TERMS AND CONDITIONS
TERMS AND CONDITIONS
These are the entire Terms and Conditions of all services, products and merchandise ("the products") supplied by AARTS and its associated and subsidiary Companies (all of which are referred to as "the Supplier") to any person, firm or company placing an order with the Supplier for the purchase of any services and products ("the Customer"). Except as otherwise expressly agreed upon in writing between a duly authorised officer of the Supplier and the Customer, these Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear on any provisions to the contrary that may appear on any order form or other document issued by any Customer.
GENERAL
1. All orders placed with the Supplier shall only be accepted subject to these Terms and Conditions. The Supplier may at any time, and from time to time alter these Terms and Conditions and such altered Terms and Conditions shall apply after notification by the Supplier to the Customer.
2. If a customer cancels or alters any order or part order for special service/s and/or products or standard products with special materials at any time after the Supplier has received the order then the Supplier reserves the right to charge to the Customer the costs of any special service/s and/or products or materials already acquired for the order together with the cost of any labour and tooling expended to the date of such cancellation or alterations.
PRICES
3. Prices exclude any applicable Sales Tax, GST, or other applicable tax or duty payable and all such taxes or duties shall be paid by the Customer as an additional charge.
4. All prices shall be those referred to in the Supplier's price lists and/or arrangements current at the date of invoice and prices shall be subject to change without notice.
TERMS OF PAYMENT
5. a) Unless otherwise stated on the invoice all prices are strictly Nett. The granting of credit to a Customer shall be at the absolute discretion of the Supplier and unless otherwise demanded by the Supplier the Customer shall make payment of all amounts payable within the period stated from the last day of the month in which the goods are invoiced by the Supplier.
b) Customers shall not be entitled to withhold payment of any account by reason of any amount query, dispute or set off.
c) No receipt for payment to any representative of the Supplier shall be effective to acknowledge payments to the Supplier unless given on the Supplier's official printed form.
6. If the Customer fails to make payment in accordance with Clause 5, the Supplier shall be entitled to: -
a) Require the payment of cash upon delivery of any further service/s and/or products;
b) Charge an account keeping fee at the rate of two per centum (2%) per month on a cumulative basis on all overdue amounts (including late payment charges and amounts other than the price) calculated on a day to day basis on any monies due but unpaid, such account keeping fee to be computed from the due date for payment AND the parties agree that such account keeping fee is not a penalty but is a true measure of damages incurred by the Supplier. Payments received from the Customer will be credited first against any account keeping fees and all such fees shall be payable on demand;
c) Claim from the Customer all costs, expenses and charges incurred on any account whatsoever including but not limited to any action taken by the Supplier to recover monies or products due from the Customer including but not limited to any mercantile agents costs and legal costs and disbursements on a solicitor-client basis; and
d) Cease any further deliveries to the Customer and to terminate any agreement in relation to service/s and/or products that have not been delivered.
e) Customers having overdue accounts will be precluded from participating in special deals, discounts, bonus payments, redemptions, rebates and all other incentive programs until their accounts are no longer overdue.
DELIVERY
7. Any date or time quoted for delivery is an estimate only and the Supplier shall endeavour to effect delivery at the time or times required by the Customer but failure to do so shall not confer any right of cancellation or refusal of delivery on the Customer or render the Supplier liable for any loss or damages directly or indirectly sustained by the Customer as a result thereof.
8. The Customer shall not be relieved of any obligation to accept or pay for products by reason of any delay in delivery or any strike, lockout, unavailability of materials, accidents to machinery, differences with workman, breakdowns, shortages of supplies or labour, fires, floods, storm or tempest, transport delays, acts of God, restrictions or intervention imposed by any laws, regulations, governments or agencies thereof and any other cause beyond the control of the Supplier or any other cause whatsoever.
9. The Supplier's obligation to delivery shall be discharged on arrival of the products at the Customer's nominated delivery destination, nominated transport company, nominated agent or the address appearing on the invoice. The Customer shall unload the service/s and/or products upon delivery, provided that if the Customer is unable or unwilling to accept physical delivery of the products when the products are ready for delivery, the Supplier shall be entitled to charge a fee for any delay experienced or arrange for the storage of the products at the risk and cost of the customer including all transportation, storage and other consequential costs. The Supplier may, at its discretion, make and invoice partial deliveries and each partial delivery shall be a separate sale pursuant to these Terms and Conditions.
