TERMS AND CONDITIONS OF TRADE
1.1 In these terms and conditions (“Terms & Conditions”) the following terms have the following meanings:
(a) ACL means the Australian Consumer Laws and remaining provisions of the
Competition and Consumer Act 2010 (Cth) as amended from time to time.
(b) Business Day means:
(i) for receiving a notice under these Terms & Conditions, a day that is not a Saturday, Sunday, public holiday or bank holiday in the place where the notice is to be received; and
(ii) for all other purposes, a day that is not a Saturday, Sunday, public holiday or bank holiday in Brisbane, Queensland
(c) Customer means the person, firm, organisation, partnership, corporation or other entity purchasing the Goods from the Vadals. Where there is more than one Customer then a reference to the Customer herein includes all Customers jointly and severally.
(d) Delivery means delivery as defined under clause 5.4 and 5.5.
(e) Goods means any goods or services supplied by Vadals to the Customer.
(f) Order means an order for the purchase of Goods by the Customer.
(h) Price means the total price payable for the Goods as indicated on an invoice issued by Vadals to the Customer and includes delivery charges where applicable.
(i) PPSA means the Personal Property Securities Act 2009 (Cth) as amended from time to time, and any term listed in these Terms & Conditions which is defined in the PPSA has the same meaning as defined in the PPSA.
(j) Vadals means Pitworth Pty Ltd ACN 086 383 315 trading as Vadals.
(k) Website means Vadal’s public website available at http://www.vadals.com.au.
1.2 In the interpretation of these Terms & Conditions:
(a) Words importing the singular number include the plural and vice versa. Any gender includes the other genders.
(b) Any reference to a person includes a reference to a body corporate, firm, authority, government or governmental agency or other entity.
(c) A reference to legislation or to a legislative provision includes all regulations, orders, proclamations, notices or other requirements under that legislation or legislative provision. It also includes any amendments, modifications or re- enactments of that legislation or legislative provision substituted for, and any statutory instrument issued under, that legislation or legislative provision.
(d) Any clause headings in, and index to, these Terms & Conditions are for reference purposes only and do not in any way influence or affect the meaning of these Terms & Conditions.
(e) A reference to Vadals or the Customer includes that party's respective executors, administrators, substitutes, successors and permitted assigns.
(f) Where under or pursuant to these Terms & Conditions or anything done under these Terms & Conditions, the day on or by which any act, matter or thing is to be done is not a Business Day such act, matter or thing must be done on the immediately preceding Business Day.
(g) References to clauses, schedules or annexures are references to clauses, schedule or annexures of these Terms & Conditions.
2 TERMS AND CONDITIONS TO APPLY
2.1 Vadals and the Customer agree that these Terms & Conditions apply to the supply of all Goods by Vadals to the Customer despite any prior agreements, offers, dealings or trade usage, or any terms communicated by the Customer to Vadals and are amended only to the extent appearing on any Order document issued by Vadals or as otherwise expressly agreed in writing by Vadals.
2.2 In making an Order for Goods with Vadals, the Customer warrants that:
(a) the Customerhas the power to enter into an agreement with Vadals in respect of the supply of the Goods and has obtained all necessary authorisations to allow the Customer to do so;
(b) the Customer is not insolvent or presumed to be insolvent within the meaning of the Corporations Act 2009 (Cth); and
(c) these Terms & Conditions will create a binding and valid legal obligation on the Customer to purchase the Goods on the terms as appearing on the face of the documents comprising the Order and these Terms & Conditions.
3.1 The Customer must make payment of the Price on cash on delivery terms or on credit terms. Payments may be made in cash, cheque, credit card or such other method as Vadals from time to time approves. The Customer acknowledge that Vadals may impose a charge for accepting payments by credit card and that payment is not deemed made, for payments other than cash, until the funds have cleared in Vadals’ bank account.
3.2 In relation to Orders on credit terms (as stipulated in the Order documentation):
(a) The Customer accepts that Vadals may require the Customer to execute a credit application or other documents as a condition of providing credit facilities to the Customer and such documents are to be read together with these Terms & Conditions and are part of the agreement between the Customer and Vadals.
(b) Vadals may, in Vadals’ absolute discretion, refuse the Customer credit facilities or suspend or discontinue the supply of Goods to the Customer or increase or vary the Customer’s credit limit at any time without any obligation to provide the Customer, or the Customer’s guarantors, a reason for such action.
