1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In these terms and conditions, unless the context otherwise requires:
- "Australian Consumer Law" means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and the corresponding provisions of State Fair Trading legislation.
- "Buyer" means the Person named in the relevant Sales Invoice or Quotation.
- "Business Day" means a day other than a weekend or public holiday in the place which the goods are delivered.
- "Consumer" means:
- a person acquiring Goods of a kind ordinarily acquired for personal, domestic or household use or consumption; or
- a person acquiring Goods at a price not exceeding $40,000; or
- the Goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads, But excludes a person acquiring the Goods, or holding himself or herself out as acquiring the Goods for the purpose of:
- re-supply; or
- using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or in the course of repairing or treating other goods or fixtures on land.
- "Excluded Loss" means:
- in the case of loss or damage resulting from a breach of contract (including any contractual duty of care) loss of revenue; loss of profit; loss or denial of opportunity; loss of access to markets; loss of goodwill; loss of business reputation; loss arising from late delivery or failure to deliver goods; loss arising from any business interruption; increased overhead costs and any indirect, remote or unforeseeable loss occasioned by that breach, whether or not in the reasonable contemplation of the Buyer and the Seller at the time of the Quotation, Sales Invoice or any delivery of goods as being a probable result of the relevant breach; and
- in the case of loss or damage arising from any tort (including negligence) which does not also constitute a breach of contract - indirect, remote or unforeseeable loss and, in the case of pure economic loss, loss not flowing directly from the commission of the tort.
- "Excluded Loss" means:
- in the case of loss or damage resulting from a breach of contract (including any contractual duty of care) loss of revenue; loss of profit; loss or denial of opportunity; loss of access to markets; loss of goodwill; loss of business reputation; loss arising from late delivery or failure to deliver goods; loss arising from any business interruption; increased overhead costs and any indirect, remote or unforeseeable loss occasioned by that breach, whether or not in the reasonable contemplation of the Buyer and the Seller at the time of the Quotation, Sales Invoice or any delivery of goods as being a probable result of the relevant breach; and
- in the case of loss or damage arising from any tort (including negligence) which does not also constitute a breach of contract - indirect, remote or unforeseeable loss and, in the case of pure economic loss, loss not flowing directly from the commission of the tort.
- "Exclusive Goods" means any goods which are, at the Buyer's request, embellished, embroidered, printed, machined, cut-to-size or specifically ordered for the Buyer.
- "GST Amount" means any Payment (or the relevant part of that Payment) multiplied by the appropriate rate of GST.
- "GST Law" has the meaning given to that term in A New Tax System (Goods and Services) Act 1999, or, if that Act does not exist for any reason, means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.
- "Payment" means any amount payable under or in connection with a Quotation or Sales Invoice including any amount payable by way of indemnity, reimbursement or otherwise (other than a GST Amount) and includes the provision of any non-monetary consideration.
- "Person" includes an individual, the estate of an individual, a body politic, a corporation, an association (incorporated or unincorporated) and a statutory or other authority.
- "PPSA" means Personal Property Securities Act 2009 (Cth).
- "Purchase Price" means the price for the goods set out in the relevant Quotation or Sales Invoice.
- "Quotation" means the form of quotation submitted by a Seller to the Buyer in which these terms and conditions are deemed to be incorporated.
- "Sales Invoice" means the sales invoice issued by a Seller to the Buyer in which these terms and conditions are or are deemed to be incorporated.
- "Seller" in relation to any Quotation or Sales Invoice means:
- except as set out in
- below, J BLACKWOOD & SON PTY LIMITED ABN 43 000 010 300 (also trading as Blackwoods, Bakers Construction & Industrial Supplies, Total Fasteners); (ii) if in a Quotation or Sales Invoice a company referred to in (i) above is expressed to be acting as agent for a Person named in the Sales Invoice or Quotation then the Seller is that Person and the Buyer acknowledges that the Seller as named above acts only as the agent of that Person.
- "Tax Invoice" has the meaning given to that term by the GST Law.
- "Taxable Supply" has the meaning given to that term by the GST Law.
1.2 Interpretation
- Any special conditions specified on a Quotation or Sales Invoice shall, to the extent they are inconsistent with these terms and conditions, take precedence over these terms and conditions.
- Words importing the singular shall include the plural (and vice versa).
- If any provision of these terms and conditions is invalid and does not go to the essence of this agreement, these terms and conditions should be read as if that provision has been severed.
2. GOVERNING TERMS AND CONDITIONS
These are the only terms and conditions which are binding upon a Seller with the exception of those otherwise agreed in writing by the Seller which are imposed by a statute such as the Competition and Consumer Act 2010 (Cth) and which cannot be excluded. Any direction by the Buyer either verbal or written to procure goods or services from the Seller will be deemed as acceptance by the Buyer of these terms and conditions, despite any provisions to the contrary in the direction or any purchase order issued by the Buyer.
3. TERMS OF PAYMENT
Payment to the Seller for goods delivered and accepted is due within 30 calendar days of the end of the month in which the Buyer is invoiced for the goods. If the Buyer fails to make payment in accordance with this clause, all amounts owing by the Buyer to the Seller named in the Sales Invoice or any other Seller on any account shall immediately become due and payable. Each outstanding amount shall bear interest of the rate of 10% per annum calculated on a daily basis from the day it falls due until the day it is paid.
4. INSPECTION AND ACCEPTANCE
The Buyer shall inspect all goods upon delivery and shall within two (2) Business Days of delivery give notice to the Seller named in the relevant Sales Invoice or of any matter or thing by which the Buyer alleges that the goods are not in accordance with the Buyer's order. Failing such notice, subject to any non-excludable condition implied by law, such as those in the Competition and Consumer Act 2010 (Cth), the goods shall be deemed to have been delivered to and accepted by the Buyer.
5. RETURNS
Return of goods (other than in situations where the Seller is required to accept a return of goods under the Australian Consumer Law) must be approved by the Seller named in the relevant Sales Invoice. These authorised returns must be freight prepaid and will only be accepted if they are in a saleable condition and (unless otherwise agreed with the Seller) the goods are returned within 14 days of supply. The Seller reserves the right to charge a handling fee of $10 or 10% of the price of the goods returned (whichever is greater) under this provision. The Seller will not accept the return of goods specifically purchased, manufactured, machined or cut to size or to the Buyer's specification other than in situations where the Seller is required to accept a return of such goods under the Australian Consumer Law.