The Company is bound only by these conditions. Any other conditions, warranties and representations (including any implied by law) are excluded and negated.
Only the Company may vary these conditions.
Prices are those contained in then Company’s published price list, and include GST, and may be altered without notice.
Subject to the conditions of Marbletrend Freight Schedule (refer Freight schedule).
Where supplied, all pallets will be invoiced at the Company’s cost. Where returned or exchange, a full credit will be issued.
Delivery dates are estimates only and the Company is not liable for any loss or damage for failure to deliver by the estimated delivery date.
No liability is accepted for damage or shortage of product unless written notification is received within 2 working days after delivery.
Insurance of goods in transit is the responsibly of the buyer.
All goods of faulty manufacture (excluding imperfections permitted within AS1976 Vitreous China Used In Sanitary Appliances) will be credited or replaced if the Company is advised within a reasonable time after delivery, and the faulty product is made available for inspection and return. To the extent permitted by the Trade Practices Act and other relevant legislation, the Company’s liability is limited to: The cost of replacing the goods;
The cost of obtaining equivalent goods; or
The cost of having the goods repaired.
The Company is not responsible for any lack of operation or performance of goods (or any loss or damage) where goods are used or adapted for a purpose for which they are not designed.
The Company is not responsible for any lack of operation or performance of goods (or any loss or damage) where goods are combined or integrated with other goods not supplied by the Company.
Goods returned for credit must be authorized by the Sales Representative or Agent, and must be in resalable condition, including packaging. The Customer will pay freight for returns.
A restocking charge of 15% applies to all authorised goods returned for credit unless agreed to the contrary.
The Company’s responsibility and risk for goods ceases at the date of delivery.
Whilst the risk in the goods passes after delivery, legal and equitable title remains with the Company until payment is made to it in full for those goods and all other goods and services supplied to the Customer by the Company at any time. Prior to title in the goods passing to the Customer, the Customer must:
Hold the goods as bailee and fiduciary agent of the Company;
Where feasible, store the goods within the premises of the Customer and separate them from other goods of its own or any third party, or alternatively, in such a way as to clearly identify at all times that the goods are owned by the Company; and
Ensure that, at all times, the goods are properly stored, protected, readily identifiable and insured for their full replacement value.
With the prior written consent of the Company, the Customer may sell or deal in the ordinary course of business with the goods provided that any such sale or dealing is at arms? length and on agreed market terms and any proceeds of such sale are held on trust for the Company in a separate account.
The Company however reserves the following rights in relation to the goods until all amounts owed by the Company are fully paid:
Its legal and equitable ownership of the goods;
To retake possession of the goods; and
To keep or resell any of the goods repossessed pursuant to clause 14.5 below.
Without prejudice to the rights of the Company in clause 14A.3 above in the event of a breach of these terms by the Customer including, without limitation, failure by the Customer to make the agreed payment for the goods before their delivery, the Customer must return the goods to the Company on demand.
If the Customer does not return the goods to the Company within 48 (forty-eight) hours of receipt of the demand, the Company shall be entitled without notice to enter upon any premises where the goods may for the time being be placed or stored for the purpose of retaking possession of the goods and to retake possession of the goods. The Customer hereby grants full leave and irrevocable licence to the Company and any person it authorities for this purpose. If the Company so enters upon any premises where the goods may for the time being be placed or stored for the purpose of retaking possession of the goods, then the Customer hereby agrees that it:
Shall be liable for all costs, losses, damages, expenses or any other sums of money incurred or suffered by the Company, including consequential losses and damages as a result of the Company retaking possession of the goods or otherwise exercising its rights under this clause 14.5; and
Shall indemnify the Company for all fees (including legal fees on a full indemnity basis), costs and expenses incurred or suffered as a result of any and all prosecution, actions, demands, claims or proceedings brought by or against the Company in connection with the retaking possession of the goods or the exercise by the Company of its rights under this clause 14.5 and the Customer shall repay all such fees, costs, losses, damages expenses or any other sums of money on demand.
Personal Property Securities Act 2009 (PPSA)
The Customer acknowledges and agrees these terms and conditions of sale are a security agreement for the purposes of the PPSA and that the Company will register its security interest in the goods and their proceeds as a purchase money security interest (?PMSI?) on the PPSA Register.
The Customer acknowledges and agrees that the Company may register its security interest (including registering it as a PMSI) in the goods at any time before or after delivery.
The Company may apply amounts it receives from the Customer towards amounts owing to it as the Company may choose.
Where the PPSA applies to action taken by the Company in relation to the goods, the Customer waives its right to the maximum extent permitted by law to receive any notices required under section 95, 118, 121(4), 125, 130, 132(3)(d), 132(4) , 135, 142 and 143 of the PPSA.
The Customer waives its rights under section 157 of the PPSA to receive notice of a verification statement.
The parties agree to not disclose information of the kind referred to in section 275(1) except in circumstances required by sub-sections 275(7)(b)-(e) of the PPSA.
The Customer must do anything requested by the Company to ensure that its security interest is a perfected security interest and a PMSI and has priority over all other security interests in the goods.
Nothing in this clause 15.8 is limited by any other provision of these terms or any other agreement between the parties.
If a term used in this clause 15 has a particular meaning in the PPSA, it has the same meaning in this clause.
Irrespective of Condition 14&15 the Customer may sell goods in the normal course of business.
Payment of Customers accounts are strictly 30 days from the end of month in which the goods were delivered. A finance charge of 1% per month will be applied to overdue monies.
If there is default in payment of the goods the Company may enter upon the premises of the Customer and recover the goods that have not been paid for.
Orders for goods by the Customer are irrevocable, except where the Company agrees to the contrary.
The Goods & Services Tax (GST) component (currently 10%) has been included in the Company’s published Recommended Retail price list.
The company reserves the right to vary, alter or amend designs, drawings and the performance of its products without notice.
Drawings specifications, explanatory literature and other materials provide for descriptive purposes are not binding on the Company, nor do they constitute representations by the Company.
Agents or distributors of the Company’s products have no right or authority, express or implied, to bind the Company.
The Company is not responsible for any failure to abides by these conditions which apply to it where failure is due to strikes, accidents, or circumstances beyond its reasonable control.
In these Conditions: “Company” means Gemini Industries Pty Ltd its successors and assigns
“Date of Delivery” means the date the goods leaves the Company’s warehouse or the delivery to the rail, wharf, Carriers Depot, or Merchants store under Conditions 4 as the case may be.
“Goods” means products ordered by the Customer from the Company.
“Published Price List” means the Companies list of prices, issued from time to time, in respect of its goods.