BENCHMARK SHELVING AND STORAGE PTY LTD ACN 615 388 415 ABN 95 615 388 415 TERMS AND CONDITIONS OF TRADE
Date: November 2016
The following terms and conditions apply to and form part of any contract between Benchmark Shelving and Storage Pty Ltd (the Company) and a customer for the supply of goods and services by the Company whether or not quotations are given and how they are given. These terms and conditions replace any previous terms and conditions.
- PRICES AND SPECIFICATIONS
- Prices and specifications are subject to change without notice. All prices are subject to any Federal, State or other taxes in effect at the time of despatch.
- The customer shall pay forthwith upon demand by the Company any goods and services, consumption, value added or similar tax (GST) or reimburse the Company for any GST paid or payable by the Company in respect of such GST imposed on the Company as supplier with respect to any payment by the customer to the Company of the price or other monies to be paid pursuant to any supply of goods and/or services by the Company to the customer.
- Import duty (if any) included in any quotation is based on the rates and methods of assessment in force as at the date of quotation. All variations whether arising from statutory amendments, changes of interpretation or classification, or variations in the rates of tax shall be to the customer’s account.
- Variations in rates of exchange, freight, insurance, duty and cartage on imported equipment or components, affecting the amounts paid by the Company for the actual equipment or components supplied shall be to the customer’s account.
- Quotations are valid for thirty (30) days from date of writing, unless specified differently in the body of the quotation. The Company may amend, vary or withdraw the quotation at any time. b. No quotation given by the Company shall constitute an offer. An order placed by a customer (whether or not pursuant to any such quotation) is not binding on the Company unless and until agreed to in writing by the Company. c. Quotations cover only the work specified therein. Any variation or additional work requested by the customer or resulting from drawing, samples, specifications or authorisations subsequently submitted may be charged extra and be subject to a revised delivery rate. Any such variation or additional work must be agreed to in writing by the Company.
- Unless otherwise agreed to in writing all goods will be supplied on a C.O.D. basis. The Company shall be entitled to request payment of a deposit of such amount as it thinks fit prior to the commencement of work on the customer’s order.
- The extension of credit shall be at the absolute discretion of the Company and where extended shall require payment by net cash within 30 days from end of month.
- If the customer defaults in the payment of any monies due to the Company, the
Company shall be entitled to charge interest on all amounts not paid by the due date for payment. Such interest shall be calculated on a daily basis from the due date for payment until the date the Company received payment at such rate as may be determined by the Company, up to but not exceeding a rate of three percent (3%) per annum above the rate charged by the Company’s Bank on overdrafts in excess of $100,000.00.
- Where delivery of the goods is affected by way of part deliveries the Company shall be entitled to invoice the customer for pro rate progress payments in respect thereof.
- Should the Company agree to defer delivery of any goods at the request of the customer, a storage fee equivalent to 2.0% if the invoiced value thereof shall be payable by the customer for each month of part thereof of that delivery of the goods is so deferred. This charge will be payable per our normal trading terms.
- The Company shall not be liable for any loss or damage (including consequential loss or damage) arising from delay in delivery or failure to deliver due to circumstances beyond its reasonable control and the customer shall accept and pay for goods notwithstanding late delivery.
- Possession of and risk in the goods shall pass to the customer at the time goods are loaded onto the vehicle at the Company’s premises (delivery).
- Where the Company agrees to carry out delivery of the goods on behalf of the customer, a delivery charge will be incorporated in the unit value and calculated as 5.3% of that amount. Any alteration to the delivery charge will be notified to the customer.
- The customer shall be responsible for and shall indemnify the Company for loss or damage to the goods from the time of delivery until paid for in full.
- Shortages in delivery must be reported to the Company within 7 days of the date of receipt of the goods by the customer failing which the Company will not be liable for such shortages nor for any losses which the customer may otherwise sustain.
- Delivery to third parties may be arranged at the request of the customer subject to acceptance by the Company.
All implied conditions, warranties and undertakings, other than those implied by Part V of the Trade Practices Act, are hereby expressly excluded. Where the goods are of a kind other than goods ordinarily acquired for personal, domestic or household use, then the Company’s liability for breach of a condition or warranty implied by Part V of the Trade Practices Act is limited, at its option, to any one or more of the following:–
a. The replacement of the goods or the supply of equivalent goods. b. Repair of goods. c. The payment of the cost of replacing goods or of acquiring equivalent goods. d. The payment of the cost of having the goods repaired.
Without prejudice to any other rights the Company may have, the customer unconditionally shall indemnify the Company for an all losses, damage and expenses incurred by the Company should the customer cancel any order or breach any term hereof.
- MATERIAL SUPPLIED BY THE CUSTOMER
- All equipment, materials, property, plans or specifications furnished by or on behalf of the customer to the Company for the purpose of its performing any services or manufacturing any products or goods shall be of suitable specifications and quality for the performance of such services or the manufacture of such products or goods. The Company shall not be liable in any way whatsoever where materials, equipment, goods, plans or specifications supplied by or on behalf of the customer are defective or unsuitable.
