment at a rate equal to 2% monthly above the Company’s then overdraft rate as varied from time to time.
Should payment remain outstanding beyond the Company’s payment terms as outlined in clause 3, the Customer agrees to pay all legal costs (on a solicitor/own Customer basis) and all Mercantile Agent’s fees (including any commission payable on the payment of the debt) incurred by the Company as a result of non-payment of the debt.
The Company may collect and retain Credit Information about the Customer and the Customer expressly consents and authorises the Company pursuant to the provisions of the Privacy Act and in accordance with the Australian Privacy Principles to:-
(a) seek from or give to a Credit Reporting Body credit information about the Customer at any time after accepting these conditions; and
(b) contact any trade references or other Credit Providers and acquire from them or give to them credit information in relation to the Customer.
Any information collected by the Company about the Customer may be shared with other staff of the Company in the performance of their normal duties.
(a) The Customer will pay all transport costs and insurance to deliver the goods to the Customer’s premises in the State which the Customer trades.
(b) In the event that the Customer specifies a delivery date, the Company shall use its best endeavours to comply with the Customer’s requests.In no circumstances will the Company be liable for any loss or damage of any kind whatsoever in the event that it is not able to comply with the Customer’s request for delivery at a certain time. The Customer acknowledges and agrees that it will not make any claim against the Company for any loss or damage incurred as a result of late delivery.
(c) Delivery of the goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
(d) The Customer shall not be entitled to repudiate the agreement as a result of the failure of the Company to deliver the goods.
(a) It is the responsibility of the Customer to check each delivery to ensure that the delivery is complete and in good condition. The Customer will be deemed to have accepted the goods as being in accordance with its order and received in good condition unless it notifies the Company in writing of any claim within fourteen (14) days of receipt of the goods.
(b) The Company will not accept any return of goods unless it has given prior written authorisation for the return and unless the returned goods are in a saleable condition. A restocking fee of not less than 5% of item price will be charged.
(c) The Customer is responsible for payment of any freight or delivery costs to return any goods to the Company unless the Company agrees to pay such costs.
A cylinder deposit will be charged on each refrigerant cylinder sale. This deposit is refundable only if -
(a) the original invoice number is provided, and
(b) the cylinder is returned within 18 months of original purchase, and
(c) the cylinder is returned in good condition with valve and refill protection device intact, and
(d) there is a valid and legible serial number.
The proper law of all contracts arising between the Company and the Customer is the law of the State of Victoria and the parties agree to submit to the jurisdiction of the Courts of that State.
(a) All warranty claims must be returned directly to the Company. All warranties whether express or implied and whether statutory or otherwise with regard to the goods supplied by the Company as to quality, fitness for purpose or any other matter are hereby excluded except in so far as any such warranties are incapable of exclusion at law.
(b) Where a manufacturers warranty exists then the Customer may only rely on such warranty and shall not be entitled to rescind or cancel the contract or sue the Company for damages or claim restitution arising out of any misrepresentation made to him by any servants or agents of the Company. The Customer acknowledges that it has relied on its own skill and judgement in deciding to enter into this agreement and has not relied on any representation condition warranty covenant or promise made for and on behalf of the Company.
All claims for warranty must be made within the warranty period by returning the Goods to the Company at the Customers expense with completed warranty claim form and proof of purchase.
(c) Any warranty provided by the Company shall not cover any defect or damage which may be caused by:
(i) Failure on the part of the Customer to properly maintain any Goods; or
(ii) Failure on the part of the Customer to follow any instructions or guidelines provided by the Company; or
(iii) Any use of any Goods otherwise than for any application specified on any documentation supplied with the goods; or
(iv) The continued use of any Goods after any defect becomes apparent to a reasonably prudent operator or user; or
(v) Fair wear and tear, any accident or act of God.
(d) Any Warranty provided by the Company shall be voided in the event that the goods are repaired or altered or replaced without the Company’s consent.
(e) Any Warranty provided by the Company shall be voided in the event that the goods are used on a vehicle that has been modified from its original manufacture and therefore no longer considered “normal use”. The level of modification accepted for “normal use” shall be at the discretion of the Company.
12. INTELLECTUAL PROPERTY
(a) The Company shall retain the copyright in all drawings of any products produced for the Customer unless otherwise agreed in writing.
(b) If the Customer provides the Company with any specifications, designs or drawings for the production or manufacture of any item or items then the Customer hereby warrants that the use of these designs, drawing or specifications will not infringe any third party’s rights and the Customer hereby indemnifies the Company against any claims demands suits or actions in relation thereto.
13. RIGHTS OF THE COMPANY TO DISPOSE OF GOODS
In the event that the Company retains or regains possession of the goods ordered by the Customer and the Customer has not paid for the goods within the Company’s terms of trade then the Company may dispose of the goods and may claim from the Customer any loss the Company has suffered in relation to same.
14. CHANGE OF OWNERSHIP
The Customer agrees to notify the Company in writing of any change of ownership of the Customer within seven (7) days from the date of such change and indemnifies the Company against any loss or damage incurred by it as a result of the Customer’s failure to notify the Company of any change.
Orders placed with the Company cannot be cancelled without the written approval of the Company. In the event that the Company accepts the cancellation of any order placed with it, it shall be entitled to charge a reasonable fee for any work done on behalf of the Customer to the date of the cancellation including a fee for the processing and acceptance of the Customer’s order and request for cancellation.
The Customer hereby acknowledges that the Company has a lien over all goods in its possession belonging to the Customer to secure payment of any or all amounts outstanding from time to time.
(a) Property in any goods sold by the Company shall not pass to the Customer until the Customer has paid for the goods in full and has paid all other monies outstanding under any other sale of goods by the Company to the Customer.
(b) Risk of loss or damage to the goods passes to the Customer with possession. Until payment of the purchase price (and all other monies outstanding) the Customer is to insure the goods against all risk. Any insurance claim in respect of loss damage or destruction of the items or goods is hereby assigned to the Company.
(c) In the event that:-
(i) the Customer has failed to pay for the goods as and when due;
(ii) the Customer has breached any of the conditions of this Contract;
(iii) the Customer commits an act of bankruptcy or becomes bankrupt;
(iv) a controller is appointed to the Customer;
(v) the Customer is placed under external administration;
(vi) the Customer enters into a scheme of arrangement with its creditors;
(vii) execution is issued against the property of the Customer and is returned unsatisfied; or
(viii) the Customer is insolvent; and
(ix) then the Company may retake possession of any of its goods which have been supplied to the Customer and for this purpose the Company may enter any premises belonging to or occupied by the Customer. The Customer hereby grants right of entry to the Company for the purpose of retaking possession of its goods and indemnifies the Company, its servants, agents and employees in relation to any loss or damage occurring as a result of retaking of possession of the goods.
(d) The Customer hereby indemnifies the Company against any loss or damage to the goods howsoever arising.
(e) The Customer is entitled to resell the goods in the usual course of its business but the Company is to be paid from the proceeds of the sale the purchase price owed to the Company (and all other monies outstanding including interest, costs and collection costs) which proceeds, to the extent of the purchase price (and all other monies outstanding including interest, costs and collection costs) shall be kept in a separate account and held by the Customer in trust for the Company.
(f) The Customer shall, on request, disclose to the Company all relevant information regarding the goods and any sale thereof by the Customer.
The Customer hereby charges all its property whatsoever whether currently owned by the Customer or acquired in the future with its indebtedness to the Company.
19. FORCE MAJEURE
The Company will not be in default or breach of any dealing with the Customer as a result of Force Majeure. Neither party shall be liable for any default due to an act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.