1.1 In these conditions "Seller" means Tenrod Australia
Pty Ltd or any of its associated companies and "Buyers" means the person, body,
firm or company with whom the Seller enters into a contract for the sale of
goods.
1.2 These terms and conditions apply to all contracts of
sale entered into by the Seller and are implied into all purchase orders placed
by the Buyer. No other terms and conditions contained in the Buyer's purchase
order or in any other communication from the Buyer will have any effect or change these terms and conditions unless
expressly agreed in writing by the Seller.
1.3 These conditions bind the Seller, the Buyer and their
respective successors and assigns.
1.4 Words implying persons shall include corporations;
words implying the singular shall include the plural and vice versa; and words
implying the masculine gender shall include all genders as the case may
require.
2. Quotation and Purchase Order
2.1 Subject to clause 2.5, no binding contract for the sale of goods
comes into existence until: (a) the Buyer gives the Seller a purchase order;
and (b) the Seller gives the Buyer a written confirmation of the order; and (c)
the Buyer has accepted the Seller's written confirmation of the order. The
Buyer will be taken to have accepted the Seller's written confirmation of the
order and these terms and conditions if no objection is received by the Seller
from the Buyer by the earlier of: (i) 5.00pm on the 5th Business Day after the issue of the
Seller's written confirmation of the order; and (ii) the date of dispatch of
the goods.
2.2 Subject
to clause 2.5, any confirmation of the order which is taken to be accepted by
the Buyer gives rise to a contract for sale of the goods described in the
confirmation of the order on these terms and conditions.
2.3 Once the Seller has sent to the Buyer the
Seller's written confirmation of the order or
(if earlier) has dispatched the goods to the Buyer, the Buyer may not cancel or
modify the purchase order without the written consent of an authorised employee
of the Seller. If approved, the Buyer must indemnify the Seller against all
costs and losses which arise as a result of such cancellation or modification.
2.4 The Seller is not liable for orders placed
fraudulently or without authority if the order received from the Buyer is
received by: (a) telephone from a person who identifies themselves as being an
employee or authorised representative of the Buyer; or (b) email from an email
address which appears to have originated from an employee or authorised
representative of the Buyer; or (c) fax signed by a person who appears to be an
employee or authorised representative of the Buyer, unless expressly agreed otherwise
with the Buyer.
2.5 If the Buyer requests immediate dispatch of the goods and the
details about the price and description of the goods contained in the Buyer's
purchase order are correct, the Seller is not required to give the Buyer
written confirmation of the order and may immediately dispatch the goods to the
Buyer. In this case, the Buyer, in accepting delivery of the goods, is taken to
have purchased the goods on these terms and conditions.
3. Product Details
Any information about the goods contained in
catalogues, brochures or other written material shall be treated as approximate
indications and shall not be binding on the Seller, unless expressly agreed in
writing.
4. Price of Payment
4.1 Unless specifically stated otherwise all
prices are quoted exclusive of any freight and insurance charges, sales tax,
customs duty and GST which shall be added to the amount to be paid by the
Buyer.
4.2 All prices of imported goods quoted are based
on the FOB price of the Seller's supplier and the rates of exchange, freight,
insurance and customs duty ruling at the date of quotation. The quoted prices
may be varied by the same amount by which the Seller's actual costs have been
varied as a result of any change in the said rates.
4.3 Subject to clause 4.4 and any statement to
the contrary contained in the Seller's quotation, all accounts are on a COD
basis and all goods must be paid for in cash or by bank cheque before they are
delivered. If the Buyer fails to pay the full purchase price on delivery, the
Seller retains the right to refuse to complete delivery.
4.4 If the Buyer has an approved credit account
with the Seller the goods supplied must be paid for in cash or by bank cheque
within thirty (30) days from the date of invoice or thirty (30) days from the date
of shipment whichever occurs first. Where the Buyer is overdue with any
payment, the Seller reserves the right to change the Buyer to a COD account.
