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TERMS OF TRADE
Last Revised 15th June 2012
Unless the context otherwise requires, the following words have these meanings: Wholesale SuperStore means Wholesale Racking Australia Pty Ltd ACN 121 224 940 its successors and assigns (and which may trade as “Wholesale SuperStore”); Contract means the Terms of Trade and the relevant Order (together they comprise the ‘Contract’); Credit Application means a written credit application with Wholesale SuperStore for the provision of credit by Wholesale SuperStore to the purchaser; Goods means the goods and/or services referred to in the Order; GST means the goods and services tax payable pursuant to the GST Act; GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cwlth); Invoice means a Tax Invoice if GST applies to the items in the invoice, otherwise a non-Tax Invoice; Order means any agreement (verbal and/or written) between Wholesale SuperStore and the purchaser for the supply of the Goods. Unless otherwise specified by Wholesale SuperStore , an Order has no set form and could be comprised of an email/emails, order by phone or fax or a combination of same; purchaser means: if the purchaser has signed or provided Wholesale SuperStore with a Credit Application, the purchaser specified in the Credit Application; or if the purchaser has not signed or provided Wholesale SuperStore with a Credit Application, the purchaser specified in the Order; Tax Invoice means an invoice that complies with the GST Act; Terms of Trade means these terms of trade (as may be varied from time to time).
Unless the context otherwise requires: headings, boldings and underlines are for convenience only and do not affect the interpretation of the Contract; words importing the singular include the plural and vice versa; reference to a ‘person’ includes a company, partnership, joint venture, association, trust, corporation and vice-versa; reference to any statute or regulation includes all statutes and regulations varying, consolidating or replacing them; reference to a statute includes all regulations, proclamations, ordinances and by-laws issued after that statute; no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of the Contract or any part of it; the words “includes”, “including”, “for example” or “ such as” or similar expressions are not words of limitation; all references to “$” or “dollars” are to the lawful currency of Australia; a covenant, an agreement or acknowledgment on the part of, or in favour of, two or more persons, binds them or enures to their benefit jointly and severally.
The purchaser must promptly provide all instruction, information and documentation reasonably requested by Wholesale SuperStore relating to the supply of the Goods. Wholesale SuperStore is not liable to the purchaser for any loss or damage of any kind suffered by the purchaser as a result of any failure or delay by the purchaser in respect of the foregoing and Wholesale SuperStore shall be entitled to a reasonable extension of any timeframe applicable to its obligations as a result of such failure or delay.
Quotation, Orders and Acceptance
A quotation by Wholesale SuperStore shall be an invitation to the purchaser to trade with Wholesale SuperStore. It shall not constitute an offer by Wholesale SuperStore to the purchaser. The purchaser may use the quotation to submit an Order to Wholesale SuperStore. Prices given in any quotation are applicable to that quotation only and will not apply in any other instance, unless confirmed in writing by Wholesale SuperStore. Quotations are valid for the period specified in the quotation or, if no period is specified, 7 days from the date of issue. If the purchaser is given a quote and instructs Wholesale SuperStore to proceed, the purchaser is taken to have submitted an Order to Wholesale SuperStore on the terms of the quote. Wholesale SuperStore is not obliged to accept any Order. The Contract shall only be or be deemed to have been entered into between Wholesale SuperStore and the purchaser for the supply of the Goods when the Order has been accepted by Wholesale SuperStore (which may be done in writing, verbally or by Wholesale SuperStore commencing to fulfil the Order). Any quotation containing a provision to supply Goods "ex stock" is subject to fulfilment of prior orders (whether to the purchaser or third parties) at the date of receipt of the purchaser's Order.