(c) Unless otherwise stated in any credit application or other document associated with the Customer’s credit terms with Vadals, the Price of Goods delivered to the Customer by Vadals on credit terms must be paid for in full by the Customer within the time prescribed in the Order or, if no time is stipulated, fourteen (14) days after the end of a month in which an invoice for the Goods is provided to the Customer.
(d) Any credit limit is solely for Vadals’ benefit. The Customer’s obligations under these Terms & Conditions remain unchanged if the credit limit is exceeded or not specified at any time.
3.3 In relation to cash on delivery Orders (as stipulated in the Order documentation):
(a) The Customer must pay any deposit required by Vadals, as specified in the Order documentation, upon placing the Order.
(b) The Customer must pay the Price (or the balance of the Price if a deposit is paid for Goods upon the Delivery of the Goods to the Customer.
3.4 Time is of the essence in respect of payment for the Goods. If payment is not made by the due date for payment, the Customer must pay to Vadals on demand interest at the rate of 12% per annum calculated on the daily balance of the amount outstanding until full payment is received. This will not affect Vadals’ other rights.
3.5 Unless otherwise stated, all listing prices and other amounts displayed on the Website, or any product listings, other product or marketing information or any invoices are exclusive of GST and the Customer is required to make payment of GST in addition to the Price at the same time the Customer is required to make payment of the Price.
3.6 Vadals are entitled to recover from the Customer, any and all of Vadals’ expenses including but not limited to any legal costs (on an indemnity basis), stamp duties and other expenses payable under these Terms & Conditions together with any collection costs or dishonoured cheque fees incurred in connection with the enforcement of, or the preservation of any rights under these Terms & Conditions. Such costs, duties and other expenses as well as interest payable pursuant to clause 3.4 may be recovered as a liquidated debt payable on demand.
3.7 Vadals will apply payments received or recovered from the Customer firstly to any costs, expenses and disbursements of Vadals, then to interest under clause 3.4 (if applicable) and then to the balance of money owing including the Price. Any surplus will not carry interest and will be paid to the Customer as soon as reasonably practicable unless Vadals is legally obliged to pay it to someone else.
4 EVIDENCE OF MONIES PAYABLE
4.1 A statement in writing signed by Vadals, stating the balance of the monies due to Vadals by the Customer, will be prima facie evidence of the amount of indebtedness of the Customer, as at the date of the statement.
5.1 The Customer may elect to either have the Goods delivered to the Customer (“Delivery Order”) or to collect the Goods from Vadals (“Collection Order”) as approved by Vadals from time to time and as set out in the Order documentation.
5.2 Vadals will use all reasonable endeavours to deliver the Goods (in the case of a Delivery Order) or have them available for collection (in the case of a Collection Order) on or before the agreed date for delivery or collection (as the case may be) provided that:
(a) the Customer acknowledges that all delivery and collection dates are estimates only and orders may be delayed for any cause including strikes, lockouts, war, breakdowns, accidents, delays in transport, fire or other cause beyond Vadals’ reasonable control;
(b) the Customer must accept delivery or effect collection of an Order even if late; and
(c) Vadals will not be liable for any loss, damage or other liability whether in contract, tort, negligence or otherwise and whether directly or indirectly arising from the Goods not being delivered or made available for collection by any agreed delivery or collection date for any reason.
5.3 Vadals may deliver the Goods to the Customer in instalments and in which case Vadals may separately invoice the Customer for payment for each delivery instalment (which shall be taken to be the subject of a separate and distinct contract as between Vadals and the Customer) with the Price being apportioned in accordance with the proportion of Goods delivered.
5.4 For a Delivery Order, the following applies:
(a) Delivery of the Goods to the Customer occurs and risk in the Goods passes to the Customer:
(i) if Vadals is the carrier, when the Goods are delivered by Vadals to the agreed delivery address or into the hands of any subsequent third party carrier; or
(ii) if Vadals is not the carrier, when the Goods have been collected from Vadals’ premises by the third party carrier.
(b) The Customer is responsible for insuring the Goods during third party transport and, although Vadals reserves the right to make and/or approve any arrangements regarding the transportation of the Goods from Vadals to the Customer, any third party transportation arranged by Vadals does not make Vadals the carrier and is deemed made at the Customer’s order.
(c) Additional fees, as specified by Vadals in a quotation or otherwise, may be charged by Vadals for the packaging, transportation and installation of the Goods. Unless otherwise stated, such costs will be added to and form part of the Price.