4.5 Each consignment shall be considered a
separate and independent transaction and payment shall be made accordingly.
4.6 All Seller's
invoices must be paid in full by the Buyer without set-off.
4.7 Without prejudice to any other right or
remedy of the Seller, the Buyer will indemnify the Seller against any costs,
fees, charges and disbursements charged by any party engaged by the Seller for
the purpose of the collection or recovery of moneys due and payable by the
Buyer to the Seller.
4.8 Without prejudice to any other remedy the
Seller has, the Seller reserves the right to charge interest on any overdue payment
at an annual rate equal to 2% above the rate notified by the Commonwealth Bank
of Australia from time to time as being that Bank's indicator lending rate. If
the Buyer disputes the whole or any portion of the amount invoiced by the
Seller, the Buyer must pay the portion of the invoiced amount not in dispute
and must notify the Seller in writing of the reasons for disputing the
remainder of the invoice. If it is resolved that some or all of the disputed
amount ought properly to have been paid at the time it was invoiced, then the
Buyer will pay the unpaid amount in accordance with these terms and conditions.
5. Passing of Risk and Property
5.1 Risk in the goods passes to the Buyer when
the goods are loaded at the Seller's premises for delivery to the Buyer. Risk
of loss in transit is the responsibility of the Buyer.
5.2 The Seller shall retain title to the goods
until it has received payment in full for them. Goods belonging to the Seller
which have not been paid for in full are held by the Buyer solely as bailee for
the Seller and must be: (a) stored separately by the Buyer so that they are
identifiable as such; (b) kept in good and serviceable condition; (c) secured
from risk, damage and theft; and (d) kept fully insured against risks that are
usual or common to insure against in a business of a similar nature to the
Buyer's business.
5.3 The fact that the Seller retains title to the
goods until they have been paid for shall not affect its right as an unpaid
Seller or the passing of the risk of the goods to the Buyer pursuant to clause
5.1. Furthermore if payment is overdue, or the Buyer enters into bankruptcy,
liquidation, a composition with its creditor, has a receiver or manager
appointed over all or any of its assets or becomes insolvent the Seller shall
be entitled without prejudice to any other remedy, to repossess and re-sell
goods belonging to it and to enter any premises of the Buyer without notice for
the purpose of re-possession. The act of supplying and or delivering the goods
to a sub-buyer shall be deemed to be an assignment of the proceeds received by
the Buyer in respect of the goods from the Buyer to the Seller absolutely and
not by way of security.
6. Intellectual Property
The Buyer shall acquire no intellectual property
rights in any computer software or drawings, designs, technical solutions, etc.
included in or relating to the goods even if the goods have been customized for
the Buyer at the Buyer's cost. Such intellectual property rights are retained
by the Seller or its supplier (as the case may be).
7. Infringement of Patents and
other Intellectual Property
If the goods are claimed to infringe on any
patent or other intellectual property rights of a third party, or where a risk
of such infringement arises, the Buyer accepts that the Seller at his
discretion may either: (a) obtain the right from the legitimate holder of the
patent or intellectual property right to continue the use; or (b) modify or
replace the goods so as to bring an end to the infringement. Should none of
these options be available on terms considered fair by the Seller, the Seller
may demand that the Buyer refrain from using the goods.
8. Transport
Buyer shall make his own transport arrangement. Where the
Buyer fails to make transport arrangements the Seller shall (a) for deliveries
WITHIN the metropolitan area of mainland state capital cities, use a freight
service of its own choosing and add a standard freight charge to the invoice;
and (b) for deliveries OUTSIDE these areas, the goods will be dispatched
freight on, or charged to the Buyer on the Seller's invoice. The goods will be
delivered to the address specified in the purchase order.
9. Delivery Time
9.1 Delivery dates are estimated in good faith by
the Seller and are not of the essence of the contract.
9.2 If delivery of the goods by the Seller is
delayed for a cause other than the Seller's negligence, the Buyer will be
liable for any extra charges, losses or expenses incurred by the Seller. The
Buyer will not be entitled to cancel the purchase order by reason of that
event.