INSPECTION
10. The customer shall examine the products immediately after delivery and the Supplier shall not be liable for any misdelivery, shortage, defect or damage unless the Supplier receives details in writing within seven (7) days of the date of delivery of the products.
PROPERTY AND RISK
11. Notwithstanding delivery of the service/s and/or products or their installation, property in any given products shall remain with the Supplier until the Customer has paid and discharged any and all other indebtedness to the Supplier on any account whatsoever, including all applicable sales taxes and other taxes, levies and duties. Any payment made by or on behalf of a Customer which is later avoided by the application of any Statutory Provision shall be deemed not to discharge the Customer's indebtedness and, in such an event the parties are to be restored to rights which each respectively would have had if the payment had not been made.
12. The risk in the service/s and/or products shall pass to the Customer upon delivery to the Customer or his agent or to a transport company nominated by the Customer.
13. The Customer acknowledges that it is in possession of the service/s and/or products solely as a bailee for the Supplier until payment as defined in clause 5 has been made in full to the Supplier and until such payment:
a) The Customer shall be fully responsible for any loss or damage to the goods whatsoever and howsoever caused following delivery; and
b) The Customer shall store the products separately from its own goods and those of any other party and in a manner which clearly identifies the products, whether as separate chattels or as components, as the property of the Supplier.
c) The customer shall maintain records of products owned by the Supplier identifying them as the Supplier's property, of the persons to whom the products are sold or disposed to and of the payments made by such persons for such products. The Customer shall allow the Supplier to inspect these records and the products themselves on request.
14. The Customer hereby irrevocably grants to the Supplier, its agents and servants, an unrestricted right and license, without notice to enter premises occupied by the Customer to identify and remove any of matter pertaining to any services and/or the products the property of the Supplier in accordance with the Terms and Conditions without in any way being liable to the Customer or any person claiming through the Customer the
15. The Supplier licenses the Customer to install the products. If the products are affixed to other materials, the totality thereof shall be the sole and exclusive property of the Supplier until payment as defined in clause 5 has been made in full to the Supplier unless the other materials or part thereof are or is the property of a party or parties other than the Customer in which case the totality thereof shall be deemed to be owned as tenants in common with such other party or parties in shares corresponding to the respective amounts paid or payable by the Customer in respect of such other party or parties.
16. The right to on-sell, deal or otherwise dispose of the goods in the normal course of trade may be revoked at any time by the Supplier and shall automatically cease if a Receiver is appointed over any of the assets on the undertaking of the Customer or if a winding up order is made against the Customer or if the Customer goes into voluntary liquidation (otherwise than for the purpose of reconstruction or amalgamation) or administration or calls a meeting of, or makes any arrangement or composition with, creditors or commits any act of bankruptcy or where the Customer is in default of any of its obligations to the Supplier.
WARRANTY
17. Subject to payment in full being made as defined in clause 5, the Supplier shall use its best endeavours to pass on to the Customer the benefit of any warranties or guarantees it receives in respect of products or parts thereof.
LIMITATION OF LIABILITY
18. These Terms and Conditions of Sate do not exclude, restrict or modify the application of any provisions of any Commonwealth, State or Territorial Law, which by law cannot be excluded, restricted or modified.
19. a) Sale to Non-Consumers
i) The case of service/s and/or products supplied by the Supplier to a Customer who is not a "consumer" (as defined in the Trade Practices Act, 1974 as amended from time to time ("the Act"), if the service/s and/or products do not correspond with the description of them on the invoice or are defective, then provided that the products are preserved intact and made available for inspection by a representative of the Supplier and are returned to the Supplier in the same order and condition as that in which they were delivered, the Supplier shall at its option replace those service/s and/or products or reimburse the Customer for the amount of the purchase price paid for them, but any claim in this respect must be made in writing within seven (7) days of the date of delivery of those products.
