Terms & Conditions
You are required to read and agree to the Thomas Warburton Terms and Conditions before completing the Credit Account Application.
1. Definition
In these terms and conditions
(a) "Buyer" means the entity purchasing the goods upon these terms and conditions.
(b) "Costs of Delivery" means the costs of transportation of the goods to the place of delivery.
(c) "Seller" means Thomas Warburton Pty Ltd ABN 43 105 050 824 and any related body corporate of the Seller within the meaning of section 50 of the Corporations Law.
2. Binding Terms and Conditions
The only terms which are binding upon the Seller are:
(a) those set out in these terms and conditions or otherwise agreed to in writing by the Seller; and
(b) those, if any, which are imposed by law and which cannot be excluded.
3. Price
(1) Neither the price list of the Seller nor any quotation issued by the Seller to the Buyer is an offer to sell but is an invitation to treat only and the Seller reserves the right to accept or reject in its absolute discretion any orders which may be received by it.
(2) The prices shown in the price list are subject to alteration without notice.
(3) The prices shown in the quotation issued by the Seller to the Buyer apply only to orders placed within 30 days after the date of the relevant quotation and thereafter the prices are subject to alteration without notice.
(4) If the Seller accepts an order it must supply the goods at the price shown in the price list current when the Seller accepts the order, unless otherwise agreed in writing.
(5) The price shown includes GST which must be paid by the Buyer as part of the price.
4. Delivery
A delivery charge will apply to all deliveries with the exception of back order deliveries that are part of the original order that has been partly fulfilled.
5. Acceptance
The Buyer must inspect the goods immediately upon delivery and must within 7 days after the date of inspection give written notice to the Seller, with particulars of any claim that the goods are not in accordance with the contract. If the Buyer fails to give that notice, then to the extent permitted by statute the goods are deemed to have been accepted by the Buyer and the Buyer must pay for the goods in accordance with the provisions of these terms and conditions.
6. Payment
(1) Payment for the goods and GST must be tendered no later than the expiration of the calendar month following the month of sale.
(2) Payment is deemed to be made:
(a) if cash is tendered - on the date it is tendered; and (b) if a cheque (bank or otherwise) or other negotiable instrument is tendered - on the date upon which the cheque or other negotiable instrument is negotiated and cleared by the Seller's bankers.
(3) Time is of the essence in respect of the Buyer's obligation to make payment for goods sold by the Seller to the Buyer.
(4) If the Buyer defaults in making payment to the Seller in accordance with these terms and conditions the Seller may in its absolute discretion:
(a) charge the Buyer interest calculated on the portion of the Buyer's account overdue at the rate of 2% per month from the date on which the default arose; and
(b) require the Buyer to reimburse the Seller for all collection costs including legal costs incurred by the Seller calculated on a solicitor and client basis as a consequence of the Seller instructing its solicitor to provide advice to it in connection with the default and/or to institute such recovery
process as the Seller in its discretion decides.
(5) Any payments tendered by the Buyer to the Seller must be applied as follows:
(a) first as reimbursement for any collection costs incurred by the Seller in accordance with clause
6(4)(b);
(b) secondly, in payment of any interest charged to the Buyer in accordance with clause 6(4)(a); and
(c) thirdly, in satisfaction or part satisfaction of the oldest portion of the Buyer's account.
7. Returns
(1) The Buyer must not return any goods which the Buyer claims are not in accordance with the contract (whether or not the goods are deemed to be accepted by the Buyer) unless the Seller has first given its written approval to their return.
(2) If the Seller has given its written approval to the return of goods deemed to be accepted under clause 7(1):
(a) the Seller will only give credit for the goods returned if they are in a saleable condition; and
(b) the Seller may charge a handling charge equivalent to 10% of the price of the goods returned, unless the Buyer is a "consumer" for the purpose of the Trade Practices Act 1974 or similar State or Territory legislation.
8. Risk and Insurance
Goods supplied by the Seller to the Buyer are at the Buyer's risk immediately on delivery to the Buyer or into the Buyer's custody (whichever is the sooner). The Buyer must insure the goods at its cost from delivery of the goods until they are paid for in full against such risks as it thinks appropriate and must note the interest of the Seller on the policy and produce a certificate to this effect to the Seller on request.
9. Retention of Title
(1) The Buyer acknowledges that the ownership of goods delivered by the Seller to the Buyer (the
"goods") is only transferred to the Buyer when the Buyer has paid all sums owing to the Seller on any account whatsoever and until that time the Seller has the right to call for or recover the goods at its option (for which purpose the Seller's employees or agents may enter the Buyer's premises) and the Buyer is obliged to deliver up the goods if so directed by the Seller.