(d) The Goods will be despatched to the address or addresses nominated by the Customer as stated in the Order documentation or otherwise approved by Vadals. If the Customer is not present at the specified address for delivery then Vadals may unload the Goods at that address and the Goods shall be deemed delivered and received by the Customer and Vadals will not be liable for any claims, costs or losses suffered by the Customer.
5.5 For a Collection Order, the following applies:
(a) Delivery of Goods to the Customer occurs and risk in the Goods passes to the Customer when the Customer or someone on the Customer’s behalf collects the Goods from Vadals’ collection point.
(b) A packaging fee may be charged where Vadals’ wrapping or packaging is required.
(c) Vadals will notify the Customer as soon as each Order is ready for collection. Within seven (7) days of receiving notification that an Order is ready forcollection pursuant to this clause, the Customer must remove the Goods from Vadals’ collection point. Vadals reserves the right to charge storage and handling fees for Goods not collected on time.
6 RETENTION OF TITLE
6.1 Notwithstanding risk in the Goods passing at Delivery, property and title to the Goods remains with Vadals, and will not pass to the Customer, until the Price and any other monies owed to Vadals by the Customer, whether in respect of the subject or any other Order or for any other reason, have been paid for in full. If payment in full is not made when required pursuant to clause 3, Vadals has the right, with or without prior notice, to recover possession of the whole or any part of any Goods in the Customer’s possession or control to the extent of the monies owed to Vadals, and the Customer agree that Vadals may enter any premises occupied or controlled by the Customer to satisfy that purpose, without prejudice to other rights and remedies.
6.2 Until the Price and all other amounts owed to Vadals by the Customer have been paid for in full:-
(a) the Customer will hold the Goods as Vadals’ fiduciary and bailee;
(b) the Customer will not encumber or allow any person to take security or control over the Goods;
(c) the Goods must be stored separately and in a manner enabling them to be identified as Vadals’ goods and cross-referenced to particular invoices and the Customer acknowledge that, should the Customer process or mix the Goods with other products or items such that the Goods are no longer separately identifiable, the Customer and Vadals will be owners in common of the new product;
(d) the Customer may only sell or dispose of the Goods in the ordinary course of the Customer business as bailee for Vadals and in such case will hold the proceeds of sale in a separate account on trust for Vadals and account to Vadals for those proceeds; and
(e) until title to the Goods passes to the Customer pursuant to clause 6.1, Vadals may require the Customer to return the Goods to Vadals on demand and may enter the Customer premises to inspect or repossess the Goods.
6.3 Despite clauses 6.1 and 6.2, Vadals will be entitled to maintain an action against the Customer for the Price of the Goods.
6.4 To avoid any doubt, for the purposes of the PPSA, it is the intention by this clause 6 that there is created for Vadals’ benefit a Purchase Money Security Interest in the Goods and the Customer agrees that these Terms & Conditions constitute a security agreement for the purposes of the PPSA.
6.5 The Customer agrees that Vadals may register any security interest created by these Terms & Conditions or otherwise arising at law against the Customer or in the Goods (including but not limited that under clause 6.4) on the Personal Property Securities Register and the Customer waives all rights to receive a verification statement in respect of any financing statement or financing change statement registered by Vadals in respect of any personal property or any other notification required under the PPSA to the extent permitted by the PPSA.
6.6 The parties agree that, insofar as the provisions of Chapter 4 of the PPSA are for the Customer’s benefit or place an obligation on Vadals, those provisions will apply only to the extent that they cannot be contracted out of or to the extent that Vadals otherwise agrees in writing.
6.7 The Customer will immediately notify Vadals of any material change in the Customer’s business practices of using or selling the Goods which would result in a change in the classification of the Goods or the proceeds derived therefrom.
7 CANCELLATION AND RETURNS
7.1 No Order may be cancelled, and all cancellations are at Vadals’ discretion, on or after an Order has been made. An Order is deemed made on the earlier of the following to occur:
(a) the Customer has authorised or directed the making of the Order in writing;
(b) the Customer has made payment of a deposit pertaining to the Order;
(c) Forty-eight (48) hours after Vadals has advised the Customer in writing that the Order has been accepted such as by providing the Customer with a tax invoice pertaining to the Order.
7.2 If Vadals, at its discretion, accepts a cancellation from the Customer after an Order has been made, the Customer acknowledges that the Customer may be charged such cancellation fee and other charges as Vadals in its absolute discretion deems reasonable.