ii) Should the Customer seek indemnity from the Supplier in respect of any claim by a consumer on the Customer as a result of a breach of condition or warranty implied by the Act in a contract for the Supply of service/s and/or products by the Customer to that consumer, sub-paragraph (i) will not apply and in respect of products that are of a kind ordinarily acquired for personal, domestic or household use or consumption ("consumer goods") the Supplier's liability is limited to indemnifying the Customer in accordance with the Act. limited to a liability to pay to the Customer an amount equal to the cost of replacing the service/s and/or products or the cost of obtaining equivalent products or the cost of having the products repaired, whichever is the lesser amount.
b) Sale to consumers:
In the case of service/s and/or products supplied by the Supplier to a Customer who is a consumer, to the extent that the service/s and/or products are not consumer service/s, products or goods, the liability of the Supplier to the Customer for breach of any warranty or condition (other than a warranty or condition implied by section 69 of the Act) or for breach of any duty of care shall in all cases be limited, at the option of the Supplier, to any one or more of the replacement of the service/s and/or products or the supply of equivalent service/s and/or products, the repair of the products or acquiring equivalent service/s and/or products or the payment of the cost of having the product repaired.
c) Except for those conditions and warranties implied by the Act or other sale of service/s and/or products or consumer protection legislation which may not be excluded, the Customer agrees that:
i) It has not relied on any inducement, representation or statement made by or on behalf of the Supplier in purchasing the service/s and/or products and there are no implied conditions
or
warranties herein and no collateral contracts in connection herewith (except such as may be in writing and signed by a duly authorised representative of the Supplier); and
ii) This clause sets out the entire liability of the Supplier in respect of its liability under the Act or otherwise in respect of liabilities to a consumer for a breach of a condition or warranty with respect to the sale of products or goods. In no circumstances will the supplier incur any liability in respect of or arising out of or in connection with any special, consequential, direct or indirect loss, damage, harm or injury suffered or incurred by the Customer.
FORCE MAJEURE
20. The Supplier shall not be liable for any failure or delay in supply or delivery of the service/s and/or products where such failure or delay is wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of the Supplier including, but not limited to, war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention, transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storm or tempest, theft, vandalism, riots, civil commotions or accidents of any kind.
TERMINATION
21. If the customer fails to comply with any of these Terms and Conditions or being a natural person or persons commits any act of bankruptcy, or being a corporation passes a resolution for winding up or liquidation (other than for the purposes of reorganisation or reconstruction) or administration or enters into any composition or arrangement with creditors or if a receiver or manager is appointed for any property or assets of the Customer or becomes liable to be wound up by reason of insolvency or if any petition is presented for its winding up, or if a liquidator is appointed, the Supplier may, in addition to exercising all or any of its rights against the Customer, suspend any further deliveries and immediately recover possession of any products not paid for in accordance with these Terms and Conditions.
RETURNS
22. Other than in respect of the Supplier's obligations pursuant to clause 20 hereof the Supplier shall not be liable to accept any returned service/s and/or products but may in its absolute discretion accept the return of products, provided that such products shall only be accepted for return with the prior written approval of a duly authorised representative of the Supplier. Products returned for credit pursuant to this clause will be subject to a handling and administration charge equivalent to 20% of the invoiced value of the returned products. Return freight and other expenses will be paid for by the Customer and no returns of special products will be accepted. Any returned products must be accompanied with the relevant invoice numbers and/or a Goods Return Authority. .
GOVERNING LAW
23. The Customer agrees that these Terms and Conditions shall be construed according to the laws of the State or Territory as the Supplier may in its sole discretion determine Proceedings may be instituted in such State or Territory as the Supplier may in its sole discretion determine. Failing such determination the Customer consents to any proceedings being instituted and heard by any appropriate Court sitting in the State of New South Wales applying the laws of the State of New South Wales.
SERVICING OF DOCUMENTS
24. The Customer agrees that service of any notices or Court documents may be, effected by forwarding same by pre-paid post or facsimile to the last known address of the Customer.
STATEMENT OF DEBT
25. A certificate signed by a Director, Secretary, Financial Controller or Credit Manager of the Supplier shall be prima facie evidence of the amount of indebtedness of the Customer to the Supplier at that time.
