CONDITIONS OF SALE
1. Payment of Charge Accounts must be by the end of the month following purchase unless otherwise stated on our invoice. Payments are to be by cash, cheque or Electronic Funds Transfer and without deduction unless otherwise agreed. Credit Cards will not be accepted for account payments.
2. A settlement discount, if applicable, will be shown on our statement and only this amount may be deducted provided the payment reaches us by the date stated.
3.1 If the Customer fails to make full payment by the Due Date, interest will be charged at a rate which is 10% per annum calculated on daily balances on monies owed by the Customer to the Supplier both before and (as a separate and independent obligation) after any judgment until paid in full.
3.2 The Customer will pay the Supplier for any and all of the Supplier’s expenses including but not limited to any legal costs on an indemnity basis, stamp duties and other expenses payable under these terms and conditions together with any collection costs or dishonoured cheque fees incurred in connection with the enforcement of, or the preservation of any rights under these terms and conditions. Such costs, duties and other expenses as well as interest payable pursuant to clause 3.1 may be recovered as a liquidated debt.
4. Goods bought in for a cash sale customer against an order will require full payment at point of sale.
5. Returns will only be accepted with proof of purchase.
6. 30 Days limitation on all credits. Credits will not be issued for Goods returned unless Invoice Number is quoted.
7. Any claims for credits, including but not limited to claims for nondelivery or defectiveness of the Goods, must be made in writing to Swan within 14 days of date of invoice, otherwise the Customer is deemed to have accepted the Goods and liability for the Goods.
8. No credits will be issued for Goods made or cut to order. (a) A special order will only be warehoused for 14 days after which it may be returned or sold. (b) Goods bought in for Account Customers against order will only be credited if the original supplier will accept same for credit, less a handling charge.
9. All stocked items will incur a 15% restocking charge if returned after 14 days. (a) All special orders will incur a 20% restocking charge provided the manufacturer will accept the return. (b) Cash sale Goods returned. A minimum surcharge of 15% will apply on all Goods returned for credit.
10. Cartage will be charged on all deliveries, All Goods will be delivered to the designated site. If a customer requests assistance to move Goods inside any structure or building on site, no responsibility will be borne for any consequential loss or damage.
11. All Goods sold are subject to the applicable manufacturers warranty, guarantee and trading terms (if any). Other than any manufacturer’s warranty or guarantee, Swan provides no warranty or guarantee with any Goods sold. The Customer acknowledges and agrees that any warranty or guarantee claims must be made against the manufacturer of the Goods.
12. All prices are subject to market fluctuation and prices charged will be those ruling at date of delivery.
13. I/We agree to notify Swan Hardware & Staff Pty. Ltd. in writing of any change in the legal status of the account Trading Name.
14. I/We acknowledge that in this application:
(a) (i) ‘the Customer" means the individual/s, company, or firm named as such on the face of this document, or on any other document between Swan Hardware and Staff Pty. Ltd. (“Swan”) and the Customer and includes such party’s successors transferees and assigns; and
(ii) "The Goods" means any Goods and/or materials the particulars of which are specified on this document or any other document in terms of which Goods are supplied by Swan to the Customer;
(iii)the singular number shall include the plural and vice-versa;
(iv) words importing any gender shall include the other gender; and
(v) "person" shall include corporation, company, society, partnership and firm.
(b) Notwithstanding anything contained elsewhere in this application, the Customer accepts, upon delivery of the Goods, all risk for loss or damage to the Goods whether caused by the Customer or not, and further indemnifies Swan against all claims, demands, suits and actions for loss or damage caused by or arising from the handling, transport, storage, display or use of the Goods after the Customer has taken possession of the Goods.
(c) Ownership, property and title in and to the Goods shall only be transferred to the Customer when payment in full has been made by the Customer to Swan for all sums owing to Swan whether under this agreement or any other contract, agreement or arrangement and until such payment is made Swan has the right to call for and the Customer is under an obligation to deliver up the Goods to Swan forthwith upon such demand.
(d) No documentation affixed to or referring to the Goods shall be removed from the Goods and/or destroyed by the Customer until such time as title to the Goods has passed to the Customer under the terms of this application.
(e) Notwithstanding any other agreement, monies owing in respect of the Goods shall become immediately due and payable:
(i) upon a bankruptcy petition or winding up application as the case may be in respect of the Customer (whether voluntary or otherwise) being presented to a Court;
(ii) a receiver, a trustee in bankruptcy, a liquidator, a provisional liquidator, an administrator or other like person is appointed over the Customer or a mortgagee or an agent for a mortgagee is appointed pursuant to any security interest or Court order.
(iii) upon breach of this Agreement.
(f) Until the Goods have been paid for in full the Customer shall store the Goods in a manner which clearly indicates the ownership of Swan and shall hold the Goods in a fiduciary capacity as bailee for Swan.
