Adelaide Bathroom & Kitchen Supplies Terms & Conditions of Sale
These are the Terms and Conditions upon which we (as named in clause 1.1.Q below) sell and quote for the sale of Goods. We may, at any time and from time to time, alter these Terms and Conditions by notice in writing to you at your last provided address, or if a corporation at your registered office.
1 Definitions and interpretation
In this document, unless the context otherwise requires:
1.1.A “Credit Application” in relation to a Buyer means the Thirty Day Commercial Credit Account Application signed by the Buyer which refers to these Terms and Conditions.
1.1.B “Buyer” means the person named in the relevant Sales Invoice or Quotation.
1.1.C “ACL” means Australian Consumer Law under the Competition and Consumer Act 2010
1.1.D “Consumer” means a person who is a consumer for the purposes of the ACL
1.1.E “GST” means the goods and services tax as imposed by the GST Law together with any related interest, penalties, fines or other charge.
1.1.F “GST amount” means any Payment (or the relevant part of that Payment) multiplied by the appropriate rate of GST.
1.1.G “GST Law” has the meaning given to that term in A New Tax System (Goods and Services Tax) Act 1999, or, if that Act does not exist for any reason, means any Act as to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.
1.1.H “Goods” means all Goods of whatever kind, including parts and accessories, services and equipment supplied, or to be supplied, to the Buyer by us.
1.1.I “Payment” means any amount payable under or in connection with a Quotation or Sales Invoice including any amount payable by way of indemnity, reimbursement or otherwise (other than a GST Amount) and includes the provision of any non- monetary consideration.
1.1.J “person” includes an individual, the estate of an individual, a corporation, an association (incorporated or unincorporated) and a statutory body or authority.
1.1.K “PPSA” means the Personal Property Securities Act 2009
1.1.L “PMSI” means a Purchase Money Security Interest within the meaning of Section 14 of the PPSA
1.1.M “Purchase Price” means the price for the Goods set out in the relevant Quotation or Sales Invoice.
1.1.N “Quotation” means the form of quotation submitted by us to the Buyer in which these Terms and Conditions are or are deemed to be incorporated.
1.1.O “Sales Invoice” means the sales invoice issued by us to the Buyer in which these Terms and Conditions are or are deemed to be incorporated.
1.1.P “Terms and Conditions” means the terms and conditions of us quoting and selling of Goods to the Buyer as set out herein and as may be amended from time to time.
1.1.Q “We” or “us” in relation to any Quotation or Sales Invoice or in this document means The Trustee for ABK Supplies Trust T/As Adelaide Bathroom & Kitchen Supplies ABN 13 695 032 804
1.1.R “Tax Invoice” has the meaning given to that term by the GST Law
1.1.S “Taxable Supply” has the meaning given to that term by the GST Law.
1.2 Governing terms, conditions and Law
These are the only Terms and Conditions which are binding upon us, except for those otherwise agreed in writing by us or which are imposed by a statute and which cannot be excluded. The United Nations Convention for the International Sale of Goods does not apply. These Terms and Conditions and any contract including them will be governed by and construed in accordance with the laws of the State of South Australia and we and the Buyer submit to the non-exclusive jurisdiction of the courts of South Australia.
1.3.A Any special conditions specified on a Quotation or Sales Invoice will, to the extent they are inconsistent with these Terms and Conditions, take precedence over these Terms and Conditions.
2 Terms of payment
2.1 The Buyer agrees that until we confirm in writing that credit terms have been granted to it all Goods are supplied on a cash before delivery basis.
2.2 Unless otherwise agreed in writing, payment to us for Goods delivered and accepted is due on the last working day of the month following the month in which the Goods are dispatched to the Buyer. If the Buyer fails to make payment in accordance with this clause, all amounts owing by the Buyer to us on any account will immediately become due and payable.
2.3 In the event of failure to pay in accordance with the Terms and Conditions each outstanding amount will bear interest at that rate stipulated in the Credit Application, or if the Buyer has not executed such document at One percent (1%) per month on any overdue amount. We may also:
2.3.A charge a late payment fee of one point five percent (1.5%) inc GST on all amounts paid by credit card;
2.3.B charge a dishonour handling fee at the rate advised by us from time to time where we are unable to obtain payment from the Buyers credit card provider or a cheque is not paid by the Buyers bank.
