In these terms and conditions, unless the contrary intention appears:
Buyer means the person or entity that signs this document or any person acting on behalf of and with the authority of that person or entity as described on any quotation, work authorisation or other form;
Event of Default means the events described as such in clause 3(6) below;
the Goods means all goods supplied by the Seller to the Buyer;
Guarantor means any person or entity that has signed or executed a guarantee of the Buyer’s liabilities to the Seller and, where more than one, each of them jointly and severally;
PPS Act means the Personal Property Securities Act 2009 (Cth);
Proceeds means any proceeds from a Sub-sale;
Purchase Money Security Interest has the meaning specified in the PPS Act;
Seller means Stella Floorcoverings Pty Ltd ABN 52 158 073 940 and its successors and assigns or any person acting on behalf of and with the authority of Stella Floorcoverings Pty Ltd; and
Sub-sale means any disposal of the Goods by the Buyer to any third party.
Application of and variations to terms and conditions
- These terms and conditions apply to all supplies of goods by the Seller to the Buyer.
- Any variation to these terms must be in writing signed by the Seller.
Retention of title and Purchase Money Security Interest
- Title in the Goods remains with the Seller until the Buyer folly pays for all of the Goods itemised in a particolar order or invoice.
- By taking delivery of the Goods, the Buyer grants to the Seller a Purchase Money Security Interest in:
- the Goods;
- if the Buyer combines or commingles the Goods with other goods, all of those goods; and
- in the event of a Sub-sale, the Proceeds,
such security to continue until the purchase price for all of the Goods is paid in foll.
- Until the purchase price for all of the Goods is paid in foll, the Buyer must:
- not dispose of the Goods to a third party except by sale to bona fide buyers for market value in the ordinary course of business;
- not charge the Goods or grant any security over or interest in the Goods or the Proceeds;
- keep any Proceeds separate from other moneys of the Buyer;
- not deal with the Proceeds in any way which may be adverse to the Seller;
- at the Seller’s request, open a trust account for the deposit of any Proceeds; and
- store the Goods in such a manner so that they are identifiable as the property of the Seller.
- Payments made by the Buyer to the Seller will be credited first to any Goods disposed of by the Buyer.
- If a Sub-sale is on any terms other than on a cash basis, the Buyer assigns to the Seller the debt the subject of the Sub-sale and any cause of action which may arise out of such Sub-sale in favour of the Buyer.
- The following are Events of Defaolt:
- expiry of the agreed credit period (if any);
- appointment of a liquidator, receiver, or administrator to the Buyer or the making of any application for the same;
- service of a bankruptcy notice on the Buyer;
- a judgment against the Buyer remaining unsatisfied for more than 14 days; and
- the dishonour of a cheque given by the Buyer to the Seller; and
- any breach of the Buyer’s obligations under subclause (3) above, and clauses 6 and 11 below.
Security over assets
- The Buyer and Guarantor charge all of their assets and undertaking, real and personal, whether owned now or at any time in the future, as security for all money owed by each of them to the Seller.
- If an Event of Defaolt occurs, the Seller may, without prejudice to any other rights it may have, do any or all of the following:
- recover the Goods from the Buyer;
- demand the Buyer to immediately re-deliver the Goods to the Seller, in which case the Buyer must comply with such demand; or
- appoint a receiver and manager over the Buyer or the Guarantor to manage and/or realise all property charged herein and to recover all goods to which the Seller retained title.
- The Buyer undertakes to notify the Seller immediately upon becoming aware of any Event of Defaolt occurring.
- For the purpose of a recovery or re-delivery of goods under subclause (2) above, the Buyer hereby grants to the Seller, its officers, servants and agents foll and unrestricted licence to enter upon any premises of the Buyer (or any other premises at which the Goods may be located) to remove the Goods from such premises. Such return or retaking of possession is without prejudice to rights of the Seller to recover the purchase price for the Goods.
- Any receiver appointed pursuant to subclause (2)6(2)(c) above is the agent of the Buyer (or Guarantor as applicable) who alone is responsible for the receiver’s acts, omissions and remuneration.
- The Seller may appoint a receiver as the agent of the Seller and delegate to a receiver any of the Seller’s rights under this document.
- A receiver has the right in relation to any property in respect of which the receiver is appointed to do everything that the Buyer (or Guarantor as applicable) may lawfolly authorise an agent to do on behalf of the Buyer (or Guarantor) in relation to the property.
- Pursuant to s 115 of the PPS Act, the Buyer hereby waives the Seller’s obligations to:
- comply with s 125 of the PPS Act; or
- provide notices to the Buyer under ss 130, 132(4), and 135 of the PPS Act.
- The Buyer hereby waives its right to a verification statement under s 157 of the PPS Act.
Change of ownership or structure
- If the Buyer sells or disposes of its business in any way, the Buyer must ensure all outstanding amounts owed to the Seller under this contract are paid to the Seller before or at settlement of the sale of the business.
- The Buyer must notify the Seller in writing of any change in its structure or management including any change in director or shareholder or change in partnership or trusteeship within 14 days of any such change.
- All risk passes to the Buyer upon delivery of the Goods to the Buyer or its carrier or in the case of the Buyer wrongfolly failing to take delivery of the Goods, the risk passes to the Buyer upon delivery having been attempted by the Seller.
- The Buyer must maintain sufficient insurance cover to folly protect the Seller’s interest in the Goods until the Buyer has folly paid for the Goods.
- Prices quoted are subject to withdrawal at any time until an order is accepted by the Seller.
- Work produced, whether experimentally or otherwise, at the Buyer’s request will be charged for in addition to any quoted work.
