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All Orders given to Australian Graphic Supplies Pty Ltd
(hereafter AGS), ABN No 81 082 517 691are subject to the following
Terms and Conditions.
1. Definitions and Interpretations
1.1 In these Terms and Conditions:
"Delivery Address" means the delivery address of the Customer
stated in an Order; "Contract" means the contract resulting from
the acceptance by AGS of an Order in accordance with clause
2.3;
"Credit Application Form" means AGS credit application form by
which a Customer can apply for credit account with AGS in respect
of the sale of Goods;
"Customer" means any person who enters into a Contract with AGS
for the sale and purchase of Goods;
"Delivery Time" means the time of delivery of the Goods either
to the Delivery Address of the Customer or to the carrier of the
Customer;
"GST" means any amount paid or payable under any GST law as that
expression is defined in section 195-1 of theA New Tax System
(Goods and Services Tax) Act 1999(Cth);
"Loss" means any damage, loss, liability, expense or cost
whether direct or indirect, consequential or incidental;
"Order" means an order placed with AGS for the sale and delivery
of Goods;
"Order Confirmation" means a written confirmation of the Order
by AGS that may be in the form of an invoice provided to the
Customer by facsimile transmission or email or delivered to the
Customer upon delivery of the Goods;
"Price" means the price for the Goods specified in the Order
Confirmation, or the price set out in any specific quotations by
AGS for the supply of Goods at a particular price, which quotation
shall be open for acceptance within the period stated in a
quotation or if no period is stated, within 30 days after the date
of a quotation;
"Goods" means the goods supplied or to be supplied by AGS to the
Customer from time to time pursuant to the Contract;
"Terms and Conditions" means these terms and conditions as
amended from time to time by AGS
1.2 In these Terms and Conditions (including defined
terms), unless the context otherwise requires:
(a)The
singular includes the plural and vice versa and each gender
includes each other gender;
(b)Headings
are included for convenience only and do not affect the
interpretation of these Terms and Conditions.
2. Formation of Contract of Sale of Goods
2.1 These Terms and Conditions supersede all previous terms
and conditions imposed by AGS and may only be varied in writing by
AGS.
2.2 Each Order will constitute an offer by the Customer to
acquire Goods from AGS upon and subject to the Terms and Conditions
and to the exclusion of all other terms and conditions and
notwithstanding any qualifications of the Terms and Conditions
(including any terms and conditions contained in any purchase Order
or other document of the Customer) unless expressly agreed by AGS
in writing. Any price lists or quotations given by AGS to a
Customer are an invitation to the Customer to place an Order
only.
2.3 A contract will only be made between AGS and the
Customer for the sale and purchase of Goods if and upon the
acceptance of the Order by AGS by the provision to the Customer of
an Order Confirmation.
2.4 An Order may only be made by the Customer to AGS;
(a)In
writing, by facsimile transmission or by electronic data
interchange;
(b)By
telephone, if within 3 business days of the placement of the Order,
it is confirmed by a means outlined in (a).
2.5 The Contract resulting from the provision of the Order
Confirmation cannot be cancelled by the Customer without AGS's
written consent and AGS may at its discretion impose a reasonable
cancellation charge.
3. Payment Terms
3.1The Customer agrees to pay to AGS the Price in full upon the
delivery of the Goods, unless the Customer has completed and
returned a Credit Application Form and AGS has agreed to extend
credit to the Customer, in which case the Customer agrees to pay
the Price in full on or before the 20th day of the month
following the date of invoice or as otherwise agreed with
AGS.
(a)Payment for the Customer's first Order shall be made in advance
before shipment of Goods.
3.2 If the Price is not paid in full as and when due in
accordance with clause 3.1, then AGS shall have the right to charge
interest at a rate of 1.25% per month from the due date to the date
that the account is paid in full and should the account be referred
to a collection agency the Applicant shall pay a 15% collection fee
plus legal costs on a solicitor/own client basis.
3.3 If AGS agrees to extend credit to the Customer, the Customer
agrees to the terms stated in the Credit Application Form as terms
and conditions of the Contract. Notwithstanding any credit terms
given to the Customer, AGS may decline to sell Goods on credit to
the Customer at any time without notice to the Customer.
3.4 The Price is GST and freight /delivery charge exclusive
unless stated otherwise. The Customer must pay to AGS any GST
which AGS is liable to pay in respect of supplies made by AGS under
these Terms and Conditions, at the same time and in the same manner
as first payment is made for the supply to which the payment
relates.
3.5 All financial institutions duty, stamp duty, Government
charges, or direct costs of any kind associated with the operation
of the customers account will be charged to the customer.