2.3.C recover all collection costs and expenses incurred in collecting overdue accounts;
2.3.D withhold supply;
2.3.E sue for the money owing on the Goods
2.4 Payments received from the Buyer will be firstly applied against interest accrued on outstanding unpaid amounts, then collection costs due under 17.2, then against the balance due on the longest outstanding invoice due and unpaid at the time of receipt of payment, then against the balance due on the next longest outstanding invoice and so on.
2.5 We reserve the right to charge a handling fee for payments by credit card at the rate advised to the Buyer from time to time.
3 Inspection and Acceptance
3.1 The Buyer will inspect all Goods upon delivery and will within 48 hours of delivery give notice to us of any matter or thing by which the Buyer alleges that the Goods are not in accordance with the Buyer’s order. Failing such notice, subject to any contrary provision applying under the ACL or other law, the Goods will be deemed to have been delivered to and accepted by the Buyer.
When Goods are returned, credit will only be issued under the following conditions:
4.1 Return authorisation
4.1.A A Goods return authorisation (“GRA”) number must be obtained from ABK Supplies prior to the return of any Goods;
4.1.B The Buyer must provide the invoice number and the date of purchase before a GRA will be issued;
4.1.C The GRA number must be clearly marked on the packaging of Goods returned to us. Failure to comply with this requirement could result in our refusing to accept delivery of the returned Goods.
All claims for credit must be supported by the carriers consignment note or similar receipt of delivery, our relevant invoice number, and the GRA number issued by us.
4.3 Unacceptable returns
Without in any way limiting our discretion to refuse to accept the return of any Goods, then subject to any contrary provision applying under the ACL or other law the following Goods will not be returnable:
4.3.A any Goods that have been held by the Buyer for more than seven (7) days; or
4.3.B any Goods which are not in original condition including packaging; or
4.3.C any Goods that are manufactured / made to order (“MTO”) items unless defective. Any manufacturing surcharge is non-refundable.
4.4 Damaged Goods
We will only recognise claims for damaged Goods delivered by us to a Buyer if the claim is lodged within seven (7) days of the Buyer receiving the Goods, (unless the damage would not have been apparent on an inspection at delivery), and the damage was caused by our carrier, or was present prior to leaving our warehouse.
4.5 Restocking Fee
The Buyer agrees to pay us a restocking fee at the rate advised by us from time to time (usually 20-25% of purchase price).
5.1 Unless previously withdrawn, a quotation is valid for 30 days or such other period as stated in it. A quotation is not to be construed as an obligation to sell but merely an invitation to treat and no contractual relationship will arise from it until the Buyer’s order has been accepted in writing by us.
5.2 We will not be bound by any conditions attached to the Buyer’s order or acceptance of a Quotation unless such conditions are expressly accepted by us in writing.
5.3 An accepted quotation is taken as an order for the purposes of this document
6.1 By ordering Goods, the Buyer is making a binding offer to purchase those Goods. Alternatively, our manufacture of Goods or delivery of Goods pursuant to the Buyers order will be deemed acceptance of the Buyers offer to purchase.
6.2 The Buyer will purchase, and we will supply Goods to the Buyer on the Terms and Conditions of this document. However, we are not obliged to supply Goods to the Buyer whenever requested to do so by the Buyer.
7.1 The parties agree that:
7.1.A The Purchase Price on invoices are exclusive of GST unless otherwise specifically stated.
7.1.B All other costs, charges and expenses have been calculated without regard to GST unless specifically stated.
7.1.C If the whole or any part of any payment is the consideration for a Taxable Supply the Buyer must pay an additional amount equal to the GST amount concurrently with that payment.
7.1.D Any party making a Taxable Supply will provide a Tax Invoice to the other at the time of the supply.
8 Passing of Ownership and Risk
8.1 Goods supplied by us to the Buyer are at the Buyer’s risk immediately upon delivery to the Buyer, into the Buyer’s custody or at the Buyer’s direction (whichever happens first).