These are the entire Terms and Conditions of all services, products and merchandise ("the products") supplied by AARTS and its associated and subsidiary Companies (all of which are referred to as "the Supplier") to any person, firm or company placing an order with the Supplier for the purchase of any services and products ("the Customer"). Except as otherwise expressly agreed upon in writing between a duly authorised officer of the Supplier and the Customer, these Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear on any provisions to the contrary that may appear on any order form or other document issued by any Customer.
GENERAL
1. All orders placed with the Supplier shall only be accepted subject to these Terms and Conditions. The Supplier may at any time, and from time to time alter these Terms and Conditions and such altered Terms and Conditions shall apply after notification by the Supplier to the Customer.
2. If a customer cancels or alters any order or part order for special service/s and/or products or standard products with special materials at any time after the Supplier has received the order then the Supplier reserves the right to charge to the Customer the costs of any special service/s and/or products or materials already acquired for the order together with the cost of any labour and tooling expended to the date of such cancellation or alterations.
PRICES
3. Prices exclude any applicable Sales Tax, GST, or other applicable tax or duty payable and all such taxes or duties shall be paid by the Customer as an additional charge.
4. All prices shall be those referred to in the Supplier's price lists and/or arrangements current at the date of invoice and prices shall be subject to change without notice.
TERMS OF PAYMENT
5. a) Unless otherwise stated on the invoice all prices are strictly Nett. The granting of credit to a Customer shall be at the absolute discretion of the Supplier and unless otherwise demanded by the Supplier the Customer shall make payment of all amounts payable within the period stated from the last day of the month in which the goods are invoiced by the Supplier.
b) Customers shall not be entitled to withhold payment of any account by reason of any amount query, dispute or set off.
c) No receipt for payment to any representative of the Supplier shall be effective to acknowledge payments to the Supplier unless given on the Supplier's official printed form.
6. If the Customer fails to make payment in accordance with Clause 5, the Supplier shall be entitled to: -
a) Require the payment of cash upon delivery of any further service/s and/or products;
b) Charge an account keeping fee at the rate of two per centum (2%) per month on a cumulative basis on all overdue amounts (including late payment charges and amounts other than the price) calculated on a day to day basis on any monies due but unpaid, such account keeping fee to be computed from the due date for payment AND the parties agree that such account keeping fee is not a penalty but is a true measure of damages incurred by the Supplier. Payments received from the Customer will be credited first against any account keeping fees and all such fees shall be payable on demand;
c) Claim from the Customer all costs, expenses and charges incurred on any account whatsoever including but not limited to any action taken by the Supplier to recover monies or products due from the Customer including but not limited to any mercantile agents costs and legal costs and disbursements on a solicitor-client basis; and
d) Cease any further deliveries to the Customer and to terminate any agreement in relation to service/s and/or products that have not been delivered.
e) Customers having overdue accounts will be precluded from participating in special deals, discounts, bonus payments, redemptions, rebates and all other incentive programs until their accounts are no longer overdue.
DELIVERY
7. Any date or time quoted for delivery is an estimate only and the Supplier shall endeavour to effect delivery at the time or times required by the Customer but failure to do so shall not confer any right of cancellation or refusal of delivery on the Customer or render the Supplier liable for any loss or damages directly or indirectly sustained by the Customer as a result thereof.
8. The Customer shall not be relieved of any obligation to accept or pay for products by reason of any delay in delivery or any strike, lockout, unavailability of materials, accidents to machinery, differences with workman, breakdowns, shortages of supplies or labour, fires, floods, storm or tempest, transport delays, acts of God, restrictions or intervention imposed by any laws, regulations, governments or agencies thereof and any other cause beyond the control of the Supplier or any other cause whatsoever.
9. The Supplier's obligation to delivery shall be discharged on arrival of the products at the Customer's nominated delivery destination, nominated transport company, nominated agent or the address appearing on the invoice. The Customer shall unload the service/s and/or products upon delivery, provided that if the Customer is unable or unwilling to accept physical delivery of the products when the products are ready for delivery, the Supplier shall be entitled to charge a fee for any delay experienced or arrange for the storage of the products at the risk and cost of the customer including all transportation, storage and other consequential costs. The Supplier may, at its discretion, make and invoice partial deliveries and each partial delivery shall be a separate sale pursuant to these Terms and Conditions.
