A good man once said our terms should be::
- buy lots of stuff
- pay for it
- be happy
Easy really...

But, our lawyers said we couldn't use that, and came up with the following:

1.              Definitions

1.1          “Seller” shall mean The Wholesaler (QLD) Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of The Wholesaler (QLD) Pty Ltd.  The Seller acts as a wholesale middle-man between its original supplier or manufacturer (as stated on the sales invoice form) and its Customer.

1.2          “Customer” shall mean the Customer (or any person purporting to be acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Seller to the Customer.

1.3          “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.

1.4          “Goods” shall mean Goods supplied by or via the Seller to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Seller to the Customer.

1.5          “Services” shall mean all Services supplied by or via the Seller to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

1.6          “Price” shall mean the price payable for the Goods as agreed between the Seller and the Customer in accordance with clause 4 of this contract.

 

2.              The Commonwealth Trade Practices Act 1974 (“TPA”) and Fair Trading Acts (“FTA”)

2.1          Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

 

3.              Acceptance

3.1          Any instructions received by the Seller from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.

3.2          Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.

3.3          Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of the Seller.

3.4          The Customer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause.

3.5          Goods are supplied by the Seller only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

 

4.              Price And Payment

4.1          At the Seller’s sole discretion the Price shall be either:

(a)  as indicated on invoices provided by the Seller to the Customer in respect of Goods supplied; or

(b)  the Seller’s quoted Price (subject to clause 4.2) which shall be binding upon the Seller provided that the Customer shall accept the Seller’s quotation in writing within thirty (30) days or the date stated on the quotation; or

(c)  the Price shall be the Seller’s current Price, at the date of delivery of the Goods, according to the Seller’s current Price list or catalogue.

4.2          The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation.

4.3          At the Seller’s sole discretion a deposit may be required.

4.4          At the Seller’s sole discretion:

(a)  payment shall be due on delivery of the Goods; or

(b)  payment shall be due before delivery of the Goods; or

(c)  payment for approved Customer’s shall be due thirty (30) days following the end of the month in which the invoice was dated.

4.5          Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.

4.6          Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and the Seller.

4.7          GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

 

5.              Delivery Of Goods

5.1          At the Seller’s sole discretion delivery of the Goods (which in most cases have been ‘drop shipped’ direct from the original supplier) shall take place when:

(a)  the Customer takes possession of the Goods at the Seller’s address; or

(b)  the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by the Seller or the Seller’s nominated carrier); or

(c)  the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.

5.2          At the Seller’s sole discretion the costs of delivery are:

(a)  included in the Price; or

(b)  in addition to the Price; or

(c)  for the Customer’s account.

5.3          The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery.

5.4          Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.

5.5          The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.

5.6          The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:

(a)  such discrepancy in quantity shall not exceed five percent (5%); and

(b)  the Price shall be adjusted pro rata to the discrepancy.

5.7          The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.

5.8          The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.

 

6.              Risk

6.1          If the Seller retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on the departure of the Goods from the Seller’s (or supplier’s) premises.  Furthermore, the Goods shall not be insured by the Seller against loss or damage while in transit, the Seller recommends the Customer ensure the Goods are insured adequately, or at all.

6.2          If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.

6.3          The Seller shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of the malfunction or misuse of the Goods.

6.4          The Customer agrees to indemnify the Seller against any loss, damage or injury to property or persons arising out of the use of the Goods. Further the Seller shall not be held responsible for any damage to the Goods caused by outside agents.

6.5          The Seller, its agents or representatives shall not be liable for any statements, advice or recommendations given to the Customer regarding the suitability of the Goods for any purpose. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising nor is the Seller bound by any such unauthorised statements.

 

7.              Title

7.1          The Seller and Customer agree that ownership of the Goods shall not pass until:

(a)  the Customer has paid the Seller all amounts owing for the particular Goods; and

(b)  the Customer has met all other obligations due by the Customer to the Seller in respect of all contracts between the Seller and the Customer.

7.2          Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s ownership or rights in respect of the Goods shall continue.

7.3          It is further agreed that:

(a)  where practicable the Goods shall be kept separate and identifiable until the Seller shall have received payment and all other obligations of the Customer are met; and

(b)  until such time as ownership of the Goods shall pass from the Seller to the Customer the Seller may give notice in writing to the Customer to return the Goods or any of them to the Seller.  Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and

(c)  the Seller shall have the right of stopping the Goods in transit whether or not delivery has been made; and

(d)  if the Customer fails to return the Goods to the Seller then the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and

(e)  the Customer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to the Seller for the Goods, on trust for the Seller; and

(f)    the Customer shall not deal with the money of the Seller in any way which may be adverse to the Seller; and

(g)  the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller; and

(h)  the Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and

(i)    until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Seller will be the owner of the end products.

 

8.              Defects

8.1          The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Customer is entitled to reject, the Seller’s liability is limited to (at the Seller’s discretion)  replacing the Goods, resupplying the Service, repairing the Goods or refunding the Purchase Price of the Goods and/or Services, except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.

 

9.              Returns

9.1          Returns will only be accepted provided that:

(a)  the Customer has complied with the provisions of clause 8.1; and

(b)  the Seller has agreed in writing to accept the return of the Goods, such agreement will be reliant on the Seller obtaining written authority from the original supplier of the Goods to similarly make a return for credit to that original supplier; and

(c)  the Goods are returned at the Customer’s cost within thirty (30) days of the delivery date; and

(d)  the Seller will not be liable for Goods which have not been stored or used in a proper manner; and

(e)  the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.

9.2          The Seller may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of ten percent (10%) of the value of the returned Goods plus any freight and additional costs incurred by the Seller in returning the Goods to the original supplier.

 

10.          Warranty

10.1       For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

 

11.          Intellectual Property

11.1       Where the Seller has designed, drawn or written Goods for the Customer, then the copyright in those designs and drawings and documents shall remain vested in the Seller, and shall only be used by the Customer at the Seller’s discretion.

11.2       The Customer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.

 

12.          Default & Consequences of Default

12.1       Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment.

12.2       If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.

12.3       Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.

12.4       If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.

12.5       Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:

(a)  any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to meet its payments as they fall due; or

(b)  the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c)  a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

 

13.          Security And Charge

13.1       Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:

(a)  where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions.  The Customer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.

(b)  should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.

(c)  the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1.

 

14.          Cancellation

14.1       The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Seller shall repay to the Customer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.

14.2       In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.

 

15.          Privacy Act 1988

15.1       The Customer and/or the Guarantor/s agree for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Seller.

15.2       The Customer and/or the Guarantor/s agree that the Seller may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:

(a)  to assess an application by Customer; and/or

(b)  to notify other credit providers of a default by the Customer; and/or

(c)  to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or

(d)  to assess the credit worthiness of Customer and/or Guarantor/s.

15.3       The Customer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

15.4       The Customer agrees that personal credit information provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Customer and Seller or required by law from time to time:

(a)  provision of Goods; and/or

(b)  marketing of Goods by the Seller, its agents or distributors in relation to the Goods; and/or

(c)  analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or

(d)  processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or

(e)  enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.

15.5       The Seller may give information about the Customer to a credit reporting agency for the following purposes:

(a)  to obtain a consumer credit report about the Customer; and/or

(b)  allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.

 

16.          General

16.1       If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

16.2       These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland.

16.3       The Seller shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these terms and conditions.

16.4       In the event of any breach of this contract by the Seller the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

16.5       The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Seller.

16.6       The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.

16.7       The Customer agrees that the Seller may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Customer of such change.

16.8       Neither party shall be liable for any default or loss suffered due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.

16.9       The failure by the Seller to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.