8.2 Ownership of the Goods supplied by us to the Buyer under these Terms and Conditions will not pass to the Buyer until those Goods, and all other Goods supplied to the Buyer by us have been paid for in full.
8.3 Until ownership passes to the Buyer, the Buyer will insure the Goods from the time of delivery at its cost against such risks as it thinks appropriate, will note our interest on the insurance policy and will produce a certificate to this effect to us upon request
8.4 Until ownership in the Goods has passed to the Buyer under clause 8.2 above:
8.4.A The relationship between the Buyer and us will be fiduciary.
8.4.B The Buyer will hold those Goods as bailee for us.
8.4.C If the Buyer sells those Goods, it has no power to commit us to any contract or liability, but as between the Buyer and us, it will sell as a fiduciary agent.
8.4.D We will be given full ownership of any new Goods or objects formed if the Buyer transforms our Goods into other products or affixes our Goods to other objects.
8.4.E Where those Goods are disposed of, the moneys resulting from the disposal and all other proceeds (tangible or intangible) received in respect of the Goods, including insurance proceeds will be kept separately in trust for us.
8.4.F Where those Goods are disposed of, the Buyer may only dispose of the Goods in the ordinary course of its business on commercially reasonable terms.
8.4.G The Buyer will keep records of those Goods.
8.4.H The Buyer undertakes that until it delivers the Goods to a third party, it will store the Goods on its premises separately from all other goods belonging to other persons in a manner which makes the Goods really identifiable as our goods.
8.4.I The Buyer agrees that our employees or agents may enter upon any of its premises (doing all that is necessary to gain access) where it is reasonably thought Goods supplied under this agreement might be stored for the purpose of examining or recovering Goods.
8.5 It is agreed that the provisions of this clause apply notwithstanding any arrangement under which we grant credit to the Buyer.
9.1 We reserve the right to suspend or discontinue the supply of Goods to the Buyer without being obliged to give any reason for our action.
9.2 We reserve the right to modify the design of the Goods without notice.
9.3 We are not obliged to supply Goods when requested to do so by any Buyer.
10 Part Deliveries
10.1 We reserve the right to make part deliveries of any order, and each part delivery will constitute a separate sale of Goods upon these Terms and Conditions. A part delivery of any order will not invalidate the balance of an order.
11.1 A Quotation or Sales Invoice is made on a supply only basis. Installation and commissioning (if any) is at the Buyers expense.
12 Dimensions, Performance Data and Other Descriptive Details
12.1 Photographs, drawings, illustrations, weights, dimensions and any other particulars accompanying, associated with or given in a Quotation, descriptive literature or a catalogue approximate the Goods offered but may be subject to alteration without notice.
12.2 Any performance data provided by us or a manufacturer is an estimate only and should be construed accordingly.
12.3 Unless agreed to the contrary in writing, we reserve the right to supply an alternative brand or substitute product when necessary.
13 Shipment and Delivery
13.1 We reserve the right to deliver the Goods by instalments. Any delivery times notified to the Buyer are estimates only. If the Buyer requests us to postpone delivery of the Goods beyond the delivery date or dates specified in the Buyers order, we may agree to do so if the Buyer agrees to pay an additional fee for such postponement.
13.2 If we do not receive any delivery instructions sufficient to enable us to dispatch the Goods within fourteen (14) days of the Buyer being notified the Goods are ready for delivery, the Buyer will from the fifteenth day after notification:
13.2.A be deemed to have taken delivery of the Goods;
13.2.B be liable for storage charges, payable monthly on demand;
13.2.C assume risk in the Goods.
13.3 Upon acceptance of an order by us we will seek confirmation of the period of shipment or delivery. If any variation has occurred in the quoted period, we will notify the Buyer. Unless the Buyer objects in writing within 7 days of that notification to the Buyer, this period of shipment or delivery notified to the Buyer will be the contractual period for shipment or delivery. We reserve the right to nominate the means of delivery.
13.4 A delivery charge will apply to all deliveries with the exception of back order deliveries which are part of an original order that has been partly fulfilled.
