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Terms and Conditions of Sale

Terms and Conditions of Sale

  1. Interpretation A reference to: “Buyer” means the person or company who purchased the goods. “Delivery date” means the date set out in the invoice for approximate delivery of goods. “Force majeure event” means act of God, fire, lightning, flood, storm, tempest, earthquake, explosion, strike or other labour difficulty, action or inaction of a government or other competent authority, breakdown of plant, machinery or equipment, shortage of labour, transportation, energy, power, equipment or material and any other act, event or cause (other than lack of funds) which is beyond the reasonable control of Agostino Michael Pty Ltd. “Goods” means the goods supplied by Agostino Michael Pty Ltd. “GST” means any goods and services tax, value added or like tax. “The seller” means London Underground Pty Ltd.
  2. Unless otherwise agreed in writing by the Seller, the Buyer and the guarantor agrees that it will be bound by these terms and conditions. The Seller is not bound by any terms and conditions contained in any document issued by the Buyer and the guarantor.
  3. Once a quotation has been accepted by the Buyer and the guarantor, it cannot be cancelled by the Buyer and the guarantor. The supply of goods or services is subject to manufacturing lead times. The Seller reserves the right to suspend or discontinue the supply of goods or services to the Buyer and the guarantor. If the Seller is unable to supply all of the goods quoted, these terms and conditions continue to apply to any part of the quotation supplied.
  4. Where a written quotation has been provided by the Seller, the selling price is the price specified in the quotation. Unless otherwise stated, the selling price does not include the goods and services tax, or freight (all prices quoted are strictly ex-warehouse). The Seller may at any time change its price to reflect, among other things, changes in exchange rates or the imposition of any duties, levies or other taxes and the Buyer and the guarantor is bound by those changes. The Seller may charge a reasonable handling fee for all orders delivered to the Buyer and the guarantor. The Buyer and the guarantor must accept any errors or omissions in invoicing and, where applicable, the Buyer and the guarantor must accept the amended pricing and pay the difference within the approved terms of trade.
  5. Unless otherwise agreed in writing by the Seller, delivery is at the Seller’s premises. If a delivery date is specified, that date is an estimate only and the Seller is not liable for any delay in delivery. Time is not of the essence in relation to delivery and the Buyer and the guarantor must accept delivery and pay for the goods delivered including transport costs, if applicable, even if they are delivered after any specified delivery date.
  6. The Buyer and the guarantor must inspect the goods or services immediately following delivery or completion of the services (as the case may be). The Buyer and the guarantor may only return goods with the prior approval of the Seller. The goods must be returned within 21 days of the date of delivery in an unsoiled, undamaged and re-saleable condition and, where appropriate, in the original packaging. A reasonable handling fee for any returned goods will be charged to the Buyer and the guarantor. Any claim that the goods or services are not in accordance with these terms and conditions (including if they are defective, damaged during delivery, are short delivered or services not as per contract) must be made at the time of delivery/services provided or in writing to the Seller within 48 hours after delivery of the goods/completion of the services to the Buyer and the guarantor. If the Buyer and the guarantor fails to make a claim then, to the extent permitted by law, the goods or services are deemed to have been accepted by the Buyer and the guarantor and the Buyer and the guarantor must pay for the goods or services in accordance with these terms and conditions.
  7. If employees or authorised representatives of the Seller attend any premises as directed by the Buyer and the guarantor to supply any goods or perform any services, the Buyer and the guarantor will ensure appropriate policies and procedures are in place and followed and generally implement good industry practice (including occupational health and safety policies and risk assessments for any dangerous or potentially dangerous activities) and act consistently with the Seller’s policies as notified to the Buyer and the guarantor. This includes ensuring all safety equipment, communications equipment or other items are provided, maintained and are fit for their intended purpose and conducting hazard and assessment risk assessments.
  8. Unless otherwise agreed, the Buyer and the guarantor must pay for goods or services ordered by the Buyer and the guarantor on supply of goods or completion of services. The Seller may charge an administration fee for any payments by credit card. Time is of the essence in respect of the Buyer and the guarantor’s obligation to make payment for goods or services supplied by the Seller to the Buyer and the guarantor.
