1.1 “Seller” shall mean and include Thermoshield Australia Pty Ltd. ABN 37 079 666 774, its employees and agents.
1.2 “Buyer” shall mean and include the person named herein and any servant, agent, partner, contractor or employee of that person, and in the case of two or more persons, shall refer to each of them jointly and severally.
1.3 Any notice in writing required to be given hereunder shall be deemed to be duly given if posted to the last known address of the addressee by prepaid post.
2.1 All orders placed by a Buyer will be subject to these Terms and Conditions of Sale unless otherwise expressly agreed to in writing by the Seller.
2.2 The Buyer waives any Terms and Conditions of purchase which are inconsistent with the Terms and Conditions of Sale herewith.
2.3 The Buyer agrees that all contracts made with the Seller shall be deemed to be made in the State of Victoria and the Buyer agrees to submit to the jurisdiction of the appropriate Court in that State.
2.4 Any variation or cancellation of order must be approved in writing by the Seller.
2.5 Any credit limit granted by the Seller to the Buyer may be reduced or withdrawn at any time by the Seller without prior notice.
3.1 All sales are made at the Seller’s ruling at the time of delivery, unless otherwise agreed in writing.
4.1 The Seller shall not be liable for any claim, loss or expense whatsoever or howsoever arising (e.g. damaged or short stock) which is made after the expiration of three days from the date of delivery. A signed delivery note by the Buyer will constitute conclusive evidence that the goods have been delivered to and received by the Buyer in good condition.
4.2 The Seller will not be subject to any liability which exceeds the replacement value of the subject goods. The Seller will not be liable for any contingent, consequential or punitive damages arising in any way whatsoever. The Buyer acknowledges this express limitation of liability and agrees to limit any claim accordingly.
4.3 The Seller shall not be liable for any claim, loss or expense sustained or incurred by any person arising in any way as a result of the unavailability of goods or any delay in delivery of the goods or any part thereof or any failure to deliver the goods or part thereof.
4.4 Any advice, recommendation, information or representation by the Seller as to the quality or performance of the goods or their suitability for a particular purpose or otherwise in relation to the goods is given in good faith but without any liability or responsibility on the part of the Seller. The Buyer acknowledges that it has not relied upon or been induced by any representation by the Seller.
5.1 Unless otherwise specified in writing (e.g. on the Seller’s Purchase Order form) all prices are strictly net and the Buyer must make payment for all goods on a cash on delivery basis. All discounts become null and void if stipulated payment terms are not observed.
5.2 If payment is not made in accordance with the above terms, the Seller shall be entitled to:
5.2.1 require the payment of cash upon delivery of any further goods;
5.2.2 charge default interest at the rate of 1.5% per month calculated on a daily basis on any monies due but unpaid, such interest will be computed from the due day of payment;
5.2.3 cease supply of further goods if payment has not been made within 15 days of the due date;
5.2.4 require that all monies owing by the Buyer, regardless of the due date, be immediately due and payable.
6.1 Property in the goods will remain with the Seller until the price of those goods has been paid in full.
6.2 The risk in the goods will transfer to the Buyer upon delivery to the Buyer or his agent or a carrier nominated by or arranged at the request of the Buyer (whichever is the earlier).
6.3 The Buyer may effect sale of the goods or part thereof in the usual course of business upon the following conditions:
6.3.1 that the Buyer holds all proceeds of sale relating to the Seller’s goods on trust for the Seller;
6.3.2 that the Buyer agrees (if required) to assign to the Seller any rights to any outstanding monies relating to the sale of disposal of the Seller’s goods.
6.4 If the Seller’s written demand for payment is unsatisfied for a period of seven (7) days from the date of the demand, the Seller is hereby irrevocably licensed to enter the premises owned or occupied by the Buyer to recover any goods which are the property of the Seller and which the Seller reasonably believes to be on such premises.
6.5 The Buyer hereby irrevocably nominates and appoints the Seller to be the true and lawful attorney of the Buyer to act at any time after the Buyer may be in breach of these Terms and Conditions of Sales (a sufficient proof whereof shall be a statutory declaration by an officer of the Seller) to execute and sign an assignment of debts to the Seller and for this purpose use the name of the Buyer and generally to do, execute and perform any act, deed, matter or thing relative to giving effect to Clause 6.3 hereby and the Buyer hereby covenants to ratify and confirm all and whatsoever the said attorney shall lawfully do or cause to be done with respect to any such assignment of debts.
7.1 The Buyer shall be responsible for all costs associated with any delivery. If the Seller is requested to arrange for the delivery of goods beyond the premises, the Buyer shall pay all delivery charges stipulated by the Seller. The Seller shall in all cases be entitled to choose the method of transport.
7.2 The Buyer shall provide reasonable and proper access to the location specified for delivery.
7.3 The Buyer authorizes the Seller to subcontract delivery in its absolute discretion.
7.4 The Seller may unilaterally delay or suspend any delivery for any period or cancel any agreement for sale without any liability whatsoever.
8.1 Goods will only be accepted for return if authorized in writing by a representative of the Seller prior to the return and any returned goods will be subject to the payment by the Buyer to the Seller of a handling charge equal to 10% of the Invoiced cost of such goods.
If the Buyer:
9.1 fails to comply with any of these conditions; or
9.2 being an individual commits any act of bankruptcy, or being a corporation passes a resolution for winding up or liquidation; or
9.3 enters into any composition or arrangements with creditors or if a receiver or manager is appointed for any property or assets; or
9.4 becomes liable to be wound up by reason of insolvency or if any petition is presented for its winding up, the Seller may, in addition to exercising any of its rights against the Buyer, suspend any further deliveries and immediately recover possession of any products not paid for in full and sell them.
The party/ies who have appended their signature/s hereto on behalf of the Purchaser hereby bind himself/themselves and surety/ies and co-principal debtor/s in solidum unto and in favour of the Seller in respect of all the obligations of the Purchase in terms hereof and furthermore hereby agree and undertake to be bound by the terms and conditions of this Agreement mutates mutandis. In the event of liquidation of the Purchaser, the signatories hereunder hereby cede any claim of or account against the Purchaser’s estate to the Seller until all amounts (including interest and costs) due by the Purchaser to the Seller have been paid in full.
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