Terms and conditions of sale for Bretts Pty Limited
ABN 22 009 658 315 (Bretts)
1. Definitions and interpretation
1.1 In these terms and conditions:
(1) Bretts means Bretts Pty Limited ABN 22 009 658 315 and any related body corporate of Bretts within the meaning of section 50 of the Corporations Act 2001;
(2) Purchaser means the entity purchasing the goods upon these terms and conditions.
1.2 If a party consists of more than 1 person, this agreement binds each of them separately and any 2 or more of them jointly.
1.3 A party which is a trustee is bound both personally and in its capacity as trustee.
2. Binding terms and conditions
2.1 The only terms which are binding upon Bretts are:
(1) those set out in these terms and conditions or otherwise agreed to in writing by Bretts; and
(2) those, if any, which are imposed by law and which cannot be excluded.
3. Price
3.1 Status of price list
Any quotation or price list of Bretts is not an offer to sell but is an invitation to treat only and Bretts reserves the right to accept or reject in its absolute discretion any orders which may be received by it.
3.2 Price change
The prices shown in a quotation or price list are subject to alteration without notice up to the time of acceptance by Bretts.
3.3 Acceptance by Bretts
All orders are subject to acceptance by Bretts within 30 days of receipt by it of the Purchaser's order.
3.4 Price of goods sold
If Bretts accepts an order it must supply the goods at the price shown in the quotation or price list current when Bretts accepts the order, unless otherwise agreed in writing.
3.5 Cancellation of orders
Orders cannot be cancelled without Bretts' written consent and then under terms that will indemnify Bretts against any losses.
3.6 Bill of quantities
Quotations issued against bills of quantities submitted by Purchasers, are limited to the quantities and descriptions shown on such Bills and Bretts accepts no responsibility for the accuracy of, or omissions from such bills of quantity. The quantities and descriptions will be charged for at the rate of each item for which a price is included in the quotation.
4. Goods and services tax
4.1 In this clause GST means GST as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended (GST Act) or any replacement or other relevant legislation and regulations. Unless GST is expressly included, the consideration expressed to be payable under any other clause of these terms and conditions for any supply made under or in connection with these terms and conditions (including the price at which the goods are sold) does not include GST.
5. Delivery
5.1 Delivery at store
Unless otherwise specified in writing, delivery is at Bretts' store, and the cost of transportation of the goods must be paid by the Purchaser.
5.2 Delivery charges where not at store
Where a place of delivery other than at Bretts' store is specified in writing, the Purchaser must pay the costs of transportation of the goods to the place of delivery at the same time as, and in addition to, the price.
5.3 Delivery date
If a delivery date is specified that date is an estimate only and Bretts is not liable for any delay in delivery.
5.4 Partial supply
If Bretts is unable to supply the Purchaser's total order these terms and conditions continue to apply to the goods supplied.
5.5 Storage
Should storage by Bretts of goods be necessary due to the Purchaser being unable to accept delivery on the agreed delivery date, a progress payment equal to 90% of the cost of such goods stored will be payable by the Purchaser within 30?days of the original agreed date. The Purchaser will pay all reasonable storing and insurance charges in relation to goods/materials (manufactured or not) which are stored by Bretts on the Purchaser's behalf.
6. Acceptance by Purchaser
6.1 The Purchaser must inspect the goods immediately upon delivery and must within 7 days after the date of inspection give written notice to Bretts, with particulars, of any claim that the goods are not in accordance with the contract. If the Purchaser fails to give that notice, then to the extent permitted by statute the goods must be treated as having been accepted by the Purchaser and the Purchaser must pay for the goods in accordance with the provisions of these terms and conditions.
6.2 Variations
If the Purchaser requires any variation in the works and/or goods after acceptance of this quotation including any inaccuracies in documents, drawings etc supplied for quotation purposes it shall notify Bretts of the variation required but such variation will not be effective unless and until Bretts and the Purchaser agrees as to the amount by which or manner in which the price is to be varied as a consequence.
7. Payment
7.1 Payment terms
(1) If the Purchaser has a current credit facility with Bretts then payment for goods sold by Bretts to the Purchaser must be tendered no later than the expiration of the calendar month following the month of sale.