Delivery and Delivery Fee
Wholesale SuperStore will provide the Goods to the purchaser within 1 to 7 working days after payment in cleared funds (and in the case of payment by credit card within 1 to 7 working days after authorisation of payment) where the Goods are in stock at the time the order is placed. In all other cases although Wholesale SuperStore will use reasonable endeavours to provide the Goods by the due date, this time is not of the essence. Wholesale SuperStore are not liable to the purchaser for any loss or damage of any kind suffered by the purchaser arising out of any failure by Wholesale SuperStore to provide the Goods on or by the agreed or specified date or within a reasonable time including loss or damage due to the negligence of Wholesale SuperStore. Without limiting the foregoing, should supply of the Goods be prevented, delayed or hindered directly or indirectly beyond the date advised by Wholesale SuperStore when the order was accepted the purchaser will be notified of the delay and given the option of canceling the Order and obtaining a refund. If the purchaser does not elect to do so in writing then, at Wholesale SuperStore option, either the delivery time shall be extended until the effect of the delaying cause has ceased or Wholesale SuperStore may cancel the Contract. Wholesale SuperStore are not liable for any loss or damage of any kind suffered by the purchaser for the resultant delay or cancellation of the Contract. Unless otherwise agreed in writing, Wholesale SuperStore is entitled to supply the Goods in one or more lots. Where there is a part provision, Wholesale SuperStore may Invoice the purchaser for pro-rata progress payments in respect thereof (with the pro-rata amount as determined by Wholesale SuperStore). Once the Goods are available for delivery, Wholesale SuperStore is entitled to issue an Invoice for the Goods (even if the purchaser delays delivery or collection as the case may be). Wholesale SuperStore reserve the right to charge the purchaser for the delivery costs (including transportation, insurance, port, customs and other charges, taxes, levies or duties related to delivering the Goods to the relevant delivery address) in addition to any other amounts payable.
Payment, GST and Merchant Fees
Unless otherwise agreed in writing, all payments are due before dispatch. Where Goods are manufactured to order or delivery is to be delayed at the request of the purchaser a 50% deposit is payable at the time of order and the balance is payable on the date on which the relevant Invoice is given to the purchaser. Without limiting any other rights or remedies, if the purchaser fails to make payment by the due date, Wholesale SuperStore may cease to provide or limit the amount of credit available to the purchaser. Unless otherwise stated, all amounts are expressed to be exclusive of GST. The purchaser must pay any applicable GST to Wholesale SuperStore in addition to the amount payable at the same time as the amount to which it relates is payable. If any payment is made by credit card, the purchaser agrees Wholesale SuperStore may also charge and deduct from the credit card any merchant fees that apply.
The purchaser indemnifies Wholesale SuperStore against any loss, cost, damage or expense (including legal costs and disbursements on a full indemnity basis and any debt collection agency fees on a full indemnity basis), and any claims, demands, suits, actions and proceedings suffered, paid, incurred, instituted or defended by Wholesale SuperStore, resulting from or arising out of any breach of the Contract by the purchaser.
Suspension and Termination
If the purchaser defaults or fails or delays in performing its obligations then in addition to and without prejudice to any other rights or remedies of Wholesale SuperStore (including exercising a right of termination after suspension), Wholesale SuperStore may suspend the performance of its obligations until such breach is rectified without being liable to the purchaser for any loss or damage of any kind suffered by the purchaser as a result of such suspension. Wholesale SuperStore shall be entitled to a reasonable extension of any timeframe applicable to its obligations as a result of such suspension. If the other party: (i) has a receiver, receiver and manager, administrator, liquidator, provisional liquidator or external controller appointed to it; (ii) becomes bankrupt, insolvent or is wound-up; (iii) has a resolution passed for its winding-up, commits an act of insolvency or bankruptcy; (iv) enters into any scheme or arrangement with its creditors; (v) breaches an essential term of the Contract; (vi) breaches a term of the Contract that is not capable of remedy; or (vii) subject to the foregoing, breaches a term of the Contract that is capable of remedy but is not so remedied within 14 days of written demand, then the other party by written notice may terminate the Contract immediately. Termination shall not affect any provision of the Contract expressed or capable of operating or having effect subsequent to termination and shall be without prejudice to any accrued right or remedy of a party in relation to any breach of or default by the other party occurring prior to termination.
