1. "Seller" shall mean Get Smart Technology Pty Ltd and its successors and assigns.
2. "Buyer" shall mean the buyer or any person or Seller rating on behalf of and with the authority of the buyer.
3. "Guarantor" means that person (or persons), or entity who agrees herein to be liable for the debts of the buyer is f a Limited Liability Seller on a principal debtor basis.
4. "Goods" shall mean Goods supplied by the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
5. "Services" shall mean all services supplied to the Seller to the Buyer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined supra).
6."Price" shall mean the cost of the goods as agree between the Seller and the Buyer subject to clause 4 of this contract.
1. Any instructions received by the Seller from the Buyer for the Goods shall constitute acceptance of the terms and conditions contained herein. Upon acceptance of these terms and conditions by the Buyer the terms and conditions are irrevocable and an only re reminded in accordance with these terms and conditions or with the written consent of the manager of the Seller.
2. None of the Seller's agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
1. The Goods and/or Services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Buyer.
2. The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less Thant the quantity purchased provided that;
a) such discrepancy in quantity shall not exceed 5%
b) the price shall be adjusted pro rata to the discrepancy.
The Goods and/or Services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Buyer.
The Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchases provided that;
such discrepancy in quantity shall not exceed 5%
The Price shall be adjusted pro rata to the discrepancy.
4. Price and Payment
At the Sellers sole discretion;
The Price shall be as indicated on invoices provided by the Seller to the Buyer in respect of Goods supplied; or
The Price shall be the Price of the Seller’s current Price at the date of delivery of the Goods.
The Price of the Goods shall be the Seller’s quoted price which shall be binding upon the seller provided that the Buyer shall accept the Seller’s quote within thirty (30) days.
2. At the absolute discretion of the Seller, a deposit may be required. This deposit, at the Sellers absolute discretion shall apply for Goods/Service where the Price exceeds $2,000 (GST Excl). The deposit amount shall be 20% of the Purchase Price.
3. Time for payment for the Goods and/or Service shall be of the essence and will be stated on the invoice work authorisation and quotation form or any other order forms. If not time is stated than payment shall be due on within seven (7) days of delivery of the Goods/Services.
4. For existing Buyers, and at the absolute discretion of the Seller payment may be made 21 days from the invoice date.
5. Payment will be made by cash, or by cheque or by bank cheque, or by automatic payment EFT, or any other method as agreed to between the Buyer and the Seller.
6. The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable except to the extend that such taxes are expressly included in any quotation given by the Seller.
If the Seller retains property in the Goods nonetheless all risk for the Goods passes to the Buyer on delivery.
If any of the Goods are damaged or destroyed prior to property in them passing to the Buyer, the Seller is entitled, without prejudice to any of its other rights or remedies under these terms and conditions (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these terms and conditions. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries. The Seller will apply for the insurance proceeds as follows.
A). First, in payment of the Price of the Goods that are damaged or destroyed, if unpaid;
B). Second, in payment of the outstanding Price of any other Goods supplied to the Buyer by the Seller whether under the terms and conditions or otherwise;
C). Third, in payment of any other sums payable to the Seller by the Buyer on any amount;
D). fourth, any balance is to be paid to the Buyer.
6. Delivery of Goods
A). Delivery of goods shall be made to the Buyer’s address. The Buyer shall make all arrangements necessary to take delivery of the goods whenever they are tendered for delivery.
B). The Seller may delivery the Goods by separate instalments (in accordance with the agreed delivery schedule). Each separate instalment shall be invoiced and paid for in accordance with the provisions in this agreement.
C). The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
D). The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
E). Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) promptly the buyer shall be bound to accept delivery and to pay for the Goods in full provide that delivery shall be tendered at any time within 3 months of the delivery date.
7. Return of Goods
Except as provided in this clause, the Buyer is not entitled to return the Goods to
the Seller for any reason. For defective Goods which the Buyer is entitled to reject,
the Seller’s liability is limited to either (at the Seller’s discretion) repairing or replacing
the Goods, or refunding the Price provided that;
A). The buyer must notify the Seller within 7 days of delivery that the Goods are defective;
B). The Seller is given a reasonable opportunity to investigate the Buyer’s claim;
C). The Seller will not be liable for Goods which have not been stored or used in a proper manner; and
D). The Seller will not be liable to pay the Buyer any amount more than the amount (if any) the Seller received from the supplier for the defective Goods.
The Buyer shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Buyer believes the Goods are defective in any way. If the Buyer shall fail to comply with these provisions the Goods shall be conclusively pressed to be in accordance with the terms and conditions and free from any defect or damage.
The Seller warrants the Goods fro a period of 36 months from the date of installation. This warranty is listed to the replacement of defective parts and labour only. If the Seller services equipment that is not covered by the warranty or proves not to be faulty then the Seller may charge for its Services.
10. The Commonwealth Trade Practices Act 1974 and Fair Trading Acts
Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Commonwealth Trade Practices Act 1974 or the Fair Trading Acts in each of the states and Territories of Australia, except to the extend permitted by those Acts where applicable.
11. Buyers Disclaimer
The Buyer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and Buyer acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Seller which warranty shall be personal to the Buyer and shall not be transferable to any subsequent Buyer.
12. Default & Consequences of Default
Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per calendar month ad shall accrue at such a rate after as well as before any judgement.
If the Buyer defaults in payment of any invoice when due, the Buyer shall indemnify the Seller from and against all the Seller’s costs and disbursement including on a solicitor and own client basis and in addition all of EC Credit Control Pty Ltd’s costs of collection.
Without prejudice to any other remedies the Seller may have if at any time the Buyer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Buyer adana of its other obligations under the terms and conditions. The seller will not be liable to the Buyer for any loss or damage the Buyer suffers cause the Seller exercised its rights under this clause.