(2) If the Purchaser does not have a current credit facility with Bretts then:
(a) if a stock order is placed with Bretts for goods on hand, a deposit of 30% of the price of the goods must be paid at the time of order with the balance due at the time of sale;
(b) if a stock order is placed with Bretts and Bretts does not hold the ordered goods on hand and is required to order such goods in then the whole of the purchase price must be paid at the time of order;
(c) all off-the-shelf purchases must be paid at the time of sale.
7.2 Statement of account
During each month, Bretts will provide to the Purchaser a statement of account identifying all sales made to the Purchaser during the preceding month.
7.3 Timing of payment
Payment must be treated as made:
(1) if cash is tendered?- on the date it is tendered; and
(2) if a cheque (bank or otherwise) or other negotiable instrument is tendered?- on the date upon which the cheque or other negotiable instrument is negotiated and cleared by Bretts' bankers.
7.4 Time of the essence
Time is of the essence in respect of the Purchaser's obligation to make payment for goods sold by Bretts to the Purchaser.
7.5 Administration Charge
The Purchaser must pay an administration charge of 2.5% on all goods purchased on credit. This administration charge will be added to each invoice but if the Purchaser pays all credit amounts by the due date for payment then Bretts will waive the administration charge.
7.6 Merchant fees
If the Purchaser pays any part of its credit account by a credit or debit card then the Purchaser must pay an additional amount to Bretts equivalent to the merchant fee payable by Bretts to the respective card issuer.
7.7 Suspension of credit
Bretts may at any time suspend credit to a Purchaser without any reason being given for its action at which time all monies then owing to Bretts by the Purchaser will be repayable immediately.
7.8 Credit limit
Bretts will be entitled to vary the limit of credit afforded to a Purchaser at any time and any credit sum then outstanding in excess of the Purchaser's credit limit will be repayable immediately.
7.9 If the Purchaser defaults in making payment to Bretts in accordance with these terms and conditions, Bretts may at its absolute discretion require the Purchaser to reimburse Bretts for all collection costs including legal costs incurred by Bretts calculated on a solicitor and client basis. Bretts reserves the right to charge interest on overdue amounts at the rate of 1.5% per month calculated on a monthly basis.
8. Returns
8.1 Terms applying to all returns
The Purchaser must not return any goods which the Purchaser claims are not in accordance with the contract (whether or not the goods are treated as accepted by the Purchaser) unless Bretts has first given its written approval to their return. Their return must then be with freight and cartage prepaid by the Purchaser.
8.2 Returns where goods accepted
If Bretts has given its written approval to the return of goods as accepted under clause 6.1:
(1) Bretts Will only give credit for the goods returned if they are in saleable condition; and
(2) Bretts may charge a handling charge equivalent to 25% of the price of the goods returned.
8.3 Returns where goods not accepted
If Bretts has given its written approval to the return of goods which are not treated as accepted by the Purchaser under clause 6.1 Bretts must refund the freight and cartage to the Purchaser if the Purchaser's claim that the goods are not in accordance with the contract is found to be valid.
9. Risk and insurance
9.1 Goods supplied by Bretts to the Purchaser are at the Purchaser's risk immediately on delivery to the Purchaser or into the Purchaser's custody (whichever is the sooner). The Purchaser must insure the goods at its cost from delivery of the goods until they are paid for in full against such risks as it thinks appropriate and must note the interest of Bretts on the policy and produce a certificate to this effect to Bretts on request.
10. Retention of title
10.1 When property passes
Property in the goods supplied by Bretts to the Purchaser under these terms and conditions does not pass to the Purchaser until the money owing for those goods, and any other money owing by the Purchaser to Bretts, has been paid. The Purchaser in the meantime takes custody of the goods and retains them as the fiduciary agent and bailee of Bretts.
10.2 Allocation of payments
Where the Purchaser does not make payment in respect of specific goods, payment must be treated as having been made first in respect of goods which have passed out of the possession of the Purchaser, and then in respect of whatever goods still in the possession of the Purchaser Bretts elects.
10.3 Purchaser's obligations until paid for
Until the goods have been paid for in full the Purchaser:
(1) must properly store, protect and insure the goods, including storing them in a manner that shows clearly that they are the property of Bretts;
(2) may sell the goods, in the ordinary course of its business, but only as fiduciary agent of Bretts. The Purchaser has no authority to bind Bretts to any liability by contract or otherwise and must not purport to do so. The Purchaser receives all proceeds, whether tangible or intangible, direct or indirect, of any dealing with the goods (including any proceeds from insurance claims) in trust for Bretts and must keep the proceeds in a separate bank account until the liability to Bretts is discharged; and
(3) agrees not to sell, assign, charge or otherwise encumber or grant any interest over any obligations which any third party may owe to the Purchaser as a result of the use, manufacture or resale of the goods (Book Debts).