7.3 Vadals may, at is discretion, cancel an Order after an Order has been made and in such case, upon refund of and Price or part thereof paid by the Customer in respect of the Order the Customer agrees that Vadals is immediately discharged from any further obligation or liability in respect of the Order.
7.4 At Vadals’ discretion, Vadals may accept return of faulty or defective Goods or refund any part of the Price that reasonably compensates for the fault or defect.
7.5 Vadals will not accept return of Goods unless notice of the defect is given to Vadals within seven (7) days of the date of Delivery. The Customer must allow Vadals a reasonable period of time to respond and, at Vadals’ request, inspect the Goods.
7.6 If Vadals agree to a return of the Goods for any reason, the Customer must return the Goods with all associated material such as packaging, brochure and instruction manuals in reasonable condition having regard to the period of time between the date of Delivery and the date of return.
8.1 Without limiting any other clause in these Terms & Conditions, if:
(a) there is any default by the Customer in making due payment to Vadals of any monies owing by the Customer;
(b) there is another breach by the Customer of any other of these Terms & Conditions;
(c) the Customer being a company resolves to be wound up or an administrator, liquidator or provisional liquidator, or receiver, manager or controller is appointed in respect of the Customer;
(d) the Customer being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
(e) the Customer being a natural person, dies, loses capacity or becomes bankrupt; or
(f) the Customer ceases or threatens to cease conducting the Customer’s business in substantially the same manner or in its ordinary course, including by transfer of the whole or a majority share in the Customer or the Customer’s business to a third party without Vadals prior approval;
(g) Vadals may immediately terminate its agreement, including any Order, to provide Goods to the Customer forthwith; and
(h) all monies payable by the Customer to Vadals will, at Vadals’ election, become immediately due and payable notwithstanding the due date for payment stated in any Order documentation or previously agreed by Vadals.
8.2 At any time after Vadals terminates its agreement with the Customer for any reason and in addition to any other rights of Vadals, Vadals:
(a) may repossess any Goods for which payment in full has not been made or in respect of which title has not passed to the Customer under clause 6;
(b) is entitled to charge the Customer for the full Price of any Goods in relation to Orders made by the Customer up to the date of termination and may retain any moneys already paid by the Customer for any such Goods;
(c) will be regarded as discharged from any further obligations under any existing or future Orders; and
(d) may pursue any additional or alternative remedies provided by law.
9.1 The Customer releases and indemnifies Vadals on a continuing basis from and against any liability, loss, expense or demand for or arising from:
(a) any false, misleading, deceptive or misdescriptive representation or statement made by the Customer in respect of the Goods to any person;
(b) any improper use or mismanagement of the Goods by the Customer including the matters listed at clause 11.6; and
(c) the Customer’s failure to comply with these Terms & Conditions, any Order documentation terms or other agreement in writing between the Customer and Vadals.
9.2 This indemnity survives completion or termination of Vadals’ agreement with the Customer by either of the Customer or Vadals and for any reason, until the Customer is released in writing by Vadals.
10 RELIANCE AND WARRANTIES
10.1 Subject to clause 11.2, to the fullest extent permitted by law:
(a) the Customer acknowledges that, in deciding to enter into an agreement with Vadals on these Terms & Conditions, the Customer has not relied in any way on Vadals’ skill or judgement and that the Customer has satisfied itself as to the condition and suitability of the Goods and their fitness for the Customer’s purpose, and does not rely on any representation, warranty or other term made by or on Vadals’ behalf which is not set out in these Terms & Conditions or any of Vadals’ Order forms and documents;
(b) the Customer will, prior to the acceptance of the Goods by the Customer, examine the goods and satisfy the itself as to their compliance with any relevant specifications as well as their condition, suitability and fitness; and
(c) if the Goods are previously used Goods, the Customer acknowledges that the fitness for purpose and suitability of the Goods may be affected due to the previous use.
11 LIABILITY OF THE SUPPLIER
11.1 The Customer agrees that the Goods are acquired by the Customer for business use and are not acquired for personal, domestic or household use or consumption.
11.2 Nothing in these Terms & Conditions is intended to exclude, restrict or modify rights which the Customer may have under the ACL or any other legislation which may not be excluded, restricted or modified by agreement. If under any law, any terms which apply to the supply of Goods under these Terms & Conditions cannot legally be excluded, restricted or modified then those terms apply to the extent required by that law. All terms which would otherwise be implied are excluded except as stated in these Terms & Conditions.
