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1. Definitions
1.1
“Seller” shall mean Clutter
Craft and its successors and assigns.
1.2
“Buyer” shall mean the Buyer or any person acting on behalf
of and with the authority of the Buyer.
1.3
“Guarantor” means that person (or persons), or entity who
agrees herein to be liable for the debts of the Buyer if a Limited
Liability Buyer on a principal debtor basis.
1.4
“Goods” shall mean Goods supplied by the Seller to the Buyer (and where
the context so permits shall include any supply of Services as hereinafter
defined).
1.5
“Services” shall mean all services supplied by the Seller to the Buyer
and includes any advice or recommendations (and where the context so permits
shall include any supply of Services as defined supra).
1.6
“Price” shall mean the cost of the Goods as agreed between the Seller and
the Buyer subject to clause 4 of this contract.
2. Acceptance
2.1
Any instructions received by the Seller from the Buyer for the supply of
Goods and/or the Buyer’s acceptance of Services and/or Goods supplied by the
Seller shall constitute acceptance of the terms and conditions contained
herein.
2.2
Where more than one Buyer has entered into this agreement, the Buyers
shall be jointly and severally liable for all payments of the
Price.
2.3
Upon acceptance of these terms and conditions by the Buyer the terms and
conditions are irrevocable and can only be rescinded in accordance with these
terms and conditions or with the written consent of the manager of the
Seller.
2.4
None of the Seller’s agents or representatives are authorised to make any
representations, statements, conditions or agreements not expressed by the
manager of the Seller in writing nor is the Seller bound by any such
unauthorised statements.
2.5
The Buyer undertakes to give the Seller not less than seven (7) days
prior written notice of any proposed change in the Buyer’s name and/or any other
change in the Buyer’s details (including but not limited to, changes in the
Buyer’s address, fa csim ile number, or business practice).
3. Goods
3.1
The Goods and/or Services are as described on the invoices, quotation,
work authorisation or any other work commencement forms as provided by the
Seller to the Buyer.
4. Price And Payment
4.1
At the Sellers sole discretion;
(a)
The Price shall be as indicated on invoices provided by the Seller to the
Buyer in respect of Goods supplied; or
(b)
The Price of the Goods shall (subject to clause 4.2) be the Sellers
quoted Price which shall be binding upon the Seller provided that the Buyer
shall accept in writing the Sellers quotation within thirty (30)
days.
4.2
Any variation from the plan of scheduled works or specifications will be
charged for on the basis of the Seller’s quotation and will be shown as
variations on the invoice. Payment for all variations must be made in full at their
time of completion.
4.3
Time for payment for the Goods/Services shall be of the essence and will
be stated on the invoice, quotation or any other order forms.
If no time is stated then payment shall be on
delivery/completion of the Goods/Service.
4.4
At the Seller’s sole discretion, for certain approved Buyers payment will
be due seven (7) days following the date of the invoice.
4.5
At the Seller’s sole discretion, payment for approved Buyers shall be due
on thirty (30) days following the end of the month in which a statement is
posted to the Buyer’s address or address for notices.
4.6
At the Seller’s sole discretion, payment for approved Buyers
shall be made by instalments in accordance with the Sellers delivery/payment
schedule.
4.7
Payment will be made by cash on delivery, or by cheque, or by bank
cheque, or by credit card, or by direct credit, or by any other method as agreed
to between the Buyer and the Seller.
4.8
The Price shall be increased by the amount of any GST and other taxes and
duties, which may be applicable, except to the extent that such taxes are
expressly included in any quotation given by the Seller.
5. Delivery Of Goods / Services
5.1
Delivery of the Goods shall be made to the Buyer’s address. The Buyer
shall make all arrangements necessary to take delivery of the Goods whenever
they are tendered for delivery, or delivery of the Goods shall be made to the
Buyer at the Sellers address.
