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1 |
Operation |
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1.1 |
Unless agreed by Arinda in writing, these terms and conditions
override any inconsistent terms and conditions. |
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1.2 |
This document supercedes any previous agreement in respect of
Arinda's terms and conditions of sale.
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2 |
Price |
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2.1 |
Arinda's prices are exclusive of delivery, insurance and
installation costs and taxes, duties and other imposts unless
specifically advised otherwise in writing by Arinda. The Purchaser
agrees to pay any such amounts whether they are imposed or effected
before or after lodgement of an order. |
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2.2 |
Unless specified otherwise in writing by Arinda, prices will be as
per the current Arinda price list which is subject to change without
notice. |
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2.3 |
Prices stipulated by Arinda may be increased by the amounts of any
increase affecting the cost of production and/or delivery due to
circumstances beyond the control of Arinda between the date of
quotation and the delivery date. |
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2.4 |
Customers whose purchase orders are affected by such a price change
will be advised by Arinda and may either cancel the order or confirm
acceptance of the variation in writing. |
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3 |
Payment |
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3.1 |
Payment in immediately available funds must accompany an order
unless Arinda agrees in writing to grant credit. |
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3.2 |
At Arinda's absolute discretion and on the terms required by Arinda,
Arinda may agree to grant credit. |
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3.3 |
If the Purchaser fails to pay the price or any other amount when
due, without prejudice to Arinda's other rights and remedies, the
Purchaser shall pay the amounts of any loss, claim or cost of Arinda
incurred in recovering such amount including legal and
administrative costs. Arinda shall also have the right to charge
interest on the overdue amount calculated daily at the Commonwealth
Bank Corporate Overdraft Reference Rate (Monthly Charging Cycle)
from time to time (or similar or replacement rate if this interest
rate no longer exists). |
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4 |
Delivery |
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4.1 |
Delivery dates and times are estimates only. Arinda shall not be
liable for any loss or claim arising from breach of delivery dates
and times. |
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4.2 |
Delivery will be deemed to be complete when the goods are made
available at a dispatch point nominated by Arinda or if agreed in
writing with Arinda, at the place nominated by the Purchaser. Arinda
shall have the right to repossess any goods not picked up within 14
days of being made available. |
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4.3 |
Arinda may deliver goods in instalments determined by Arinda. |
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5 |
Property and risk |
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5.1 |
Notwithstanding clause 5.3, title to and property in the goods shall
not pass from Arinda to the Purchaser until the Purchaser has paid
the price for the goods and any additional costs, charges, taxes,
duties or other imposts in relation to the goods to Arinda. |
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5.2 |
Until title to and property in the goods has passed to the
Purchaser:
(a) the Purchaser shall keep the goods free from all third
party interests including charges, liens and encumbrances;
(b) store the goods separately from its own goods and goods of
other persons and in a manner which makes them readily
identifiable;
(c) the Purchaser shall hold the goods on trust and as bailee for
Arinda;
(d) the Purchaser agrees not to sell, modify or alter the goods or
use them to produce other goods;
(e) Arinda shall be entitled to recover or require immediate
redelivery of the goods and be permitted to enter any premises on
which the goods are stored;
(f) Arinda may maintain an action for the price of the goods
notwithstanding that property in the goods may not have passed to
the Purchaser; and
(g) the Purchaser agrees to indemnify Arinda against all losses
including damage to the goods and death or injury to any person
arising out of the Purchaser's possession of the goods.
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5.3 |
All risk in relation to the goods, including risk of damage or loss,
passes to the Purchaser on shipment of the goods. |
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5.4 |
The Purchaser shall indemnify Arinda against and pay to Arinda
immediately upon demand all and any loss, damage, cost, charge,
expense or other liability (including but not limited to
consequential loss, loss of profits and legal costs) incurred or
sustained by Arinda in exercising any of its rights under this
clause on a full indemnity basis. |
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5.5 |
Nothing in this clause shall confer a right upon the Purchaser to
return the goods or to refuse or delay payment. |
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6 |
Claims |
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6.1 |
Any claim, including claims for defects, deficiencies and returns,
must be in writing and received by Arinda within seven days of
delivery. |
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6.2 |
Arinda shall have no liability, risk or responsibility whatsoever in
regard to goods the subject of a claim until Arinda expressly
accepts the claim by refunding the purchase price, replacing the
goods, repairing the goods or otherwise accepts the claim by written
notice. |
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6.3 |
Any goods returned to Arinda shall be complete as sold, in their
original packaging, and accompanied by the original invoice for the
goods. |
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6.4 |
The Purchaser shall be liable for packaging, transport and insurance
costs for the goods the subject of a claim until the goods are
returned to Arinda and Arinda accepts the claim. |
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6.5 |
Arinda holds a complete discretion to accept or reject any claim and
determine any liability of Arinda. |
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7 |
Implied terms and limitations of liability |
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7.1 |
Except as required by the Trade Practices Act 1974 or any relevant
State Act, all express or implied conditions, warranties,
undertakings and covenants not provided by Arinda in writing to the
purchaser are hereby excluded. To the extent that such conditions,
warranties, undertakings and covenants cannot be excluded, the
Purchaser's sole and exclusive remedy for any breach of an
condition, warranty, undertaking or covenant shall be limited to any
one of the following as determined by Arinda:
(a) the replacement of the goods or the supply of equivalent
goods;
(b) the repair or the cost of repair of the goods; or
(c) the payment of the cost of replacing the goods or acquiring
equivalent goods.