(2) The Buyer agrees to keep the goods in a fiduciary capacity for the Seller until such time as ownership is transferred to the Buyer.
(3) Despite the foregoing, the Buyer may sell the goods to a third party in the ordinary course of
business.
10. Insolvency of buyer
(1) A breach of contract is deemed to occur if:
(a) an application or order is made to or by a court or a resolution is passed for the winding up of the Buyer or notice of intention to propose such a resolution is given; or
(b) a controller (as defined in section 9 of the Corporations Law) or an administrator under Par t 5.3A of the Corporation Law is appointed in respect of the Buyer, or the whole or any part of its undertaking or property.
(2) The provisions of clause 10(1) apply despite any arrangement between the parties under which the Seller grants the Buyer credit.
11. Exclusions of Implied Conditions and warranties
(1) The only conditions and warranties which are binding on the Seller in respect of:
(a) the state, quality or condition of the goods supplied by it to the Buyer, and/or
(b) advice, recommendation(s), information or services supplied by it, its employees, servants or
agents to the Buyer regarding the goods, their use and application:
are those imposed and required to be binding by statute (including the Trade Practices Act 1974).
(2) To the extent permitted by statute the liability, if any, of the Seller arising from the breach of the conditions or warranties referred to in clause 11(1) are, at the Seller's option, limited to and
completely discharged:
(a) in the case of the goods, by either:
(i) the supply by the Seller of equivalent goods; or
(ii) the replacement by the Seller of the goods supplied to the Buyer; and
(b) in the case of advice, recommendation, information or services by supplying the advice,
recommendation(s), information or services again.
(3) Except as provided in this clause 11 all conditions and warranties whether express or applied by law in respect of the state, quality or condition of the goods which may apart from this clause be binding on the Seller are excluded.
(4) The Buyer acknowledges that the Buyer does not rely and it is unreasonable for the Buyer to rely on the skill or judgment of the Seller as to whether the goods supplied are reasonably fit for any purpose for which they are being acquired, and that the sale is not a sale of goods by description or sample.
(5) Except to the extent provided in this clause 11 the Seller has no liability (including liability in
negligence) to any person for:
(a) any loss or damage consequential or otherwise suffered or incurred by that person in relation to the goods and/or advice, recommendation(s), information or service; and
(b) in particular without limiting clause 11(5)(a) any loss or damage consequential or otherwise
suffered or incurred by that person caused by or resulting directly or indirectly from any failure,
defect or deficiency of any kind of or in the goods and/or advice, recommendation(s), information
services.
12. Privacy
Where goods are supplied to the Buyer on credit the Buyer irrevocably authorises the Seller, its employees and agents to make such enquiries as it deems necessary to investigate the credit worthiness of the Buyer including (without limitation) making enquiries from persons nominated as trade referees, the
bankers of the Buyer or any credit providers (Information Sources) and the Buyer authorises the Information Sources to disclose to the Seller all information concerning the Buyer which is within their possession and which is requested by the Seller.
13. Force Majeure
If a party is prevented from or delayed in complying with an obligation (other than to pay money) by an event beyond its reasonable control, performance by it of that obligation is suspended during the time, but only to the extent that compliance is prevented or delayed.
If anything in these terms and conditions is unenforceable, illegal or void than it is severed and the rest of these terms and conditions remain in force.
A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right, and the exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right. A waiver is not effective unless it is in writing and is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
(1) A notice or other communication ("Notice") connected with these terms and conditions has no legal effect unless it is in writing and;
(a) delivered by hand at the addresses of the addressee set out in these terms and conditions or subsequently notified;
(b) sent by post, postage prepaid, to that address; or
(c) sent by facsimile to the facsimile number of the addressee.
(2) A notice is deemed given and received:
(a) if delivered, upon delivery;
(b) if sent by post, on the 2nd Business Day (at the address to which it is posted) after posting; or
(c) if sent by facsimile before 4p.m. on a Business Day at the place of receipt, on the day it is sent
and otherwise on the next Business Day at the place of receipt.
(3) Despite clause 16(3)(c) a facsimile is not deemed given or received unless at the conclusion of the transmission the sender's facsimile machine issues a transmission report which indicates that the relevant number of pages comprised in the Notice have been sent.
(4) For the purpose of this clause 16 "Business Day" means a day that is not a Saturday, Sunday or any other day which is a public holiday or a bank holiday in the place where an act is to be performed or a payment is to be made.
The law of the State or Territory in which the goods are sold govern these terms and conditions. The parties submit to the non-exclusive jurisdiction of the courts of that State or Territory.
14. Severability
15. Waiver
16. Notices
17. Governing Law and Jurisdiction