10. Minimum Order
10.1The minimum order value and this minimum order
quantity per line item that the Seller will accept are indicated in the
Seller's quotation, where less than minimum quantities are ordered the Seller
may automatically increase the quantity to meet minimum levels.
10.2Where quantities are ordered which constitute
broken pack sizes, those quantities may be increased to the next highest
unbroken pack size.
11. Claims
11.1The Buyer shall inspect all goods supplied upon
delivery. The Seller shall not be liable for shortages and other errors in
delivery unless the Buyer submits a claim in writing to the Seller within seven
(7) days of the delivery to which the claim relates.
11.2Goods cannot in any circumstances be returned
to the Seller (a) without the prior written consent of an authorised employee
of the Seller: and (b) unless accompanied by a delivery document showing the
Seller's Return Authorisation number.
12. Warranty
12.1All goods are supplied by the Seller to the
Buyer on an "as is" basis without any warranty of any
kind. However the Seller shall assign to the Buyer in so far as it is able to
do so the benefit of any condition, warranty or guarantee express or implied in
the Seller's contract with its own supplier.
12.2Subject to clause 12.3, clause 12.1 sets out
the full extent of the Seller's obligation and liability to the Buyer with
respect to the goods supplied and all terms, conditions, warranties and
representations that might otherwise be implied by statute or otherwise are
excluded to the fullest extent permitted by law.
12.3Where the law implies warranties or conditions which cannot be
excluded, the Seller's liability is limited at its option to:-
(a) The replacement of goods or supply of equivalent goods (b) The payment of
the cost of replacing goods or acquiring equivalent goods (c) The payment of
the cost of having the goods repaired; or (d) The repair of the goods.
13. Limitation of Liability
To the extent
permitted by law and subject only to any exceptions contained in these
conditions: (a) the Seller is not liable to the Buyer for any form of indirect
loss, damage or expense (including consequential loss) sustained or incurred by
the Buyer or any other party resulting out of the supply of the goods by the
Seller, the use or performance of the goods, any breach by the Seller of these
terms and conditions or the negligence of the Seller; and (b) the Seller's
liability for direct losses is limited to an amount equal to the actual amount
paid by the Buyer to the Seller (less all discounts and refunds) in respect of
the goods in relation to which the liability arose.
14. Governing Laws
The construction validity and
performance of any contract incorporating these terms and conditions shall be
governed by the laws of the State of
15. Force Majeure
The Seller's obligations shall be
suspended in the event of non-performance attributable to circumstances beyond
the Seller's control. In this case, the Seller may cancel the purchase order
and will not be liable for damages as a result of the suspension or cancellation.
16. Privacy
Information
collected by the Seller from the Buyer which contains any personal information
(as defined in the Privacy Act 1988 (Cth)) about the
Buyer, its employees or contractors may be used by the Seller in any manner
permitted by the Privacy Act 1988 (Cth) and the
Seller's privacy policy
17. General
17.1If any provision or paragraph of this document
is determined to be illegal and unenforceable it shall not affect the
enforceability of any other provision or paragraph of this document.
17.2Headings are included for ease of reference and
do not form part of or affect interpretation of these conditions. The benefit
of a purchase order or contract must not be assigned by the Buyer without the
Seller's prior written consent. The Seller may consent to the assignment of a
contract by the Buyer subject to such conditions as the Seller may in its
absolute discretion choose to impose.
17.3 A variation or waiver of a provision or any
amendment of these terms and conditions is effective only if in writing and
signed by the Seller.
17.4 A failure, delay, relaxation or indulgence on
the part of Seller in exercising any right conferred on it by these terms and
conditions does not operate as a waiver of that right.
17.5Any notice given in
respect of these terms and conditions must be in writing and given personally
or delivered to the recipient's address last known to the person giving the
notice. In the case of service by post, the notice will be deemed to have been
served two days following the date of posting.