(g) Where the Goods have not been paid for in full the Customer may only onsell the Goods to a third party in the ordinary course of business of the Customer and the condition that:
(i) where the purchaser does not immediately pay for the Goods, the purchaser is given written notice of Swan’s interest in the Goods and the existence and operation of this retention of title clause; or
(ii) where the Customer is paid by the purchaser, the Customer holds the whole of the proceeds of sale on trust for Swan and such proceeds are to be held in a separate bank account;
(iii) the Customer keeps proper records of the sale of the Goods; and
(iv) where the Customer is not paid by the purchaser, the Customer shall assign its claim against the purchaser to Swan upon Swan so requesting, which request is solely within Swan’s discretion.
(h) For the purpose of giving effect to and perfecting the agreement specified in paragraph (g)(ii), the Customer hereby irrevocably appoints Swan as its Attorney.
(i) If payment of any monies is overdue in whole or in part, Swan may recover and/or resell all or any of the Goods.
(j) If payment of any monies is overdue in whole or in part and the Customer has affixed the Goods to any other Goods or property, has mixed the Goods with any other Goods or property, or has incorporated the Goods into any other Goods or property in breach of clause (f), Swan may retrieve the Goods provided the retrieval does not damage other Goods and/or property to which the Goods have been affixed or mixed, and the Customer shall thereafter continue to be liable to Swan for such part or balance of the indebtedness of the Customer to Swan after deducting the realisable value (to be determined at the sole and absolute discretion of Swan) of the Goods so retrieved.
(k) For the purposes of clauses (i) and (j). Swan is hereby authorised to enter any premises occupied by the Customer and the Customer indemnifies Swan against any loss claims or damages in connection with the retaking of possession of the Goods provided that Swan (including its servants and agents) act/s with reasonable care and caution and commit/s no act/s of trespass in so retaking possession of the Goods and do not willfully damage any other Goods or property not belonging to Swan and do not willingly breach or induce any breach of any other legal rights vested in any other person associated with such premises entered upon or Goods and/or property so dealt with.
(l) If one or more provisions (or part thereof) of these terms is/are or become/s void, voidable or unenforceable for any reason whatsoever all other provisions (or parts thereof) shall remain in full force and effect.
(m) All claims to be lodged within 7 days of receipt of Goods.
15. The Customer irrevocably agrees and acknowledges that a statement in writing signed by an authorised person in the credit department of Swan stating the account or any amount due or owing by the Customer to Swan or any other act, matter or thing arising under this Application as at any date or dates set out in that statement, will be sufficient and conclusive evidence of these matters and the fact so stated.
16. If there is any default by the Customer in making due payment to the Supplier of any monies owing by the Customer, or if an administrator, liquidator or provisional liquidator, receiver and manager or controller is appointed in respect of the Customer, or if the Customer goes into bankruptcy or commits any act of bankruptcy, or if there is a breach by the Customer of any of these terms and conditions then:
16.1 All monies payable by the Customer to the Supplier shall at the Supplier’s election become immediately due and payable notwithstanding that the due date for payment of any of the monies shall not have expired;
16.2 The Supplier may suspend any further supply to the Customer; and/or 16.3 The Supplier may terminate this Agreement forthwith and without notice.
17. In the event that the whole or any part or parts of any clause in this Agreement is found to be unenforceable by a Court then such clause or part thereof shall be to that extent severed from these terms and conditions without effect to the validity and enforceability of the remainder of these terms and conditions.
18. These terms and conditions and all contracts entered into between the Customer and the Supplier shall be governed by and construed in accordance with the laws of the State of Victoria, notwithstanding the place in which goods and/or services are delivered. The parties submit to the exclusive jurisdiction of the Courts or Tribunals of the State of Victoria and agree that proceedings may be commenced in any Court or Tribunal in the State of Victoria and consent to that Court or Tribunal having jurisdiction by virtue of this clause notwithstanding that the Court or Tribunal would not otherwise have such jurisdiction.
19. Notice required to be given by the Customer to the Supplier pursuant to these terms and conditions must be delivered personally or sent by registered post to the credit manager of the Supplier and unless the contrary is proved shall be taken as delivered when received by the Supplier. Notice to be given to the Customer by the Supplier may be delivered personally, by facsimile or e-mail transmission or sent by post to the Customer’s last known address and shall be taken as delivered on the second business day following posting.
20.1 To secure payment of all monies which are or may become payable by the Customer to the Supplier under this Agreement the Customer (or where the Customer is comprised of two (2) or more persons then each person jointly and/or severally) hereby charges with the due payment of all of those monies all of the Customer’s right, title and interest in all and any real property wherever located both present and future and the Customer consents to the Supplier lodging a caveat or caveats over such property to protect the Supplier’s interest.
20.2 Upon demand by the Supplier, the Customer agrees to immediately execute a mortgage or other instrument in terms satisfactory to the Supplier to further secure the Customer’s indebtedness to the Supplier.
20.3 Should the Customer fail within a reasonable time of such demand to execute such mortgage or other instrument then the Customer appoints irrevocably the credit manager or a duly authorised officer of the Supplier to be the Customer’s lawful attorney to execute any such mortgage or other instrument.
21. Acceptance of Goods is acceptance of above terms. No other conditions as implied by Customers order, etc. will be considered unless accepted in writing by Swan.
Dated 23 October 2014