INSPECTION
10. The customer shall examine the products immediately after delivery and the Supplier shall not be liable for any misdelivery, shortage, defect or damage unless the Supplier receives details in writing within seven (7) days of the date of delivery of the products.
PROPERTY AND RISK
11. Notwithstanding delivery of the service/s and/or products or their installation, property in any given products shall remain with the Supplier until the Customer has paid and discharged any and all other indebtedness to the Supplier on any account whatsoever, including all applicable sales taxes and other taxes, levies and duties. Any payment made by or on behalf of a Customer which is later avoided by the application of any Statutory Provision shall be deemed not to discharge the Customer's indebtedness and, in such an event the parties are to be restored to rights which each respectively would have had if the payment had not been made.
12. The risk in the service/s and/or products shall pass to the Customer upon delivery to the Customer or his agent or to a transport company nominated by the Customer.
13. The Customer acknowledges that it is in possession of the service/s and/or products solely as a bailee for the Supplier until payment as defined in clause 5 has been made in full to the Supplier and until such payment:
a) The Customer shall be fully responsible for any loss or damage to the goods whatsoever and howsoever caused following delivery; and
b) The Customer shall store the products separately from its own goods and those of any other party and in a manner which clearly identifies the products, whether as separate chattels or as components, as the property of the Supplier.
c) The customer shall maintain records of products owned by the Supplier identifying them as the Supplier's property, of the persons to whom the products are sold or disposed to and of the payments made by such persons for such products. The Customer shall allow the Supplier to inspect these records and the products themselves on request.
14. The Customer hereby irrevocably grants to the Supplier, its agents and servants, an unrestricted right and license, without notice to enter premises occupied by the Customer to identify and remove any of matter pertaining to any services and/or the products the property of the Supplier in accordance with the Terms and Conditions without in any way being liable to the Customer or any person claiming through the Customer the
15. The Supplier licenses the Customer to install the products. If the products are affixed to other materials, the totality thereof shall be the sole and exclusive property of the Supplier until payment as defined in clause 5 has been made in full to the Supplier unless the other materials or part thereof are or is the property of a party or parties other than the Customer in which case the totality thereof shall be deemed to be owned as tenants in common with such other party or parties in shares corresponding to the respective amounts paid or payable by the Customer in respect of such other party or parties.
16. The right to on-sell, deal or otherwise dispose of the goods in the normal course of trade may be revoked at any time by the Supplier and shall automatically cease if a Receiver is appointed over any of the assets on the undertaking of the Customer or if a winding up order is made against the Customer or if the Customer goes into voluntary liquidation (otherwise than for the purpose of reconstruction or amalgamation) or administration or calls a meeting of, or makes any arrangement or composition with, creditors or commits any act of bankruptcy or where the Customer is in default of any of its obligations to the Supplier.
WARRANTY
17. Subject to payment in full being made as defined in clause 5, the Supplier shall use its best endeavours to pass on to the Customer the benefit of any warranties or guarantees it receives in respect of products or parts thereof.
LIMITATION OF LIABILITY
18. These Terms and Conditions of Sate do not exclude, restrict or modify the application of any provisions of any Commonwealth, State or Territorial Law, which by law cannot be excluded, restricted or modified.
19. a) Sale to Non-Consumers
i) The case of service/s and/or products supplied by the Supplier to a Customer who is not a "consumer" (as defined in the Trade Practices Act, 1974 as amended from time to time ("the Act"), if the service/s and/or products do not correspond with the description of them on the invoice or are defective, then provided that the products are preserved intact and made available for inspection by a representative of the Supplier and are returned to the Supplier in the same order and condition as that in which they were delivered, the Supplier shall at its option replace those service/s and/or products or reimburse the Customer for the amount of the purchase price paid for them, but any claim in this respect must be made in writing within seven (7) days of the date of delivery of those products.