13.5 Unless otherwise agreed in writing, if we prepay freight, insurance, custom and import duties (if any), landing and delivery charges and all other charges in connection with shipment and delivery of the Goods, then any such charges will be to the Buyer’s account.
14 Manufacturers’ Changes
14.1 Where we are acting as agent for a manufacturer or supplier, we will not be liable for any alteration or variation in the Goods made by the manufacturer or the supplier.
15.1 Any charge, duty, impost, sales tax or other expenditure which is not applicable at the date of Quotation, acceptance of an order, or a Sales Invoice but which is subsequently levied upon us in relation to a Quotation or Sales Invoice as a result of the introduction of any legislation, regulation or government policy, will be to the Buyer’s account.
15.2 Any increase in exchange rates, costs of labour, materials and overheads after the date of Quotation or acceptance of an order that adds to the cost of the Goods will be to the Buyers account.
16 Force Majeure
16.1 If in the performance or observance of any obligation we are prevented, restricted or affected by reason of a force majeure event (including strike, lock out, industrial dispute, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond our reasonable control) we may in our absolute discretion give notice of that cause to the Buyer. On delivery of that notice we are excused from such performance or observance of that obligation to the extent of the relevant prevention, restriction or affect.
17 Default of Buyer
17.1 If these Terms and Conditions are not strictly observed by the Buyer, we may in our absolute discretion, refuse to supply to the Buyer and we will not be liable to the Buyer for any loss or damage the Buyer may sustain as a result of such refusal.
17.2The costs of collection of any moneys are due and payable by the Buyer, including the fees of any mercantile agent or solicitor engaged by us will be payable by the Buyer.
17.3 If the Buyer:
17.3.A fails to pay for any Goods on the due date; or
17.3.B otherwise breaches this agreement and fail to rectify such breach within seven (7) days’ notice; or
17.3.C cancels delivery of Goods; or
17.3.D commits an act of bankruptcy, or allows a trustee in bankruptcy or receiver and manager to be appointed to the Buyer or any of the Buyers property; or
17.3.E allows distress to be levied or a judgment, order or security to be enforced, or to become enforceable against the Buyers property; or
17.3.F is a company and proceedings are commenced to wind the Buyer up or any of the Buyers subsidiaries; or a controller, receiver, administrator, liquidator or similar officer is appointed to the Buyer or in respect of any part of the Buyers property; then we and our agents may enter upon the Buyers premises (doing all that is necessary to gain access) where Goods have been supplied under this contract are situated at any time and retake possession of any or all of such Goods supplied to the Buyer; and we reserve the right to resell the Goods concerned and terminate the agreement.
17.4.A If we conduct a re-sale pursuant to clause 17.3;
(a) we may do so at our premises or place; and
(b) the re-sale may, at our discretion, be by public or private sale; and
(c) we may recover from the Buyer as liquidated damages for loss of bargain, the difference between the re-sale price and the unpaid price (together with any incidental damages, such as holding expenses and charges but less expenses saved as a result of the Buyers breach).
17.4.B If applicable Goods cannot be sold within three (3) months of the first attempted sale, those Goods will be deemed to have a re-sale price of nil.
18 Buyer’s Cancellation
18.1 Unless otherwise agreed in writing, the Buyer will have no right to cancel an order which has been accepted by us. If a right of cancellation is expressly reserved to the Buyer, such right of cancellation must be exercised by notice in writing from the Buyer to us not later than 7 days prior to the estimated date of delivery by the manufacturer or us as the case may be. Upon cancellation prior to delivery any deposit paid by the Buyer will be forfeited to the manufacturer or us (as the case may be).
19 Warranty and Liability
19.1 We make no express warranties or guarantees as to the Goods except that to the extent that the Goods supplied are covered by any manufacturer’s warranty, we will pass on to the Buyer the benefit of the manufacturer’s warranty, or if the Goods are purchased by a Consumer, in addition to passing on the said warranties, the guarantees implied under the ACL.
19.2 Upon discovery of any defect in the Goods supplied by us the Buyer will immediately notify that to us in writing. The Buyer will not carry out any remedial work to allegedly defective Goods without first obtaining our written consent to do so.
