TERMS
& CONDITIONS
In these Terms
and Conditions, Company means HAGEMEYER BRANDS AUSTRALIA PTY LTD (“HBA”) and
the Purchaser means the Purchaser whose order for the purchase of goods is
accepted by the Company (HBA)
Any quotation
made by the company is not an offer to sell or to provide services and no order
given in pursuance of any quotation shall bind the Company until accepted by it
in writing or by the commencement of the supply or provision of services.
Unless otherwise agreed
in writing all orders are subject to acceptance by the Company within 30 days
of receipt by the Company of the Purchaser's order and these terms and
conditions will be deemed to be incorporated in any agreement between the
Company and the Purchaser. Any terms and conditions contained in the order
offer acceptance or other document of the Purchaser and, subject to the
provisions of the Trade Practices Act, all representations statements terms
conditions and warranties (whether implied by statute or otherwise) not
embodied herein are expressly excluded to the fullest extent permitted by law.
Notwithstanding that HBA
may have agreed to supply Goods on credit to a Purchaser such arrangements
shall, without prejudice to HBA’s other rights be
terminable on the given by HBA to the Purchaser for fourteen (14) days notice
which such notice may be given at HBA’s sole
discretion and at any time.
Credit arrangements
shall be subject to limits set from time to time by Hba,
and the Purchaser acknowledges that HBA may without any notice period reduce
the amount of or terminate any credit account or limit given
to any Purchaser.
HBA shall use reasonable
endeavours to fill orders accepted by it but shall in
no event be liable or responsible to the Purchaser or any of its Purchaser’s
for any failure or inability to supply Goods ordered by the Purchaser.
HBA reserves the right
to withdraw any Goods or any ranges of Goods from sale from time to time
notwithstanding that such Goods may be displayed in lists of Goods available
for purchase.
The prices of Goods shall be EX
warehouse and shall be specified in the Company’s price list current at the
time of invoice by the Company which prices and list may be varied by the
Company at any time without notice.
Unless we state in
writing to the contrary the price does not include GST, Sales tax, or other tax
or duty, or installation.
All references to retail
prices are recommendations only and there is no obligation to comply with the
recommendation.
The Company reserves the
right to charge a freight and handling fee on any
order below a minimum amount to be determined at the companies discretion.
Unless a price is stated
in writing to include GST, the Company may, in addition to the price for a
supply, charge the Purchaser any GST which may be payable in respect of that
supply.
Payment Terms are Net 30
days from the end of the month in which the goods are purchased, to approved Purchasers only. All
other sales are Cash With Order, unless agreed in writing
by the Company.
If any payment is not
made by the Purchaser to HBA on the due date thereof:
a)
the Purchaser
shall, without prejudice to HBA's other rights, pay
HBA a default charge at the rate of two per cent (2%) per month or part thereof
from the due date for payment until the date payment is made;
b)
HBA reserves the
right, and without prejudice to its other rights hereunder and at law, to
cancel orders or to suspend deliveries of other Goods until such payment has
been made; and
c)
all moneys owing
to HBA including all monies owing to HBA for Goods sold shall become
immediately due and payable and the Purchaser shall indemnify HBA against all
costs (including Solicitor and own client costs, commercial agents,
commissions, freight, surcharges, fees, insurances, accounting costs, loss of
profit and all interest) incurred by HBA as a result of such default and the
action taken by HBA in respect of the same.
The Company may deliver the goods by
installments or partial shipments and the Purchaser will accept each delivery.
Requirements of shall not be a condition or of the essence of the contract. The
Company shall not be under any liability for direct or consequential loss or
damage to the Purchaser arising from delay or postponement of delivery.
The Company shall have the sole and
absolute discretion as to the choice of carrier and method of carriage of the
goods. Should the purchaser nominate their own HBA reserves the right to make
deliveries of orders of the goods by installments and the Purchaser shall pay
for each installment. A delay in the delivery of an installment shall not
relieve the Purchaser of its obligations to accept remaining deliveries.
In the event that the Purchaser
alleges that any of the Goods have not been delivered as ordered it shall give
written notification of such alleged non-delivery to Hba
at its address specified in clause 10 hereof:
a)
Within seven (7) days of the
date of invoice relating to those Goods;
b)
With a full description in
writing of the alleged non-delivery; and
c)
At the cost thereof of the
Purchaser.
Goods supplied by the Company
to the Purchaser shall have the benefit of any Warranty given by the
Manufacturer, however, subject to the Trade Practices Act,
the Company shall not be liable for any damage direct, or consequential arising
out of any defects. All other Conditions hereby expressly negated so far as
they lawfully can be.
The Purchaser shall be responsible for inspecting the
goods immediately upon delivery to ensure that the goods are those ordered by
the Purchaser. The Purchaser's responsibility shall not in any way be
diminished or extinguished in the case of Goods which are
delivered to a third party at
the direction of the Purchaser.
All
claims must be submitted in writing within 7 days of receipt of invoice.