Cancellation by Wholesale SuperStore
Wholesale SuperStore may cancel a Contract at any time before the Goods are supplied to the purchaser by notice to the purchaser in which case Wholesale SuperStore shall repay any sums paid by the purchaser in advance to Wholesale SuperStore in respect of the relevant Goods.
Risk and Title
Risk in respect of loss, damage or destruction of the Goods passes to the purchaser upon delivery. Despite the passing of risk, Wholesale SuperStore retains full title to the Goods until such time as all payments due by the purchaser under the relevant Contract are received by Wholesale SuperStore. Wholesale SuperStore reserves the right in the event of non-payment of any amounts due by the purchaser under the relevant Contract to retrieve the Goods from the purchaser including by entering any premises where the Goods are stored and the purchaser agrees Wholesale SuperStore are not liable for trespass as a result or for any damage caused in removing the Goods from the premises. If it is or becomes necessary to register this clause or the Contract in order to give effect to the retention of title created by this clause, the purchaser agrees to promptly sign such reasonable documentation and promptly perform all reasonable acts necessary in order to enable Wholesale SuperStore to register this clause or the Contract.
Returns and Fees
Except where required by law, Wholesale SuperStore are not obliged to accept a return of Goods because the purchaser changes their mind or wishes to cancel an Order. If Wholesale SuperStore does accept a return because the purchaser changes their mind or where Wholesale SuperStore allows a purchaser to cancel an Order, a restocking fee of up to 35% of the price paid or payable for the Goods as determined by Wholesale SuperStore in its absolute discretion is payable by the purchaser. The purchaser is responsible for all freight costs in relation to returning Goods to Wholesale SuperStore or delivering replacement Goods under warranty, except in the case where the purchaser received the item damaged or DOA.
Limitation of Liability
To the fullest extent permitted by law: (i) Wholesale SuperStore shall not be liable to the purchaser for any consequential, special, incidental or other indirect loss or damage including loss of profit, loss of opportunity, business, revenue, goodwill or anticipated savings arising out of the performance, non-performance or defective performance of the obligations of Wholesale SuperStore irrespective of whether or not Wholesale SuperStore was made aware of the possibility of such loss; (ii) all express and implied warranties, terms and conditions in relation to the obligations of Wholesale SuperStore including those implied by use, trade, custom or otherwise are hereby excluded; (iii) subject to the foregoing, Wholesale SuperStore total liability to the purchaser for breach of its obligations to the purchaser (including due to negligence) are at the option of Wholesale SuperStore limited to, in the case of the ‘goods’ component of the Goods, replacing or resupplying the goods or paying for the cost of replacing or resupplying the goods, and in the case of the ‘services’ component of the Goods, supplying the services again or paying for the cost of having the services supplied again; (iv) any warranty given under these terms or implied by law shall be void if the Goods (or any other materials supplied by Wholesale SuperStore to the purchaser forming part of the Order) are modified or altered in any way by the purchaser (or any other person) following delivery of the Goods to the purchaser without the prior written consent of Wholesale SuperStore. The purchaser agrees to indemnify Wholesale SuperStore against any loss, cost, damage or expense (including legal costs and disbursements on a full indemnity basis) and any claims, demands, suits, actions and proceedings (including claims for personal injury compensation) suffered, paid, incurred, instituted or defended by Wholesale SuperStore, resulting from or as a consequence of the unauthorised modification or alteration of the Goods (or any other materials supplied by Wholesale SuperStore to the purchaser forming part of the Order).
Application of Terms of Trade and Authority to Contract
The Terms of Trade shall apply to every Order between Wholesale SuperStore and the purchaser for the supply of Goods (even if not attached or referred to in an Order). Each Contract is a combination of these Terms of Trade and the relevant Order and each such Contract constitutes a separate and independent agreement. Any action taken in respect one Contract does not automatically affect any or all other Contracts. The purchaser agrees Wholesale SuperStore is entitled to assume that anyone on behalf of the purchaser (including its employees) who places an Order with Wholesale SuperStore has full power and authority to bind the purchaser irrespective of whether or not such person followed the purchaser internal procedures before placing the Order and the purchaser agrees to be bound by the acts or omissions of such persons.