  9. If the Buyer and the guarantor does not make any payment by the due date, commits any other material breach of these terms and conditions, or an insolvency event in respect of the Buyer and the guarantor arises or is reasonably suspected by the Seller, the Seller may (without limiting any other right or claim it may have against the Buyer and the guarantor) do any or all of the following: a) charge the Buyer and the guarantor interest calculated on a daily basis on any portion of the Buyer and the guarantor’s account that is overdue at the Australian & New Zealand Banking Group’s reference rate for business loans, available to prime commercial customers plus 5% calculated from the date the payment was due until the date payment is made (both dates inclusive); b) vary or withdraw any approved credit limit and/or terms of trade; c) cancel or suspend any unfilled orders or cease providing the services; d) terminate any contracts between the Seller and the Buyer and the guarantor and demand immediate payment of any moneys due and outstanding under those contracts; e) cancel any rebate, discount or allowance due or payable by the Seller as at the date of the event; f) enter (at any time) any premises in which the Seller’s goods (including any merchandising materials) are stored, to enable the Seller to inspect the goods and to reclaim possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Buyer and the guarantor whatsoever; g) lodge a caveat or other similar instrument over any property of the Buyer and the guarantor; or h) institute any recovery process as the Seller in its discretion decides at the Buyer and the guarantor’s cost and expense.
  10. If any part of an invoice is in dispute, the balance will remain payable and must be paid when due. The Buyer and the guarantor has no right to set-off any claim against the Seller from moneys owing to the Seller.
  11. Goods supplied by the Seller to the Buyer and the guarantor are at the Buyer and the guarantor’s risk immediately on the earlier of delivery to the Buyer and the guarantor or into the Buyer and the guarantor’s custody, including its carrier or forwarder. The Buyer and the guarantor must insure the goods at its cost from delivery of the goods until they are paid for in full against such risks as are usual or common to insure against in a similar nature to the Buyer and the guarantor.
  12. The Buyer and the guarantor charges to the Seller all of the Buyer and the guarantor’s rights, property and undertaking of whatever kind and wherever situated and whether present or future for the purpose of securing payment of all amounts that, at any time and for any reason or circumstance and whether at law or otherwise and whether or not of a type within the contemplation of the parties at the date of this Agreement, are payable, are owing but not currently payable, are contingently owing, or remain unpaid by the Buyer and the guarantor to the Seller. If the Buyer and the guarantor fails to pay any amount owing to the Seller by the date on which such payment is due, the Seller may appoint one or more receivers to the Buyer and the guarantor’s property and undertaking, and may do anything that a receiver could do under law.
  13. The Buyer will not, without prior written consent of the Seller cause to effect a change in ownership of the business name under which the Buyer operates. The Buyer warrants that it will not, without prior written consent of the Seller, cause to effect a change in the trading structure of the Buyers business. In the event of any change in the Buyers trading structure or in ownership of the Buyers business name the Buyer warrants that it will procure that such new trading structure or new owner of the business name shall enter into a contract in like for mutatis mutandis for this agreement, and that the new owner of the business name or new directors of the new Buyer forming the new business structure shall enter into a guarantee in like for mutatis mutandis with the guarantee document attached hereto.
  14. The Buyer and the guarantor hereby charges and mortgages in favour of the Seller to secure the repayment of the debt and all monies which may become owing by the Buyer and the guarantor to the Seller hereunder all the Buyer and the guarantor’s estate and interest in all property both real and personal present and future.
  15. The terms and conditions of sale expressed herein (and in the guarantee document) are subject to change and are attached to the back of all invoices issued by the Seller to the Buyer and to every updated price list issued by the Seller.
  16. Where any party executes this document in the capacity of a trustee pursuant to any trust deed, will, deed of settlement or other instrument whatsoever (in this clause called “The trust deed”) such party (in this clause referred to as “Trustee”) warrants and undertakes to and covenants with the customer that:- a) As trustee it has power under the trust deed: i. to enter into and execute this document ii. to be or become indebted to the company and to enter into all other obligations in the manner and to the extent contemplated by this document b) During the term of this document (and any extensions thereof) it will not without the prior written consent of the company i. appoint or procure or concur in the appointment of any person, firm or corporation as a new or substitute or custodian trustee under the trust deed; ii. do any act or thing or omit to do any act or thing so as to harm or impair or be likely to harm this document or the covenants, terms and conditions thereof; iii. in the event of a new substitute or custodian trustee being appointed under the trust deed it will procure that such new substitute or custodian trustee shall enter into a deed in like form mutatis mutandis with this document, which deed shall be prepared and stamped by the company’s solicitor at the cost in all respects of the customer.
