Terms and Conditions of Trade
1.1 “Seller” shall mean Associated Stocktaking Holdings Pty Ltd T/A Associated Stocktaking Services its successors and assigns or any person acting on behalf of and with the authority ofAssociated Stocktaking Holdings Pty Ltd T/A Associated Stocktaking Services.
1.2 “Client” shall mean all of the Client, the Vendor and the Purchaser (or any person acting on behalf of and with the authority of the Client, the Vendor or the Purchaser)as described on any quotation, work authorisation or other form as provided by the Seller to the Client.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Clienton a principal debtor basis.
1.4 “Services” shall mean all services supplied by the Seller to the Client and includes any advice or recommendations.
1.5 “Price” shall mean the price payable for the Services as agreed between the Seller and the Client in accordance with clause 3 of this contract.
2.1 Any instructions received by the Seller from the Client for the supply of Services and/or the Client’s acceptance of Services supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
2.2 Where more than one Client has entered into this agreement, the Clients shall be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of these terms and conditions by the Client the terms and conditions are binding and can only be amended with the written consent of the Seller.
2.4 The Client shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, facsimile number, or business practice). The Client shall be liable for any loss incurred by the Seller as a result of the Client’s failure to comply with this clause.
2.5 These terms and conditions are to be read in conjunction with the Seller’s service contract. If there are any inconsistencies between the two documents then the terms and conditions contained in this document shall prevail.
3. Price And Payment
3.1 At the Seller’s sole discretion the Price shall be as indicated on invoices provided by the Seller to the Client in respect of Services supplied.
3.2 The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation.
3.3 At the Seller’s sole discretion payment for approved Clients shall be made by instalments in accordance with the Seller’s payment schedule.
3.4 Time for payment for the Services 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 fourteen (14) days following the date of the invoice.
3.5 Payment will be made by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and the Seller.
3.6 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.
4. Delivery Of Services
4.1 At the Seller’s sole discretion delivery of the Services shall take place when the Client takes possession of the Services at the Client’s nominated address (in the event that the Services are delivered by the Seller or the Seller’s nominated carrier).
4.2 The Client shall make all arrangements necessary to take delivery of the Services whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Services as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery.
4.3 Delivery of the Services to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this agreement.
4.4 The Seller may deliver the Services by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions in these terms and conditions.
4.5 The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
4.6 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Services (or any of them) promptly or at all.
5.1 If the Seller retains ownership of the Services nonetheless, all risk for the Services passes to the Client on delivery.
6.1 The Seller and the Client agree that ownership of the Services shall not pass until:
(a) the Client has paid the Seller all amounts owing for the particular Services, and
(b) the Client has met all other obligations due by the Client to the Seller in respect of all contracts between the Seller and the Client.
6.2 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 Services shall continue.
6.3 It is further agreed that
(a) until such time as ownership of the Services shall pass from the Seller to the Client the Seller may give notice in writing to the Client to return the Services or any of them to the Seller. Upon such notice the rights of the Client to obtain ownership or any other interest in the Services shall cease.
(b) if the Client fails to return the Services 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 Client, or any premises as the invitee of the Client, where the Services are situated and take possession of the Services.
7. Client’s Disclaimer
7.1 The Client hereby disclaims any right to rescind, or cancel the contract with the Seller or to sue for damages or to claim restitution arising out of any misrepresentation made to the Client by the Seller and the Client acknowledges that the Services are bought relying solely upon the Client’s skill and judgement.
8. Errors and Omissions
8.1 The Client shall inspect the Services 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, errors, omissions or failure to comply with the description or quote. The Client shall afford the Seller an opportunity to inspect the Services within a reasonable time following delivery if the Client believes the Services are defective in any way. If the Client shall fail to comply with these provisions, the Services shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage.
8.2 For defective Services, which the Seller has agreed in writing that the Client is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Services or repairing the Services provided that the Client has complied with the provisions of clause 8.1.
9. The Australian Consumer Law (“ACL”) and Fair Trading Act 2010 (“FTA”)
9.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the ACL or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
10. Intellectual Property
10.1 Where the Seller has designed, drawn or written Goods for the Client, then the copyright in those designs and drawings and documents shall remain vested in the Seller, and shall only be used by the Client at the Seller’s discretion.
10.2 The Client 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 Client’s order and the Client agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.
11. Default & Consequences of Default
11.1 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 judgement.
11.2 If the Client defaults in payment of any invoice when due, the Client 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.
11.3 Without prejudice to any other remedies the Seller may have, if at any time the Client is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Services to the Client and any of its other obligations under the terms and conditions. The Seller will not be liable to the Client for any loss or damage the Client suffers because the Seller has exercised its rights under this clause.
11.4 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.
11.5 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 Client 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 Client will be unable to meet its payments as they fall due; or
(b) the Client 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 Client or any asset of the Client.
12. Security And Charge
12.1 Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
(a) where the Client and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Client 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 Client 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 Client 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 Client and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Client’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12.1.
13.1 The Seller may cancel any contract to which these terms and conditions apply or cancel delivery of Services at any time before the Services are delivered by giving written notice to the Client. On giving such notice the Seller shall repay to the Client any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
13.2 In the event that the Client cancels delivery of Services the Client 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.
14. Privacy Act 1988
14.1 The Client 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 Client and Guarantor/s in relation to credit provided by the Seller.
14.2 The Client and/or the Guarantor/s agree that the Seller may exchange information about the Client and the Guarantor/s with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of the Client and/or Guarantor/s.
14.3 The Client consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4 The Client 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 Client and Seller or required by law from time to time:
(a) provision of Services; and/or
(b) marketing of Services by the Seller, its agents or distributors in relation to the Services; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Services.
14.5 The Seller may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.
15. Electronic Data
15.1 The Seller shall be under no liability whatsoever to the Client for any direct or indirect loss and/or expense (including loss of profit) suffered by the Client arising out of the Seller accessing and/or manipulating the Client’s electronic data, including, but not limited to, point of sale systems and stock data files.
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 Western Australiaand are subject to the jurisdiction of the courts ofWestern Australia.
16.3 The Seller shall be under no liability whatsoever to the Client for any direct or indirect loss and/or expense (including loss of profit) suffered by the Client arising out of the Services or 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 Client shall be limited to damages which under no circumstances shall exceed the Price of the Services.
16.5 The Client shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Client by the Seller.
16.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Client’s consent.
16.7 The Seller reserves the right to 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 Client of such change.
16.8 Neither party shall be liable for any default 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.