Inconsistency and Variation
Wholesale SuperStore may vary the Terms of Trade from time to time, in which case those new terms of trade shall apply to every new Order after the purchaser is notified in writing of the new terms of trade. Subject to the foregoing and any other provision of the Terms of Trade, any variation, amendment or consent to departure by any party from the Contract shall have no force or effect unless agreed in writing by Wholesale SuperStore. If there is any inconsistency between the Terms of Trade and the Order, the terms of the Order prevail to the extent of the inconsistency. Any terms or conditions put forward by the purchaser in respect of the Goods are null and void and of no effect unless accepted by Wholesale SuperStore in writing. If the purchaser wishes to vary the Contract (which Wholesale SuperStore can accept or reject in its sole discretion), Wholesale SuperStore reserves the right to vary the Contract to take account of such changes and in that case Wholesale SuperStore is entitled to suspend the supply of the Goods until the purchaser approves of the variations in writing.
Change in Owner
The purchaser agrees to promptly notify Wholesale SuperStore in writing of any change in ownership of the purchaser’s business and agrees that it shall continue to be liable to Wholesale SuperStore for any sums due or payable in respect of the account opened on behalf of the purchaser prior to such written notice being received. This includes any Contracts entered into before such notice is received.
Privacy and information
Wholesale SuperStore may collect use and disclose the purchaser’s information but only in the necessary fulfilment of the Order and to forward to the purchaser from time to time marketing material. The purchaser agrees Wholesale SuperStore may send the purchaser letters and other communications from time to time with information about Wholesale SuperStore products. The Purchaser acknowledges that information regarding the purchaser and this transaction will be managed by Wholesale SuperStore Database System. The purchaser has right to access any of its information that Wholesale SuperStore holds about it and should the purchaser wish to do so, a written request for access should be made to Wholesale SuperStores’ Privacy Officer.
In the Contract: the Contract shall be governed by and construed in accordance with the laws of the State of New South Wales, Australia; any legal action or proceedings with respect to the Contract against any party or any of its property and assets may be brought in the Courts of the State of New South Wales, Australia and each party accepts, for itself and in respect of its property and assets, generally and unconditionally the jurisdiction of the Courts of that State; subject to the express written terms of the Contract, the Contract shall confer rights and benefits only upon a person expressed to be a party and not upon any other person; the purchaser shall not transfer, sub-contract or assign its rights or obligations under the Contract without the prior consent in writing of Wholesale SuperStore; Wholesale SuperStore may sub-contract or assign its rights or obligations under the Contract at anytime; the failure to exercise or delay in exercising by any party of any right conferred by the Contract shall not operate as a waiver and the single or partial exercise of any right by that party shall not preclude any other or further exercise of that or any other right by that party; subject to the terms of the Contract, the rights of a party conferred by the Contract are cumulative and are not exclusive of any rights provided by law; each party shall execute all documents and perform all acts necessary to give full effect to the Contract; apart from the Credit Application, the Contract expresses and incorporates the entire agreement between the parties in relation to its subject matter, and all the terms of that agreement, and supersedes and excludes any prior or collateral negotiation, understanding, communication, agreement, representation or warranty by or between the parties in relation to that subject matter or any term of that agreement. Neither party shall, after the Contract has been entered into, be entitled, as against the other party or other officers of any party, to bring suit on the basis of any verbal or written communications, representations, inducements, undertakings, agreements or arrangements except expressly as provided by the Contract or the Credit Application; any provision of the Contract which is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of that prohibition or unenforceability, without invalidating the remaining provisions of the Contract or affecting the validity or enforceability of that provision in any other jurisdiction; no provision of the Contract shall merge on completion of the Contract; if by reason of any fact, circumstance, matter or thing beyond the reasonable control of Wholesale SuperStore, Wholesale SuperStore is unable to perform in whole or in part any obligation under a Contract, Wholesale SuperStore shall be relieved of that obligation to the extent and for the period that it is so unable to perform and are not liable to the purchaser for any loss or damage of any kind suffered by the purchaser arising out of such inability to perform.