10.4 Use of goods in manufacture
(1) If the Purchaser uses any of the goods in a manufacturing or construction process of its own or a third party and sells the product of the manufacturing or construction process (Manufactured Product), then the Purchaser holds such part of the proceeds of the sale of any Manufactured Product as relates to any goods sold by Bretts to the Purchaser and used in the manufacturing or construction process on trust for Bretts. That part must be treated, for the purpose of quantifying how much the Purchaser holds on trust for Bretts but for no other purpose, as being equal in dollar terms to the amount owing by the Purchaser to Bretts at the time of the receipt by the Purchaser of the proceeds of sale for all goods sold by Bretts to the Purchaser.
(2) If the amount owing by the Purchaser to Bretts is greater than the proceeds of sale of the Manufactured Product the balance remains owing by the Purchaser to Bretts.
10.5 Balance sale price remains a debt
If the sale price of all goods sold by Bretts to the Purchaser is greater than the sum of:
(1) the proceeds actually received by Bretts in respect of all dealings by the Purchaser with the goods (including the sale of Manufactured Product referred to in clause 10.4); and
(2) all other payments received by Bretts in respect of the goods;
the difference remains a debt owing by the Purchaser to Bretts.
10.6 Reclaim possession if Insolvency Event occurs
Bretts is entitled to reclaim possession of the goods, even if they have been paid for in full, in satisfaction of all debts owing to Bretts, if any of the following events occurs (Insolvency Event):
(1) the Purchaser defaults under these terms or conditions;
(2) the Purchaser commits an act of bankruptcy;
(3) a receiver is appointed to the Purchaser;
(4) the Purchaser goes into liquidation, administration, or some other form of insolvency administration whether formal or informal;
(5) the Purchaser ceases to carry on business; or
(6) the Purchaser enters into a scheme or compromises with its creditors;
without prejudice to any other rights of Bretts.
10.7 Bretts' authority to inspect and reclaim
The Purchaser irrevocably authorises Bretts at any time, to enter any premises:
(1) upon which Bretts' goods are stored to enable Bretts:
(a) to inspect the goods; and/or
(b) if the Purchaser has breached the contract, or has committed an Insolvency Event, to reclaim possession of the goods; and
(2) upon which the Purchaser's records pertaining to the goods are held to inspect and copy the records.
10.8 Goods attached to premises
Bretts' property in the goods is not affected by the fact that the goods become fixtures attached to premises of the Purchaser or a third party, and if Bretts enters those premises for the purpose of reclaiming possession of the goods, and incurs any liability to any person in connection with the entry or reclamation, the Purchaser indemnifies Bretts against that liability.
10.9 Goods supplied on credit
The provisions of this clause 10 apply despite any arrangement between the parties under which Bretts grants the Purchaser credit. Where Bretts grants the Purchaser credit for a specific period the credit period is for that period or until the resale of the goods by the Purchaser or their use by the Purchaser in a manufacturing or construction process of its own or a third party, whichever is the earlier.
10.10 Action before property passes
Bretts may commence legal action against the Purchaser if the goods are not paid for within Bretts' usual credit terms or any separate arrangement for credit made by Bretts with the Purchaser although property in the goods has not passed to the Purchaser.
11. Insolvency of Purchaser
11.1 When breach occurs
A breach of contract must be treated as having occurred if:
(1) an application or order is made to or by a court or a resolution is passed for the winding up of the Purchaser or notice of intention to propose such a resolution is given; or
(2) a controller (as defined in section?9 of the Corporations Act 2001) or an administrator under Part?5.3A of the Corporations Act 2001 is appointed in respect of the Purchaser, or the whole or any part of its undertaking or property.
11.2 Application when credit arrangements
The provisions of clause 11.1 apply despite any arrangement between the parties under which Bretts grants the Purchaser credit.
12. Exclusions and limitations
12.1 Conditions and warranties required to be binding
The only conditions and warranties which are binding on Bretts in respect of:
(1) the state, quality or condition of the goods supplied by it to the Purchaser; or
(2) advice, recommendations, information or services supplied by it, its employees, servants or agents to the Purchaser regarding the goods, their use and application;
are those imposed and required to be binding by statute (including the Trade Practices Act 1974).
