A good man once said our terms should be::
- buy lots of stuff
- pay for it
- be happy
But, our lawyers said we couldn't use that, and came up with the following:
“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.
“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.
“Guarantor” means that person (or persons), or entity, who agrees to be
liable for the debts of the Customer on a principal debtor basis.
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.
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).
shall mean the price payable for the Goods as agreed between the Seller and the
Customer in accordance with clause 4 of this contract.
The Commonwealth Trade Practices Act 1974
(“TPA”) and Fair Trading Acts (“FTA”)
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
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.
than one Customer has entered into this agreement, the Customers shall be
jointly and severally liable for all payments of the Price.
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
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.
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.
Price And Payment
Seller’s sole discretion the Price shall be either:
on invoices provided by the Seller to the Customer in respect of Goods
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
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.
reserves the right to change the Price in the event of a variation to the
Seller’s sole discretion a deposit may be required.
Seller’s sole discretion:
shall be due on delivery of the Goods; or
shall be due before delivery of the Goods; or
approved Customer’s shall be due thirty (30) days following the end of the
month in which the invoice was dated.
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.
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
other taxes and duties that may be applicable shall be added to the Price
except when they are expressly included in the Price.
Delivery Of Goods
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:
takes possession of the Goods at the Seller’s address; or
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);
nominated carrier takes possession of the Goods in which event the carrier
shall be deemed to be the Customer’s agent.
Seller’s sole discretion the costs of delivery are:
the Price; or
to the Price; or
for the Customer’s
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.
the Goods to a third party nominated by the Customer is deemed to be delivery
to the Customer for the purposes of this agreement.
may deliver the Goods by separate instalments. Each separate instalment shall
be invoiced and paid in accordance with the provisions in these terms and
shall take delivery of the Goods tendered notwithstanding that the quantity so
delivered shall be either greater or lesser than the quantity purchased
discrepancy in quantity shall not exceed five percent (5%); and
shall be adjusted pro rata to the discrepancy.
of the Seller to deliver shall not entitle either party to treat this contract
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.
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.
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.
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.
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.
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.
and Customer agree that ownership of the Goods shall not pass until:
has paid the Seller all amounts owing for the particular Goods; and
has met all other obligations due by the Customer to the Seller in respect of
all contracts between the Seller and the Customer.
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.
further agreed that:
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;
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
shall have the right of stopping the Goods in transit whether or not delivery
has been made; and
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
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
shall not deal with the money of the Seller in any way which may be adverse to
the Seller; and
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
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
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.
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
only be accepted provided that:
has complied with the provisions of clause 8.1; and
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
are returned at the Customer’s cost within thirty (30) days of the delivery
will not be liable for Goods which have not been stored or used in a proper
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.
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.
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.
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.
Default & Consequences of Default
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.
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.
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.
account remains overdue after thirty (30) days then an amount of twenty five percent (25.00%) of the amount overdue shall be levied for administration
fees which sum shall become immediately due and payable.
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:
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
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
manager, liquidator (provisional or otherwise) or similar person is appointed
in respect of the Customer or any asset of the Customer.
anything to the contrary contained herein or any other rights which the Seller
may have howsoever:
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.
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.
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.
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.
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.
Privacy Act 1988
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.
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:
to assess an
application by Customer; and/or
other credit providers of a default by the Customer; and/or
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
the credit worthiness of Customer and/or Guarantor/s.
consents to the Seller being given a consumer credit report to collect overdue
payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
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:
Goods by the Seller, its agents or distributors in relation to the Goods;
verifying and/or checking the Customer’s credit, payment and/or status in
relation to provision of Goods; and/or
of any payment instructions, direct debit facilities and/or credit facilities
requested by Customer; and/or
daily operation of Customer’s account and/or the collection of amounts
outstanding in the Customer’s account in relation to the Goods.
may give information about the Customer to a credit reporting agency for the
to obtain a
consumer credit report about the Customer; and/or
credit reporting agency to create or maintain a credit information file
containing information about the Customer.
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.
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.
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.
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.
may license or sub-contract all or any part of its rights and obligations
without the Customer’s consent.
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.
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.
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.