Goods
cannot be returned for credit except with prior issuance by the Company of its
Goods Return Authorisation Number.
Goods will not be accepted by warehouse unless
the-Goods Return Authorisation is clearly marked on
documents accompanying returned goods.
All goods returned should be in original packaging and
include all, accessories manuals and instructions. Where any part of a product
is not returned, HBA reserves the right to reduce credit by the price for said
accessories, manuals and instructions.
Returned goods will be subject to count & inspection
before credit is passed.
Where goods are returned for reasons other than
faulty, damaged or incorrectly delivered goods, the Company reserves the right
to apply a re-stocking fee of 15% of the sale price of the returned goods.
Requests for
return relating to orders containing short dated film (less than 4 months
dating) must be received in writing within 48 hours of receipt, otherwise all
rights will be deemed to have been waived.
The Purchaser acknowledges and warrants to HBA that
the Purchaser is not insolvent and being a natural person has not committed an
act of
bankruptcy or made an arrangement with his creditors or being a
company knows of no circumstances which would
entitle any debenture holder or
secured creditor, or any other party, to
appoint a receiver, to petition for winding up of the Purchaser or apply for
the appointment of a manager or
administrator or
exercise any other rights over or against the Purchaser's assets. The Purchaser will immediately notify HBA if it
becomes aware of
any such circumstances. The
Purchaser acknowledges that these Terms and Conditions constitute an agreement
to supply Goods to the Purchaser upon the Terms and Conditions herein set out
and are not an unconditional sale of Goods to the Purchaser or until the
Purchaser sells the goods to a third party or until the Goods are incorporated
into end products and are not severable therefrom.
The Purchaser acknowledges and agrees
that no title to the Goods shall pass to the Purchaser by reason of the
delivery of the Goods or the acceptance by HBA of the Purchaser's request to
supply the Goods, although risk shall pass to the Purchaser on the delivery of
the Goods. It is a condition of these Terms and Conditions that HBA shall
remain the sole and absolute owner of the goods until such time as the agreed
price of the Goods the subject of this supply contract, and all other Goods
supplied by HBA to the Purchaser and all debts owing by the Purchaser to HBA shall
have been paid in full to HBA by the Purchaser. Until such time as payment in
full has been made for the Goods and all debts, the Purchaser shall be the bailee of all of the Goods for HBA and shall store them
upon its premises separately from its own Goods or those of any other person in
a manner which makes them readily identifiable as the Goods of HBA.
The Purchaser's right to possession of the Goods in
which HBA retains title shall cease at whichever is the earliest of the
following dates:
a) upon the expiration of time given by HBA for payment
in full of the Goods;
b) if the Purchaser being a natural person commits an act
of bankruptcy or compounds or makes an arrangement with his creditors, or any
of them, or if any execution or distress is levied upon the Goods of the
Purchaser,
c) if the Purchaser being a company is wound up, either
compulsory or voluntary, or a receiver and manager appointed over the whole or
a material part of its assets, or an administrator is appointed or the
Purchaser reaches any composition or arrangement with its creditors.
Upon the cessation of the Purchaser's right to possession of the Goods
in which HBA retains title, HBA or its agents may for the purpose of recovery
of the Goods enter upon any premises where the goods are stored or where they
are reasonably thought to be stored and may repossess the same and the
Purchaser shall assist and indemnify HBA in relation to such recovery.
At any time prior to payment in full for all Goods
supplied if the Purchaser sells on his or its own account, the Purchaser shall
sell as agent and bailee of HBA in law and in equity
and shall hold the proceeds thereof in trust for HBA and shall not mingle the
proceeds with other monies and shall not pay the cheque
or cash therefore into an overdrawn bank account.
In the case where a receiver, liquidator, manager or
administrator is appointed to the Purchaser and at the time thereof the
Purchaser shall not have received the proceeds of sale, the Purchaser or the receiver,
liquidator, manager or administrator as agent for the Purchaser shall at the
election of HBA assign to HBA within seven (7) days all rights against the
person obliged to pay the proceeds of sale.
The Company shall not be liable for any delay or failure to
perform its obligations if such failure was caused by any event for which the
Company could not reasonably have exercised control.
ii.
Credit limits on Purchaser’s
accounts;
iii.
The amount of any payments
which are overdue for at least 60 days;
iv.
Where an overdue payment has
been previously reported, advice that the payment is no longer overdue;
v.
Cheques or credit card payments which have been dishonoured;
vi.
Information that in the
opinion of HBA, Purchaser has committed a serious credit infringement; and
vii.