19.3 We exclude all conditions, warranties, guarantees and terms, whether expressed or implied by law or otherwise in respect of the Goods which may apart from this clause be binding upon us, except any implied conditions, warranties and guarantees the exclusion of which would contravene any statute or cause this clause to be void.
19.4 To the extent permitted by statute, our liability, if any, arising from the breach of any implied conditions or warranties in relation to the supply of Goods other than to a Consumer , will at our option be limited to:
19.4.A The replacement of the Goods or re-supply of the Goods.
19.4.B The repair of the Goods.
19.4.C The payment of the cost of replacement of the Goods.
19.4.D The payment of the cost of repair of the Goods.
19.5 Subject to clause 19.6, we exclude all liability to the Buyer in negligence for acts or omissions of us, our employees, agents and contractors and all liability to the Buyer in contract for consequential or indirect loss or damages, arising out of or in connection with the supply by us of Goods.
19.6 As to all Goods supplied to a Consumer we acknowledge they are supplied with consumer guarantees under the ACL, and the Buyer is entitled to have the Goods repaired or replaced if defective but not subject to a major failure within the meaning of the ACL; and if subject to a major failure, to a replacement of the Goods or refund of the purchase monies, together with compensation for any reasonably foreseeable loss or damage.
19.7 The Buyer expressly acknowledges and agrees that it has not relied upon any advice given by us, our agents or employees in relation to the suitability for any purpose of Goods or materials supplied by us.
20.1 The Buyer hereby charges in favour to us any land that the Buyer owns (or may acquire after the date hereof) as security for any and all moneys owning to us and hereby authorise us to register a caveat over the land if the Buyer defaults on payment to us
21 Security Interest under the PPSA
21.1 A term contained in these Terms and Conditions that is defined in the PPSA (but not otherwise defined in these Terms and Conditions) has the meaning given to it in the PPSA. The Buyer acknowledges this is a Security Agreement under the PPSA.
21.2 In consideration for us supplying Goods to the Buyer under these Terms and Conditions, the Buyer :
21.2.A agrees to treat the security interest created under these Terms and Conditions as a continuing and subsisting security interest in the relevant Goods with priority over any registered or unregistered general (or other) security and any unsecured creditor (even if the Goods become fixtures before being paid for in full), and will upon request from time to time do all things necessary to perfect our security interest;
21.2.B agrees to grant to us a PMSI;
21.2.C agrees that the PMSI granted herein will continue to apply to any Goods supplied by us or proceeds of sale of Goods;
21.2.D agrees that the PMSI has attached to all Goods now or in the future supplied to the Buyer by us (ie including after acquired Goods); and
21.2.E agrees, until title in the Goods pass to it, to keep all Goods free and ensure all Goods are kept free of any charge, lien or security interest except as created under these Terms and Conditions, and not otherwise deal with Goods in a way that will or may prejudice any rights of us under these Terms and Conditions or the PPSA;
21.3 We reserve the right to register a financing statement under the PPSA in respect of the Goods. Costs of that may be charged to the Buyers account. The Buyer waives its rights to receive a copy of any financing statement, financing change statement or verification statement that may be registered, issue or received at any time.
21.4 The Buyer irrevocably grants us the right to enter without notice any premises or property where the Goods may be, without us being in any way liable to the Buyer or any other person if we or the Buyer exercise any rights under the PPSA or otherwise at law upon such event (and the Buyer will indemnify us against any such liability).
The Buyer agrees to waive its rights to notices and statements under the following sections of the PPSA: section 95 (as to notice of removal of an accession) to the extent that it requires the secured party to give a notice to the grantor ; subsection 121(4) (as to notice of action under subsection 120(2)) subsection 123(2) (as to notice to seize collateral); section 130 (as to notice of disposal) to the extent that it requires the secured party to give notice to the grantor; subsection 132(3)(d) (content of statement of account after disposal); subsection 132(4) (as to statement of account if no disposal); section 135 (as to notice of retention); AND the Buyer agrees that sections 125, 142, 143 and subsection 129(3) of the PPSA do not apply and further that the Buyer waives it’s rights under subsections129(2) and 134(2) of the PPSA.