- Where the customer supplies materials or property adequate quantities shall be supplied to cover spoilage. The Company shall not be required to check or count materials or property when received by it unless agreed in writing by the Company. The Company shall be entitled to an additional charge for such counting or checking.
- Property and materials supplied by or for and on behalf of the customer for use by the Company (including property or materials in transit) are at the customer’s risk and the Company shall not be liable in any way whatsoever for loss or damage to such property or material.
- The Company may charge for handling and storage of property, materials or equipment supplied by or on behalf of the customer
Should the customer fail to make due payment for any goods or service supplied by the Company or commit an act of bankruptcy or by act or omission enable the appointment of a scheme manager, trustee, official manager, receiver and manager, administrator, liquidator or any other person authorised to enter into possession or assume control of any property of the customer pursuant to a mortgage or other security or according to Law the customer shall be in breach of these Terms and Conditions of Trade and the customer acknowledges that, the Company may, without prejudice to any other rights it may have, do any or all of the following:–
(i) withdraw any credit facilities which may have been extended to the customer and demand immediate payment of all monies owing to the Company;
(ii) withhold any further deliveries of goods or performance of services required under the contract;
(iii) in respect of goods already delivered, enter onto the customer’s premises to recover and resell same for its own benefit;
(iv) suspend and/or terminate performance of any other contracts which the Company has with the customer.
- COLLECTIONS CHARGES
Any expenses, costs or disbursements incurred by the Company in recovering any outstanding monies from the customer including debt collection agency fees and commission and solicitors costs (full indemnity basis) shall be paid by the customer.
- GOVERNING LAW
All contracts between the Company and the customer shall be governed by the Law of the State of Queensland and of the Commonwealth of Australia and for this purpose the Courts of the State of Queensland and of the Commonwealth of Australia shall have non-exclusive jurisdiction in respect of any dispute or issues arising out of such contracts.
- RETENTION OF TITLE
It is the intention of the Company and agreed by the customer that legal and equitable title of products delivered shall remain with the Company and shall not pass until:
(a) The customer has paid all amounts in full owing for the particular goods, and
(b) The customer has met all other obligations due by the customer to the Company in respect of all contracts between the Company and the customer, and the goods shall be kept separate until the Company shall have received payment and all other obligations of the customer are met.
It is further agreed that:
(a) Until payment is made in full, the customer will have responsibility as bailee of the goods and will return the goods to the Company if so requested by way of notice in writing to the customer. Upon such notice the rights of the customer to obtain ownership or any other interest in the Goods shall cease.
(b) If the customer fails to return the goods to the Company then the Company or the Company’s agent may enter upon and into land and premises owned, occupied or used by the customer, or any premises as the invitee of the customer, where the goods are situated and take possession of the goods, without being responsible for any damage thereby caused.
(c) The customer shall not deal with the money of the Company in any way which may be adverse to the Company.
(d) The Company can issue proceedings to recover the price of the goods sold notwithstanding that ownership of the goods may not have passed to the customer.
- SECURITY AND CHARGE- PERSONAL PROPERTY SECURITIES ACT 2009 (PPSA)
This clause applies to the Company’s interest in goods of the Company as security interest for registration in the Personal Property Securities Act 2009 (PPSA) Register, the goods include the following:
– Office Furniture
– Storage Equipment
– Filing Systems
– Storage Consultancy Services
– Materials Handling Products
– Locker Room Equipment
– Raised Storage Areas – Safety Equipment
– Installation and Relocation Services
– Display Equipment
(a) The customer acknowledges and agrees that the Company may exercise its rights as the secured party to register its security interest in the goods at any time before and after delivery of the goods.
(b) The customer acknowledges and agrees that the Company may also exercise its rights as the secured party to register its super-priority purchase money security interest in the goods within the following timeframe:
– Where the collateral is tangible property (inventory) – the security interest must be registered before the time the customer obtains possession of the collateral
– Where the collateral is not tangible property (not inventory) – the security interest must be registered within 15 business days of the customer obtaining possession of the inventory. Should the security interest not be registered within these timeframes, a security interest is still validly created and the Company continues to have a security interest and default priority rules still apply.
(c) The customer must do anything requested by the Company to ensure that its security interest is a perfected security interest and is held to have priority over all other security interests in the goods.
(d) The customer agrees to waive its rights under section 157 of the PPSA to receive verification statements should the Company register its security interest in the goods. (e) The Company reserves the right to apply amounts received by the customer towards amounts previously owing to the Company.
(f) In the event of any default by the customer, whereby the customer failed to comply with their obligations under the terms and conditions of the agreement, the Company reserves its rights to enforce its security interest in any goods by exercising all or any of its rights pursuant to the terms and conditions of the agreement or under the PPSA.
(g) The parties agree to the maximum extent permitted by law, section 95, 118, 121 (4), 125, 130, 132 (3) (d), 132 (4), 135, 142 and 143 of the PPSA does not apply to the enforcement by the Company of its security interest in the goods. (h) The parties agree not to disclose information of the kind referred to in section 275 (1), except in circumstances required by sections 275(7) (b)-(e), of the PPSA.
(i) Nothing in this clause is limited by any provision of these terms or any other agreement between the parties.
(j) All definitions and meanings under the PPSA will have the same meaning in this clause.