11.3 Subject to clause 11.2, Vadals make no warranties or representations under these Terms & Conditions including but not limited to the quality or suitability of the Goods. Vadals’ liability in respect of these warranties is limited to the fullest extent permitted by law.
11.4 To the extent permitted by law, Vadals are not liable for any damage, economic loss or loss of profits whether direct, indirect, general, special or consequential arising out of a breach of an implied or expressed term, or suffered as a result of or in connection with these Terms & Conditions or Vadals’ negligence or that of Vadals’ employees or agents.
11.5 To the extent permitted by law, the maximum for which Vadals may be held liable to the Customer or any third party in relation to any issue or defect in the Goods or their supply is limited to, at Vadals’ discretion:
(a) repair of the Goods; or
(b) replacement of the Goods;
and ultimately, the total Price of the Goods in the subject Order.
11.6 Notwithstanding anything to the contrary in these Terms & Conditions, but otherwise to the extent permitted by law, Vadals shall not be liable for any loss or damage (including defect in the Goods) which is caused or partly caused by or arises as a result of:
(a) the Customer failing to properly maintain or store any Goods;
(b) the Customer using the Goods for any purpose other than that for which they were designed;
(c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Customer failing to follow any instructions, guidelines or recommendations provided by Vadals regarding the Goods;
(e) any modification of the Goods not authorised or conducted by Vadals;
(f) any subjection of the Goods to unusual or non-recommended physical or environmental stress; or
(g) fair wear and tear, any accident, or act of God.
11.7 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by Vadals nor to withhold payment of any invoice because all or part of that invoice is in dispute.
12 CHARGING CLAUSE & POWER OF ATTORNEY
12.1 In consideration of Vadals agreeing to supply Goods to the Customer and to secure payment of all monies which are or may become payable by the Customer to Vadals under these Terms & Conditions, the Customer hereby charges with the due payment of all of those monies all of the Customer’s right title and interest (whether joint or several) in any land, realty, personal property or other assets capable of being charged, owned by the Customer either now or in future, and the Customer consents to Vadals lodging a caveat or caveats over such property to protect Vadals’ interest.
12.2 Upon demand by Vadals, the Customer agrees to immediately execute a mortgage, charge or other instrument in terms satisfactory to Vadals to further secure the Customer’s indebtedness to Vadals.
12.3 The Customer hereby irrevocably and unconditionally appoints Vadals and each of Vadals’ directors and authorised representatives to be the Customer’s lawful attorneys jointly and severally to execute any mortgage, charge or other instrument or carry out any action required by the Customer that the Customer fails to take after being obliged to do so under these Terms & Conditions.
13.1 In the event that the whole or any part or parts of any clause in these Terms & Conditions are found to be unenforceable by a Court of competent jurisdiction then such clause or part thereof shall be, to that extent, severed from these Terms & Conditions without effect to the validity and enforceability of the remainder of these Terms & Conditions.
13.2 These Terms & Conditions shall be governed by and construed in accordance with the laws of the State of Queensland. The Customer and Vadals submit to the non-exclusive jurisdiction of the Courts of the State of Queensland in the Brisbane CBD.
13.3 Notice required to be given by the Customer to Vadals pursuant to these Terms & Conditions may be delivered personally at Vadals’ business premises notified on the Website, or sent by post to Vadals’ postal address notified in the Website, or sent by email to Vadals’ email address for enquiries notified on the Website and, unless the contrary is proved, shall be taken as delivered when actually received by Vadals.
13.4 Notice to be given to the Customer by Vadals may be delivered personally or sent by post to the Customer’s last known address, or emailed to the Customer at any email address the Customer has previously used to contact Vadals, and shall be taken as delivered when delivered (in case of delivery in person) or on the second business day following posting (in case of post) or when Vadals’ email server indicates the email has been relayed to the Customer’s email address without error or delay irrespective of the time the email is subsequently read (in the case of email).
13.5 These Terms & Conditions supersede those in any previous form and do not affect the validity of any previous guarantee and may only be varied or added to by written agreement signed by an authorised representative of both the Customer and the Vadals.
13.6 The Customer agrees that Vadals may amend these Terms & Conditions at any time by notice to the Customer or by updating the Terms & Conditions as they appear on the Website. The Customer will be taken to have accepted such changes on the next occasion on which the Customer makes an Order.
14.2 Vadals may require the Customer to sign any additional privacy statements or declarations required for the provision of credit terms.