If any account remains unpaid at the end of the second month after supply of the Goods or Services the following shall apply: An immediate amount of $25.00 will be levied for administration fees which sum shall become immediately due and payable.
In thee event that:
A). any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
B). The buyer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
C). a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Buyer or any asset of the Buyer; then
D). the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and
E). all amounts owing to the Seller shall, whether or not due for payment, immediately become due ad payable.
It is the intention of the seller and agreed by the Buyer that property in the goods shall not pass until
A). They Buyer has paid all amounts owing for the particular Goods; and
B). The Buyer ha met all other obligations due by the Buyer to the Seller in respect of all contracts between the Seller and Buyer, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Seller shall have received p payment ad all other obligation of the Buyer are met.
It is further agree that:
A). The Buyer shall not deal with the money of the Seller in any way which may be advise to the Seller.
B). Until such time as ownership of the Goods shall pass from the Seller to the Buyer may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
C). If the Buyer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
D). Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the seller’s ownership of rights in respect of the Goods shall continue.
E). The Buyer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.
F). The Seller may require payment of the price or the balance of the price due together with nay other amounts due from the Buyer to the Seller arising out of these terms and conditions, and the seller may take any lawful steps to require payment of the amounts due and the Price.
G). The Seller can issue proceeding to receive the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Buyer.
14. Security ad Charge
Notwithstanding anything to the contrary contained herein or any other rights which the seller may have howsoever:
A). Where the Buyer and/or Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Buyer and/or the Guarantor agree to mortgage and/or charge al of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure al amounts and other monetary obligations payable under the terms and conditions. The Buyer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments na other monetary obligations payable hereunder have been met.
B). Should the Seller elect to proceed in any manner in accordance with these clause and/or its sub-clauses, the Buyer and/or Guarantor shall indemnify the seller from and agains all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
C). To give effect to the provisions of clause (14.1 (a) and (B) inclusive hereof the Buyer and/or the Guarantor (if any) do hereby irrevocably nominate constituent and appoint the Seller or the seller’s nominee, namely EC Credit Control Pty Ltd as the Buyer’s and/or Guarantor’s true and lawful attorney to execute mortgages and wages (whether registrable or not) including such other terms and conditions as the Seller and/or EC Credit Control Pty Ltd shall think fit in his/her.its/their absolute discretion against the joint and/or several interest of the Buyer and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Buyer’s and/or Guarantor’s name as may be necessary to secure the said Buyer’s and/or Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings and further to execute all or any documents in the Seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
The Seller may cancel these terms and conditions or cancel delivery of Goods and Services at any time before the Goods are delivered by giving written notice. On giving such notice the seller shall not be liable for any loss or damage whatever arising from such cancellation.
16. Privacy At 1988
The Buyer and/or the Guarantor/s are for the seller to obtain from a credit reporting agency a credit report containing personal credit information about the Buyer and Guarantor/s in relation to credit provided by the Seller.
The Buyer and/or the Guarantor/s agree that the Seller may exchange information about the Buyer and Guarantor/s with those credit provider named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
A). To assess an application by Buyer;
B). To notify other credit providers of a default by the Buyer.
C). To exchange information with other credit providers as to the status of this credit account, where the Buyer is in default with other edit providers; and
D). To assess the edit worthiness of Buyer and/or Guarantor/s.
The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(H) Privacy Act 1988).
The Buyer agrees the Personal Data provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agree between the Buyer and Seller or required by law from time to time.
A). Provision of Goods & Services;
B). Marketing of Goods and or Services by the Seller, its agents or distributors in relation to the Goods and Services;
C). analysing, verifying and/or checking the Buyer’s credit, payment and/or status in relation to the provision Goods or Services;
D). Processing of any payment instructions, direct debit facilities and/or credit facilities requested by Buyer; and
E). enabling the daily operation of buyer’s account and/or status in relation to the provision of Goods or Services;
The Seller may give, information about the Buyer to a credit reporting agency for the following purposes:
A). to obtain a consumer credit report about the buyer; and or
B). allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.
17. Limitation of Liability
The Buyer agrees that the Seller has not liability for ay damage or lesses arising from or connected to the Goods and Services, regardless of cause.
If the Goods are repossessed because of a breach of these Terms and Conditions of Trade, the Buyer authorises the Seller to enter onto any or tenanted by the Buyer for the purposes of removing the goods. The Buyer shall indemnify the Seller against any damage to the Buyers premises. Such damage shall include, but is not limited to holes in walls, able track marks or any other marks or damage.
18. Lien and Stoppage in Transit
Where the Seller has not received or been tendered the whole of the Price, or where a billon exchange or other negotiable instrument or the like has been dishonoured, the Seller shall have:
A). a lien on the Goods;
B). the right to retain them for the Price while the Seller is in possession of them;
C). a right of stopping the Goods in transit whether or not delivery ha been made or ownership has passes; and
D). a right or resale;
E). The foregoing rights of disposal;
providing that the lien of the Seller continue despite the commencement of proceedings or judgement for the Price having been obtained.
A). If any provision of these terms and conditions shall be invalid, void, or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
B). All Goods supplied by the Seller are subject to the laws of New South Wales and the Seller takes no responsibility of changes in the law which affect the Goods supplied.
C). The Buyer shall not set off agains the Price amounts due from the Seller.
D). The Weller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
E). The Seller reserves the right to review these terms and conditions at any time an from time to time. If, following any such review, here is to be any change in such terms and conditions, that change will take effect from the date on which the seller notifies the Buyer of such change.
F). In the event of any breach of this contract by the Seller the remedies of the Buyer shall one limited to damages. Under no circumstances shall the liability of the Seller exceed the price of the Goods.