12.2 Limitation on liability
To the extent permitted by statute the liability, if any, of Bretts arising from the breach of the conditions or warranties referred to in clause?12.1 is, at Bretts' option, limited to and completely discharged:
(1) in the case of the goods, by either:
(a) the supply by Bretts of equivalent goods; or
(b) the replacement by Bretts of the goods supplied to the Purchaser; and
(2) in the case of advice, recommendations, information or services, by supplying the advice, recommendations, information or services again.
12.3 Exclusion of other conditions and warranties
Except as provided in this clause?12 all conditions and warranties implied by law in respect of the state, quality or condition of the goods which may apart from this clause be binding on Bretts are excluded.
12.4 Acknowledgments by Purchaser
The Purchaser acknowledges that the Purchaser does not rely and it is unreasonable for the Purchaser to rely on the skill or judgment of Bretts as to whether the goods supplied are reasonably fit for any purpose for which they are being acquired, and that the sale is not a sale of goods by description or sample.
12.5 Exclusion of consequential loss
Except to the extent provided in this clause?12 Bretts has no liability (including liability in negligence) to any person for:
(1) any loss or damage consequential or otherwise suffered or incurred by that person in relation to the goods or advice, recommendations, information or services; and
(2) in particular without limiting clause 12.5 (1) any loss or damage consequential or otherwise suffered or incurred by that person caused by or resulting directly or indirectly from any failure, defect or deficiency of any kind of or in the goods or advice, recommendations, information or services.
13. Indemnity
13.1 The Purchaser indemnifies Bretts, regardless of any negligence on the part of Bretts, against:
(1) all losses incurred by Bretts;
(2) all liabilities incurred by Bretts; and
(3) all costs actually payable by Bretts to its own legal representatives (whether or not under a costs agreement) and other expenses incurred by Bretts in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal);
arising directly or indirectly as a result of or in connection with the supply of goods by Bretts to the Purchaser unless caused by wilful misconduct on the part of Bretts or any of its employees or agents acting within the scope of their employment.
13.2 The Purchaser must pay to Bretts all liabilities, costs and other expenses referred to in clause 13.1, whether or not Bretts has paid or satisfied them.
14. Testing
14.1 All the goods are manufactured from high-grade materials and to rigid specifications, but since Bretts has no control over the conditions under which the goods are applied, used, stored, transported or handled the Purchaser is advised to test the goods thoroughly before adapting them to its own use.
15. Privacy
15.1 Where goods are supplied to the Purchaser on credit the Purchaser irrevocably authorises Bretts, its employees and agents to make such enquiries as it considers necessary to investigate the credit worthiness of the Purchaser including (without limitation) making enquiries from persons nominated as trade referees, the bankers of the Purchaser or any other credit providers (Information Sources) and the Purchaser authorises the Information Sources to disclose to Bretts all information concerning the Purchaser which is within their possession and which is requested by Bretts.
16. Force majeure
16.1 If a party is prevented from or delayed in complying with an obligation (other than to pay money) by an event beyond its reasonable control, performance by it of that obligation is suspended during the time, but only to the extent that, compliance is prevented or delayed.
17. Entire understanding
17.1 These terms and conditions:
(1) are the entire agreement and understanding between Bretts and the Purchaser on everything connected with the subject matter of these terms and conditions; and
(2) supersede any prior agreement or understanding on anything connected with that subject matter.
17.2 Bretts and the Purchaser have entered into these terms and conditions without relying on any representation by the other or any person purporting to represent the other.
18. Waiver
18.1 A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.
18.2 The exercise of a power or right does not preclude either its exercise in the future or the exercise of any other power or right.
18.3 A waiver is not effective unless it is in writing.
18.4 Waiver of a power or right is effective only in respect of the specific instance to which it relates and for the specific purpose for which it is given.
19. Notices
19.1 The Purchaser agrees that services of any notices or court documents may be effected by forwarding same by prepaid post or facsimile to the last known address of the Purchaser.
20. Governing law and jurisdiction
20.1 The law of Queensland governs these terms and conditions.
20.2 The parties submit to the non-exclusive jurisdiction of the courts of Queensland and of the Commonwealth of Australia.