Furthermore, the customer will be charged a fee of $100 for each
dishonored cheque.
3.6 Prices, fees and charges are subject to change without
notice.
Title and Risk
3.7 The Customer acknowledges and agrees that no title to the
Goods shall pass to the Customer until the Price has been paid to
AGS in full.
3.8 Risk of Loss or damage to the Goods will pass to the
Customer at the time of dispatch from AGS's warehouse. AGS shall
not be responsible for any loss or damage of Goods in transit.
Insurance for Goods in transit to the Customer will not be arranged
by AGS. The Customer shall be responsible for the insurance of
Goods in transit, which insurance shall take account of these
conditions.
3.9 Until the Price has been paid in full (a) legal ownership of
Goods shall remain with AGS (b) AGS may enter the Customer's
premises (or any premises where the Goods are located) without
notice and without liability for trespass or any resulting damage
and may retake possession of Goods (c) AGS may keep or resell any
repossessed Goods (d) if the Customer resells Goods without first
having paid AGS for them, the Customer shall hold that part of the
proceeds of the sale which represents the invoiced price of Goods
in a separate identifiable account as the beneficial property of
AGS and shall pay the amount to AGS on request (e)
notwithstanding anything contained in sub clauses 3.9 (a)-(d), AGS
shall be entitled to maintain its legal rights against the Customer
for the Price of the Goods.
The Customer acknowledges and agrees that AGS
may apply to register a security interest in the Goods at any time
before or after delivery of the Goods. The Customer waives its
right under s 157 of the Personal Property Securities Act 2010
PPSA) to receive notice of any verification of the registration. If
the Customer defaults in the performance of any obligation owed to
the AGS under these Terms and Conditions or any other agreement
with AGS to supply Goods to the Customer, AGS may enforce its
security interest in any Goods by exercising all or any of its
rights under these terms or the PPSA. To the maximum extent
permitted by law, the Customer and AGS agree that the following
provisions of the PPSA do not apply to the enforcement by AGS of
its security interest in the Goods: sections 95,125, 130,135,142
and 143.
3.11 Security and Charge
Despite anything to the contrary contained herein of any other
rights which the AGS may have howsoever:
(a) where the Customer and/or the
Guarantor (if any) is the owner of land, realty or any other asset
capable of being charged, both the Customer and/or the Guarantor
agree to mortgage and/or charge all of their joint and/or several
interest in the said land, realty or any other asset to AGS or
AGS's nominee to secure all amounts and other monetary obligations
payable under these terms and conditions. The Customer and/or the
Guarantor acknowledge and agree that AGS (or AGS's nominee) shall
be entitled to lodge where appropriate a caveat, which caveat shall
be withdrawn once all payments and other monetary obligations
payable hereunder have been meet.
(b) Should AGS elect to
proceed in any manner in accordance with this clause and/or its
sub-clause, the Customer and/or Guarantor shall indemnify AGS from
and against all AGS's costs and disbursements including legal costs
on a solicitor and own client basis. The Customer and/or the
Guarantor (if any) agree to irrevocably nominate constitute and
appoint AGS or the AGS's nominee as the Customer's and/or
Guarantor's true and lawful attorney to perform all necessary acts
to give effect to the provisions of this clause
4. Delivery
4.1 The Delivery Time shall be a time or during a period agreed
by AGS and the Customer.
4.2 AGS reserves the right to withdraw an Order Confirmation at
any time before the Delivery Time and will not be liable for any
loss whatsoever arising from its failure to deliver any or all of
the Goods.
4.3 Any term of the Contract relating to the quantity of Goods
is not the essence of the Contract. AGS reserves the right to make
partial deliveries against an Order and to invoice each partial
delivery separately and the Customer cannot reject Goods on
the basis of partial delivery.
4.4 Where Goods remain in the possession of AGS after the
Delivery Time (including where the Customer fails for whatever
reason to take delivery of the Goods), AGS is entitled to charge
the Customer for all Loss occasioned by the Customer not accepting
delivery together with any costs and Loss in respect of the
carriage, care and custody of the Goods.
4.5 Unless otherwise agreed by AGS, all Goods will be delivered
to the Delivery Address.
4.6 The Customer must ensure that it or its employees or agents
are in attendance at the Delivery Address at the agreed time or
agreed period for delivery to accept delivery of the Goods and to
acknowledge receipt upon the consignment note or invoice
accompanying the Goods.
4.7 AGS may arrange for the storage and carriage of Goods by
carriers, contractors or sub-contractors. Notwithstanding any
specific instructions given by the Customer as to the mode of
carriage of Goods, in the exercise of its absolute discretion AGS
may have any Goods carried or forwarded by any method which it
deems fit.