ii) Should the Customer seek indemnity from the Supplier in respect of any claim by a consumer on the Customer as a result of a breach of condition or warranty implied by the Act in a contract for the Supply of service/s and/or products by the Customer to that consumer, sub-paragraph (i) will not apply and in respect of products that are of a kind ordinarily acquired for personal, domestic or household use or consumption ("consumer goods") the Supplier's liability is limited to indemnifying the Customer in accordance with the Act. limited to a liability to pay to the Customer an amount equal to the cost of replacing the service/s and/or products or the cost of obtaining equivalent products or the cost of having the products repaired, whichever is the lesser amount.
b) Sale to consumers:
In the case of service/s and/or products supplied by the Supplier to a Customer who is a consumer, to the extent that the service/s and/or products are not consumer service/s, products or goods, the liability of the Supplier to the Customer for breach of any warranty or condition (other than a warranty or condition implied by section 69 of the Act) or for breach of any duty of care shall in all cases be limited, at the option of the Supplier, to any one or more of the replacement of the service/s and/or products or the supply of equivalent service/s and/or products, the repair of the products or acquiring equivalent service/s and/or products or the payment of the cost of having the product repaired.
c) Except for those conditions and warranties implied by the Act or other sale of service/s and/or products or consumer protection legislation which may not be excluded, the Customer agrees that:
i) It has not relied on any inducement, representation or statement made by or on behalf of the Supplier in purchasing the service/s and/or products and there are no implied conditions
or
warranties herein and no collateral contracts in connection herewith (except such as may be in writing and signed by a duly authorised representative of the Supplier); and
ii) This clause sets out the entire liability of the Supplier in respect of its liability under the Act or otherwise in respect of liabilities to a consumer for a breach of a condition or warranty with respect to the sale of products or goods. In no circumstances will the supplier incur any liability in respect of or arising out of or in connection with any special, consequential, direct or indirect loss, damage, harm or injury suffered or incurred by the Customer.
FORCE MAJEURE
20. The Supplier shall not be liable for any failure or delay in supply or delivery of the service/s and/or products where such failure or delay is wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of the Supplier including, but not limited to, war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention, transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storm or tempest, theft, vandalism, riots, civil commotions or accidents of any kind.
TERMINATION
21. If the customer fails to comply with any of these Terms and Conditions or being a natural person or persons commits any act of bankruptcy, or being a corporation passes a resolution for winding up or liquidation (other than for the purposes of reorganisation or reconstruction) or administration or enters into any composition or arrangement with creditors or if a receiver or manager is appointed for any property or assets of the Customer or becomes liable to be wound up by reason of insolvency or if any petition is presented for its winding up, or if a liquidator is appointed, the Supplier may, in addition to exercising all or any of its rights against the Customer, suspend any further deliveries and immediately recover possession of any products not paid for in accordance with these Terms and Conditions.
RETURNS
22. Other than in respect of the Supplier's obligations pursuant to clause 20 hereof the Supplier shall not be liable to accept any returned service/s and/or products but may in its absolute discretion accept the return of products, provided that such products shall only be accepted for return with the prior written approval of a duly authorised representative of the Supplier. Products returned for credit pursuant to this clause will be subject to a handling and administration charge equivalent to 20% of the invoiced value of the returned products. Return freight and other expenses will be paid for by the Customer and no returns of special products will be accepted. Any returned products must be accompanied with the relevant invoice numbers and/or a Goods Return Authority. .
GOVERNING LAW
23. The Customer agrees that these Terms and Conditions shall be construed according to the laws of the State or Territory as the Supplier may in its sole discretion determine Proceedings may be instituted in such State or Territory as the Supplier may in its sole discretion determine. Failing such determination the Customer consents to any proceedings being instituted and heard by any appropriate Court sitting in the State of New South Wales applying the laws of the State of New South Wales.
SERVICING OF DOCUMENTS
24. The Customer agrees that service of any notices or Court documents may be, effected by forwarding same by pre-paid post or facsimile to the last known address of the Customer.
STATEMENT OF DEBT
25. A certificate signed by a Director, Secretary, Financial Controller or Credit Manager of the Supplier shall be prima facie evidence of the amount of indebtedness of the Customer to the Supplier at that time.