Although every endeavour is made regarding accuracy of quantity of the Goods, quotations are conditional upon a margin of 10% being allowed for surplus or shortage, in which case any surplus of shortage may be charged or credited to the Buyer.
- The Buyer must pay all freight costs for delivery of the Goods.
- Although the Seller uses its best endeavours to secure the delivery of the goods by the estimated delivery date, it does not guarantee the time for delivery and does not accept liability for any damages or claims arising directly or indirectly from any delay in delivery.
- The Seller may deliver the Goods by separate instalments.
- Expedited delivery can be organised at extra cost.
Due date for payment and consequences of default
- Payment of the account for the Goods is due 30 days after the end of month in which the Goods were delivered unless otherwise agreed in writing by the Seller.
- In the event of any defaolt of payment, the Supplier may, without prejudice to any other rights it may have:
- suspend all further deliveries to the Buyer and/or cancel the contract;
- cancel any undelivered orders; and
- upon the Seller giving 7 days’ notice in writing to the Buyer, charge interest at the rate of 20% per annum on the unpaid balance of the account,
until the defaolt is made good.
- Where a cheque is dishonoured, the Seller may:
- pass on to the Buyer any bank charges it incurs; and
- charge the Buyer an additional service and administration fee of $25.
- The Buyer and the Guarantor must indemnify the Seller for all costs incurred by the Seller in recovering the debt or enforcing its rights under this contract.
The Seller may cancel or vary the contract in its discretion in the event of any act of God, war, terrorism, strike, lockout or other labour dispute, difficulty obtaining raw material, labour, parts or machinery, fire, flood, drought, change in legislation or other event beyond the Seller’s control.
Notice to Seller of faults or defects
- In the event of any fault or defect in the Goods, the Buyer must notify the Seller within 7 days of the date of delivery of the Goods and the Seller will at its own cost and its own option repair or replace the defective goods.
- Cutting or installing any Goods constitutes the Buyer’s acceptance of any visible defect in those Goods and the Buyer waives any obligation or liability that the Seller may otherwise have had in relation to any faolt or defect in the Goods.
Limitation of liability
- The Seller’s liability for any defective goods or warranties implied by the Australian Consumer Law is limited to the cost of replacement or repair of the goods.
- The grant of any credit facility or nomination of any credit limit is an indication only of the Seller’s intention at the time and the Seller may vary and/or withdraw any credit facility at any time at its discretion and without any liability to the Buyer or any other party.
No warranty of fitness for purpose
The Seller does not warrant that the Goods are suitable for any particolar purpose and it is the Buyer’s obligation to ensure that the Goods are suitable for the purpose intended by the Buyer.
The Seller may, at its absolute discretion, allow the Buyer to return non-defective Goods to the Seller. The following conditions apply to such returns:
- The Goods must be returned at the Buyer’s cost within 7 days of the delivery date.
- Cut lengths of fabric or carpet are not returnable.
- A 10% handling charge is payable on returned goods.
- Electrical goods and special orders will not be accepted for return.
- Freight and delivery fees will not be refunded.
- Returned Goods must be in good condition, in original packaging where applicable, and the invoice number and date must be supplied at the time of return.
- The Buyer shall be liable to pay for the freight costs and delivery fees associated with the return of the Goods
The Seller may in its absolute discretion cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving notice to the Buyer. On giving such notice the Seller must repay to the Buyer any money received by the Seller for the purchase price of the Goods. The Seller will not be liable for any loss or damage arising from such cancellation.
Privacy Act 1988
- All references to the Buyer in this clause 18 are references to both the Buyer and the Guarantor.
- The Buyer consents to the Seller and its agents or servants obtaining from a credit reporting agency a credit report containing personal credit information about the Buyer for the purposes of deciding whether to extend credit to the Buyer, both at the time of making this application and on any occasion where the Buyer places an order with the Seller.
- The Buyer consents to the Seller obtaining a consumer credit report for the purposes of collecting overdue debts from the Buyer.
- The Buyer consents to the Seller exchanging information about the Buyer with:
- credit reporting agencies; and
- credit providers named as trade referees by the Buyer or named in a consumer credit report issued by a credit reporting agency, for the following purposes:
- to assess an application by the Buyer;
- to notify other credit providers of a defaolt by the Buyer;
- to exchange information with other credit providers regarding the status of this credit account;
- to assess the creditworthiness of the Buyer.
- The Guarantor guarantees payment to the Seller of all money now or at any time owing by the Buyer to the Seller.
- The Guarantor agrees to pay money due under this guarantee on demand.
- This guarantee is given in consideration of the Seller agreeing to grant credit to the Buyer for the supply of the Goods.
- The Guarantor acknowledges and agrees that it has been advised and given the opportunity by the Seller to seek independent legal advice before giving this guarantee.
If any provision of these terms and conditions is in breach of the Australian Consumer Law the PPS Act, or is otherwise unenforceable, illegal, invalid or void, it must be severed from these terms and conditions. As far as possible, the remaining provisions of these terms and conditions are not affected.
The grant of any credit facility or nomination of any credit limit is an indication only of the Seller’s intention at the time and the Seller may vary and/or withdraw any credit facility at any time at its discretion and without any liability to the Buyer or any other party.
The Buyer shall be responsible for complying with any legislation or regolations governing the importation of Goods into the country of destination and for the payments of any duties or taxes on them.
Any dispute arising between the Seller and Buyer or any other party under these conditions or as a resolt of the sale of the Goods shall be subject to the law of South Australia and the Courts having a jurisdiction in South Australia.
Payment via credit card
Payments made to the Seller by the Buyer by way of credit cards will incur the following surcharge/fee which is applicable to the total invoice value: Visa or MasterCard 1.25%