Interpretation
In these conditions:
"Supplier" means B.K. Sales Australia Pty. Ltd.
"Customer" means the Customer to whom this invoice is addressed.
"Goods" means any products and services sold to the Customer pursuant to these conditions of sale.
Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010) and which by law cannot be excluded, restricted or modified.
General
These conditions shall prevail over all conditions of the Customer's order to the extent of any inconsistency. The Customer acknowledges having read and understood these terms and agrees to be bound by them.
Payment
The purchase price in relation to the Goods shall be payable net and payment thereof shall be made within thirty (30) days of the date of the Supplier's tax invoice (unless other terms of payment are expressly agreed in writing between the parties).
Default
If payment is not made by the Customer to the Supplier on the due date specified herein, without prejudice to any other right or remedy, all outstanding sums shall bear interest on a daily basis at the rate of 2% per month (24% per annum) and such overdue sums together with all interest and legal costs incurred shall be recoverable forthwith from the Customer.
Alteration
These conditions will only be altered or varied with the written agreement of the Supplier.
Returned Goods
Supplier shall not be under any obligation to accept goods returned by the Customer and will do so only where such goods should be returned in the sole opinion of the Supplier and only on the following terms :-
the Supplier reserves the right to waive any claim where written notification of such claim by the Customer is not received by the Supplier within 7 days of the Goods being delivered to the Customer;
the Supplier agrees to accept such goods by return;
the goods are returned intact in their original packaging and with their original invoice;
the amount of credit allowed for returned goods will be subject to a service charge by the Supplier to handle such return;
the Supplier is not responsible for any loss or damage in transit;
the Supplier retains the sole right to repair, replace or raise a credit note with respect to any returned goods pursuant to clause 16 hereunder;
the Supplier’s responsibility for any consequential or indirect loss claimed by the Customer or its customers or any other parties whether to people, property or the environment is limited to the extent set out in clause 13 hereunder.
Shortage
The Customer waives any claim for shortage of any goods delivered if a claim in respect thereof has not been notified in writing to Supplier within seven (7) days from the date of receipt of goods by the Customer.
Cancellation
No order may be cancelled except with the Supplier's consent in writing and on terms which will indemnify the Supplier against all losses.
Sample
The Supplier shall not be liable to the Customer in respect of any reasonable variation between any sample and any goods supplied to the Customer.
Force Majeure
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of the Supplier or the Customer either is unable to perform in whole or in part any obligation agreed between the parties, such party shall be relieved of that obligation to the extent and for the period that it is so unable to perform and shall not be liable to the other party in respect of such inability.
Delivery
Delivery times made known to the Customer are estimates only and Supplier shall not be liable for late delivery or non-delivery and under no circumstances shall Supplier be liable for any loss, damage or delay occasioned to the Customer or its customers arising from late or non-delivery of the Goods. The Supplier will provide a tax invoice on or before delivery of the Goods to the Customer.
Loss or Damage in Transit
The Risk in the Goods passes to the Customer upon the goods leaving the Supplier’s control and the Customer shall be responsible for any loss or damage to goods or any consequential loss to people, property or the environment arising therefrom for which loss it will have the responsibility to arrange insurance.
Liability
The Supplier's liability for goods supplied by it is limited to making good any defects at Supplier's option by repair, replacement, or raising a credit note to the value of the Goods within a period not exceeding six calendar months after the Goods have been dispatched provided that:
defects have arisen solely from the Supplier’s faulty materials or workmanship;
the Goods have not received maltreatment, inattention or interference;
defective goods are promptly returned free of cost to Supplier.
the Supplier is not liable for any consequential losses to people or property.
xcept as provided herein, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are hereby expressly excluded and Supplier shall not be liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout and assembly of the Goods or arising out of Supplier's negligence or in any way whatsoever.
Supplier's liability (including liability for a breach of a condition or warranty implied by the Competition and Consumer Act) is hereby limited to:
the replacement of the Goods or the supply of equivalent goods; or
the repair of the Goods; or
the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
the payment of the cost of having the Goods repaired.
Warranties and Disclaimers
The Customer acknowledges that the Supplier makes no representations as to the suitability of the Goods supplied hereunder for a particular purpose.
The Customer takes full responsibility for the testing of any goods or services supplied to it by the Supplier hereunder before such goods are passed on for further processing by any party.
Rights in Relation to Goods
Title in the Goods remains with the Supplier until payment in full by the Customer. The Supplier is entitled to exercise a lien over any goods delivered to it by the Customer and the Supplier can exercise its right as bailee of such goods until all sums owing to it for such goods by the Customer, have been paid in full. Until title to the Goods passes to the Customer, the Supplier holds a security interest in the Goods and all proceeds from the sale of the Goods as contemplated under the Personal Property Security Act 2009 (Cth) and may register same on the PPSR.
Storage
Supplier reserves the right to make a reasonable charge for storage or demurrage if adequate delivery or other instructions are not provided by the Customer.
Place of Contract
The contract for sale of the Goods is made in Victoria and the parties agree to submit all disputes arising between them to the jurisdiction of the courts of Victoria.
Termination upon Default
Upon termination of this agreement by the Supplier as a result of any default by the Customer, the Supplier will be entitled to recover from the Customer any losses the Supplier has incurred as a result of such termination, including any loss arising from any outstanding but unfilled orders at the date of termination.