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7.2 |
Except as provided by clause 7.1, Arinda shall not be liable to the
Purchaser or any other person for any direct, indirect or
consequential loss, damage or expense arising out of or in
connection with, the performance or breach of these terms and
conditions or any matter relating to the supply of the goods or any
related services or any error in information supplied by Arinda. |
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7.3 |
Any liability of Arinda to the Purchaser in contract or tort in
relation to performance of the goods, supply of the goods, these
terms and conditions or supply of the goods, related services or
information shall not exceed the purchase price of the goods. |
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7.4 |
Arinda provides no warranty on goods supplied by Arinda but not
manufactured by Arinda. Arinda will endeavour to pass on the
warranty of the original manufacturer. |
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7.5 |
Arinda will not be liable for any damage, defect or failure in goods
caused by acts of nature, transport, packaging, impact with objects
or liquids, attachments, accessories; unauthorised repairs,
maintenance or service; or power supplies. |
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8 |
Cancellation |
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8.1 |
If the Purchaser cancels an order without Arinda's written consent,
Arinda is entitled to claim, as a genuine loss arising from such
breach of contract, liquidated damages. |
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9 |
Specifications |
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9.1 |
Arinda may at any time change the documented specifications of goods
and the Purchaser will accept the goods delivered in fulfilment of
its order unless otherwise agreed in writing by Arinda. |
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9.2 |
This document shall be conclusive evidence of the matters stated
herein. |
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10 |
Dealing with goods |
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10.1 |
The Purchaser agrees not to act or omit to act in any way damaging
to the intellectual property of Arinda and its related entities
including removing or altering trademarks on goods. |
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10.2 |
The Purchaser acknowledges that all intellectual property associated
with the goods is the property of Arinda, related entities or
relevant manufacturers or suppliers; and that it acquires no right
or interest in any such intellectual property. |
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10.3 |
All resale prices are recommendations only. The Purchaser agrees
only to resell goods in their original packaging and condition, and
not to resell used or defective goods as new goods. |
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10.4 |
The Purchaser agrees not to export the goods from Australia without
the written consent of Arinda. |
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11 |
Default |
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11.1 |
Upon:
(a) the Purchaser failing to pay any amount to Arinda when due;
(b) the Purchaser breaching these terms and conditions;
(c) Arinda having reasonable grounds to believe the Purchaser will
be unable to pay amounts due or to become due to Arinda; or
(d) the Purchaser dying or being deregistered; committing an act
of bankruptcy; having any action taken by or against it for the
winding up or placing of the Purchaser under official management
or receivership; having a receiver, trustee, assignee, liquidator
or controller appointed; or a transfer in ownership or control of
the Purchaser occurring;
Arinda shall have the right to:
(a) cease supplying goods to the Purchaser;
(b) otherwise cease to perform any of its obligations to the
Purchaser;
(c) terminate this agreement;
(d) enter into the premises on which the goods are stored and
repossess any goods already delivered whether or not title in such
goods has passed to the Purchaser; and
(e) recover from the Purchaser all amounts due to Arinda,
without incurring any liability and without prejudice to its
rights to recover any amount owing to it by the Purchaser including
any damages |
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12 |
General |
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12.1 |
Any indulgence, waiver or extension of time shall not in any way
prejudice, interfere with or constitute a waiver of Arinda's rights. |
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12.2 |
The laws of New South Wales, Australia apply and the parties agree
to submit to the jurisdiction of the courts of that State. |
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12.3 |
The provisions of these terms and conditions and the rights and
liabilities conferred by them are distinct and severable and any
invalidity shall not effect another term, condition, liability or
right. |
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12.4 |
Arinda shall not be liable to the Purchaser for any loss or damage
directly or indirectly arising out of or in connection with any
delay in delivery or failure to perform any other term or condition
of an agreement or contract where such delivery or failure is caused
directly or indirectly by an act of God, fire, armed conflict,
labour dispute, civil commotion, intervention of a government,
inability to obtain labour or manufacturing facilities, accidents,
interruptions or delay in transportation or any other cause beyond
Arinda's control. |
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