4.8 Unless otherwise agreed in writing by AGS from time to time,
the cost of freight of Goods from the AGS warehouse shall be paid
by the Customer.
4.9 Unless otherwise specified in a quotation, Goods shall
be packed in AGS standard packing. The cost of any special packing
and packing materials required by the Customer shall be at the
Customer's expense.
5. Inspection, Acceptance of Goods and Customer's
obligations
5.1 The Customer must inspect the Goods within 2 business
days of the Delivery Time and if no inspection is so made, is
deemed to have accepted the Goods.
5.2The Customer has no claim for shortages, defects or any Loss
in respect of Goods apparent on inspection unless:
(a)A complaint is made to AGS within 3 business days of the
Delivery Time specifying the shortage or defect; and
(b)AGS is, after receipt of the complaint, permitted to inspect the
Goods and investigate the complaint.
5.3 If a complaint is not made to AGS in accordance with
clause 5.2, the Goods delivered will be deemed to be in accordance
with the Contract, and AGS will not be held liable for any future
Losses regarding the use or application of the Goods, and the
Customer is bound to pay for them accordingly.
5.4 AGS shall not be under any obligation to accept Goods
returned by the Customer. AGS will only accept the return of Goods
from the Customer where:
(a)The
Customer has complied with clause 5.2 and AGS is satisfied as to
the claim by the Customer; and
(b)The
Goods are returned to AGS in the same condition as when first
delivered to the Customer.
5.5 Where incorrect Goods are Ordered, an incorrect item number
for Goods is used, an incorrect unit of issue or pack size is
Ordered, an Order exceeds the Customer's requirements, an incorrect
account number is used, or an Order is duplicated, the Customer may
after receiving written authority from AGS, return the Goods
to AGS subject to the Goods being returned in the same condition as
when first delivered to the Customer and subject to the Customer
bearing the freight costs of the delivery and return of the
Goods.
5.6 Where Goods are returned to AGS in accordance with the
above provisions AGS must issue a credit note in respect of any
amounts paid by the Customer in respect of those Goods.
6. Liability
6.1 Legislation such as theCompetition and Consumer Act
2010(Cth) may imply into these Terms and Conditions warranties or
conditions or impose obligations which cannot be excluded,
restricted or modified and these Terms and Conditions are read
subject to such statutory provisions.
6.2 All other conditions, warranties, representations,
liabilities, and obligations, whether implied or imposed by
statute, including any conditions or warranties as to
merchantability, fitness for purpose or correspondence with
description are excluded to the extent permitted by law.
6.3 In the event that AGS breaches its obligations referred
to in clause 6.1, to the extent allowed by law, its liability is
limited to any one or more of the following, at its election:-
(a)The
replacement of the Goods or the supply of equivalent goods;
(b)The
repair of the Goods;
(c)The payment of the cost of replacing the goods or acquiring
equivalent goods; or
(d)The payment of the cost of having the goods repaired.
6.4 The total liability of AGS under these Terms and
Conditions is, to the extent permitted by law, expressed in this
clause 6 and AGS will under no circumstances be liable to the
Customer for any Loss incurred by the Customer or any other party
resulting directly or indirectly out of the supply by AGS to the
Customer or out of any breach of AGS under these Terms and
Conditions or out of the negligence of AGS.
6.5 Nothing in these Terms and Conditions shall exclude or
modify any conditional warranty implied by law where to do so would
render these Terms and Conditions void.
6.6 Our goods come with guarantees that cannot be excluded under
the Australian Consumer Law. You are entitled to a replacement or
refund for a major failure and for compensation for any other
reasonably foreseeable loss or damage. You are also entitled to
have the goods repaired or replaced if the goods fail to be of
acceptable quality and the failure does not amount to a major
failure.
7.General
7.1 These Terms and Conditions take effect, are governed by
and will be construed in accordance with the laws of the State of
Queensland, Australia.
7.2 These Terms and Conditions are subject to change
without notice.
7.3 The parties agree that any action arising out of, or
relating to these terms may only be brought by a court of competent
jurisdiction in the State of Queensland, Australia.
7.4 If any of these terms and conditions are found by a
court of competent jurisdiction to be invalid or unenforceable, it
will be struck out and the remaining terms and conditions will
remain in force.
7.5 If we do not act in relation to a breach by you of
these terms and conditions, this does not waive AGS's right to act
with respect to subsequent or similar breaches.
7.6 You may not assign or transfer any rights or benefits
you may receive under these terms and conditions to any other
person or entity without the prior written consent of AGS.
7.7 In reselling, maintaining or installing Goods, the
Customer is not AGS's agent or the agent of the manufacturer of
Goods
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