  17. Property in the goods supplied by the Seller to the Buyer and the guarantor does not pass to the Buyer and the guarantor until those goods have been paid for in full. In the mean time, the Buyer and the guarantor takes custody of the goods and retains them only as fiduciary agent and bailee of the Seller. Until goods have been paid for in full: a) to the extent possible, the Buyer and the guarantor must store the goods in a manner that shows clearly they are the property of the Seller, maintain records relating to the goods, secure the goods from risk, damage and theft and ensure that the goods are kept in good and serviceable condition; b) the Buyer and the guarantor may sell the goods, in the ordinary course of its business, but only as fiduciary agent of the Seller. The Buyer and the guarantor must not represent to any third party that the Buyer and the guarantor is acting in any capacity for or on behalf of the Seller and the Buyer and the guarantor has no authority to bind the Seller to any contract or otherwise assume any liability for or on behalf of the Seller. The Buyer and the guarantor receives all proceeds (including any proceeds from insurance claims) in trust for the Seller and must keep the proceeds in a separate bank account until all liability to the Seller is discharged; c) if the Buyer and the guarantor uses the goods in some manufacturing or construction process of its own or of a third party, the Buyer and the guarantor must hold in trust for the Seller that part of the proceeds of the manufacturing or construction process as is equal to the amount owing by the Buyer and the guarantor to the Seller at the time of receipt of the proceeds.
  18. To the extent permitted by law and subject to any written warranty entered into between Seller and the Buyer and the guarantor with respect to goods provided under these terms and conditions, these terms and conditions exclude all other conditions, warranties, liabilities or representations in relation to the goods and /or services. Where legislation implies in these terms and conditions any condition or warranty that cannot be excluded or modified, the liability of the Seller for a breach of any such condition or warranty is limited at the Seller’s option to any one or more of the following: a) In the case of goods: i. replacement of the goods or the supply of equivalent goods; ii. payment of the cost of replacing the goods or of acquiring equivalent goods, by credit to the Buyer and the guarantor’s account, in cash or by cheque at the Seller’s discretion; or iii. repayment of any part of the purchase price of the goods which has been paid by the Buyer and the guarantor, by credit to the Buyer and the guarantor’s account, in cash or by cheque at the Seller’s discretion. b) In the case of advice, recommendations, information or services by supplying the advice recommendations, information or services again.
  19. Subject to clause 12, The Seller is not liable for any loss or damage of any kind whatsoever and howsoever arising out of or in connection with the supply of goods and services, including (without limitation) any indirect or consequential loss (including without limitation loss of profit, loss of revenue, loss of contract, loss of goodwill or increased cost of workings), arising out of or in connection with the supply of goods or services, even if due to the negligence of the Seller or any of its employees or agents.
  20. The application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded.
  21. If any provision of these terms or conditions is unenforceable, illegal or void, that provision is severed and the other provisions of these terms and conditions remain in force.
  22. If the Seller becomes unable by a force majeure event to carry out any obligation, in whole or in part, placed on it by these terms and conditions, that obligation insofar as it is affected by the force majeure event, will be suspended during the period the force majeure event continues.
  23. This contract sets forth the entire contract and agreement between the parties and supersedes all enquiries, proposals, agreements, negotiations and commitments wether written or oral prior to the date of execution of this Contract. The provisions of this Contract may be changed only by writing executed by the Seller and the Buyer.
  24. The signing of a manifest or delivery docket for goods received notwithstanding anything that may be stated to the contrary by the Buyer shall constitute acceptance of these Terms and Conditions of Sale.
  25. The laws of Australia apply to these terms and conditions. The parties irrevocably submit to the jurisdiction of the appropriate court convenient to the Seller in respect of any claims, proceedings and matters arising out of or in respect of these terms and conditions.
  26. The exemptions, limitations, terms and conditions in these terms and conditions of sale shall apply whether or not any loss or damage is caused by negligence or actions constituting fundamental breach of contract.

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