Information that HBA has
ceased to supply the Products and services to Purchaser.
d) Purchaser agrees that HBA may
obtain information about Purchaserfrom any business
which provides information about the commercial credit-worthiness of persons
for the purposes of assessing Purchaser’s application to purchase the Products
on credit and collecting any overdue amounts.
e) HBA may refuse to supply the
Products tp Purchaser on credit on the basis of Hba’s credit assessment of Purchaser.
a)
Purchaser agrees to Hba
collecting, using and disclosing information about Purchaser of the kind
referred to in clause 16(c) for various purposes, including to:
i.
assess credit worthiness as outlined in clause 16;
ii.
supply the products and services to Purchaser and the
management of Purchaser’s account;
iii.
communicate with purchaser about the products and
services which HBA or its partners or affiliates may provide to Purchaser;
iv.
implement these Terms and any Sales Contract; and
v.
comply with relevant laws
b) HBA, at the written request of Purchaser,
will:
i.
provide Purchaser with access to any personal
information relating to Purchaser held by HBA;
ii.
correct or amend any personal information relating to
Purchaser held by HBA which is
inaccurate or out of date; and
iii.
HBA will handle Purchaser’s personal information in
accordance with relevant laws.
14.
INTELLECTUAL PROPERTY
a) Purchaser acknowledges that:
i.
All trademarks, copyright and other Intellectual
property rights (“Intellectual Property”) embodied in or in connection with the
Products and any related documentation, parts or software are the sole property
of HBA or its suppliers; and
ii.
All Intellectual Property of HBA or its suppliers may
only be used by Purchaser with the consent of HBA or its suppliers, during the
continuance of any relevant Sales Contract; and such consent-extends only to
use essential for the purposes stated in it. Any licensing of Intellectual
Property rights in any software products supplied to Purchaser will immediately
cease upon expiry or
termination of the relevant license agreement that governs their
use.
b)
Purchaser-must not, during or after the expiry or
termination of any relevant Sales Contract, without the prior consent of HBA or
its suppliers in connection with the products.
c)
Purchaser will idemnify HBA
against all liabilities, damages, costs and expenses which HBA may suffer or
incur as a result of work done in accordance with Purchaser’s specification or
as a result of the combination or use of the products with other equipment,
parts or software not supplied by HBA and which results in the Infrigement of any intellectual Property of any person.
a) Purchaser acknowledges that HBA has
disclosed and may from time to time disclose to Purchaser certain confidential
information and documentation of HBA relating to the Products, their marketing,
use, maintenance and software, including technical specification (“Confidential
Information”).
b) Subject to clause 12(e), Purchaser must:
i.
Only use the Confidential information solely for the
purposes contemplated under any relevant Sales Contract; and
ii.
Not during the continuation of such Sales Contract or
thereafter, disclose (whether directly or indirectly) to any third party the
Confidential Information, other than is required to any out such purposes.
c) If disclosure of Confidential Information
to third parties is necessary. Purchaser will obtain from such third parties
binding agreements to maintain in confidence the Confidential Information
disclosed at least to the same extent as Purchaser is bound to protect NBA’s
confidential Information under this clause 19.
d) Upon the expiry or termination of any
relevant Sales Contract, Purchaser must cease to use and must return or destroy
(as HBA may instruct) HBA’s Confidential Information
in its possession or control.
e) The provisions of this clause 12 do not
extend to any information which is:
i.
At the time of disclosure, rightfully known to or in
the possession or control of Purchaser and which is not subject to an
obligation or confidentiality;
ii.
Public Knowledge (otherwise than as result of a
branch of this clause 19 or any other obligation or confidentiality);
iii.
Approved to be disclosed by HBA; or
iv.
Required to be disclosed by a government authority or
by relevant laws.
a) HBA may amend these Terms at any time by
giving Purchaser notice by mail, e-mail or by posting a notice on HBA's public website. By continuing to place orders for
Products, Purchaser will be deemed to have accepted the revised Terms.
b) Any provision of these Terms which is
invalid or unenforceable will be read down to the extent necessary, and the
remaining provisions will continue unaffected,
c) Purchaser may not assign or attempt to
assign any of its rights and obligations under these Term.
d) These
terms are governed by the laws of the State of
Where the Company agrees to store or hold on
consignment goods on behalf of the Purchaser, all risk remains with the
Purchaser. Any goods so
held are to be insured for full purchase value by the
Purchaser.
Where in these Terms & Conditions reference is
made to the address of Hagemeyer Brands Australia Pty LTD the registered office
is:
Hagemeyer
Brands Australia Pty Ltd
KINGSGROVE
NSW 2208
The Terms
and Conditions shall be governed and construed in accordance with the laws of
the Commonwealth of Australia and in particular the State of
The parties
agree that the Courts of New South Wales shall have jurisdiction to hear and
determine any dispute arising hereunder.
This agreement shall not be assigned by the Purchaser
whether voluntarily, involuntarily or by operation of Law without the prior
consent of the Company. No such assignment by the Purchaser howsoever occurring
shall relieve the assignor of its obligations hereunder.
In the event that any or part of these terms, conditions or
provisions shall be determined invalid, unlawful or unenforceable to any extent
such terms, conditions or provisions shall be severed from the remaining terms
and conditions which shall continue to be valid and enforceable to the fullest
extent permitted by law.