5.2
Delivery of the Goods to a carrier, either named by the Buyer or failing
such naming to a carrier at the discretion of the Seller for the purpose of
transmission to the Buyer, is deemed to be a delivery of the Goods to the
Buyer.
5.3
The costs of carriage and any insurance which the Buyer reasonably
directs the Seller to incur shall be reimbursed by the Buyer (without any
set-off or other withholding whatever) and shall be due on the date for payment
of the Price. The carrier shall be deemed to be the Buyer’s agent.
5.4
Delivery of the Goods to a third party nominated by the Buyer is deemed
to be delivery to the Buyer for the purposes of this agreement.
5.5
The Seller may deliver the Goods by separate instalments (in accordance
with the agreed delivery schedule). Each separate instalment shall be invoiced
and paid for in accordance with the provisions in this contract of
sale.
5.6
The Buyer shall take delivery of the Goods tendered notwithstanding that
the quantity so delivered shall be either greater or less than the quantity
purchased provided that;
(a)
such discrepancy in quantity shall not exceed 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 property in the Goods nonetheless, all risk for the
Goods passes to the Buyer on delivery.
6.2
If any of the Goods are damaged or destroyed prior to property in them
passing to the Buyer, the Seller is entitled, without prejudice to any of its
other rights or remedies under these Terms and Conditions of Trade (including
the right to receive payment of the balance of the Price for the Goods), to
receive all insurance proceeds payable for the Goods. This applies whether or
not the Price has become payable under the Contract. 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.
7.
Defect/Returns
7.1
The Buyer shall inspect the Goods on delivery and shall within three (3)
days of delivery notify the Seller of any alleged defect, shortage in quantity,
damage or failure to comply with the description or quote. The Buyer shall afford the Seller an opportunity to inspect
the Goods within a reasonable time following delivery if the Buyer believes the
Goods are defective in any way. If the Buyer shall fail to comply with these provisions, the
Goods shall be conclusively presumed to be in accordance with the terms and
conditions and free from any defect or damage.
7.2
For defective Goods, which the Seller has agreed in writing that the
Buyer is entitled to reject, the Seller’s liability is limited to either (at the
Seller’s discretion) replacing the Goods or repairing the Goods provided
that:
(a)
the Buyer has complied with the provisions of clause 7.1;
(b)
the Goods are returned at the Buyers cost within seven (7) days of the
delivery date;
(c)
the Seller will not be liable for Goods which have not been stored or
used in a proper manner;
(d)
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 reasonable possible in the circumstances.
7.3
The Seller may (in its discretion) accept the Goods for
credit but this may incur a handling fee of 25% of the value of the returned
Goods plus any freight.
8. Buyers Disclaimer
8.1
The Buyer hereby disclaims any right to rescind, or cancel the contract
or to sue for damages or to claim restitution arising out of any
misrepresentation made to him by any servant or agent of the Seller and the
Buyer acknowledges that he buys the Goods relying solely upon his own skill and
judgement and that the Seller
shall not be bound by nor responsible for any term, condition, representation or
warranty other than the warranty given by the Manufacturer which warranty shall
be personal to the Buyer and shall not be transferable to any subsequent
Buyer.
9. Warranty
9.2
For Goods not manufactured by the Seller, the warranty shall be the
current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever, except
for the express conditions as detailed and stipulated in the manufacturers
warranty.
10.
The Commonwealth Trade Practices Act 1974 and Fair Trading
Acts
10.1 Nothing in this agreement is intended to have the affect of
contracting out of any applicable provisions of the Commonwealth Trade Practices
Act 1974 or the Fair Trading Acts in each of the States and Territories of
Australia, except to the extent permitted by those Acts where
applicable.
11.
Intellectual Property
11.1 Where the Seller has designed or drawn Goods for the Buyer,
then the copyright in those designs and drawings shall remain vested in the
Seller, and shall only be used by the Buyer at the Seller’s
discretion.
11.2
Conversely, in such a situation, where the Buyer has supplied drawings,
the Seller in its sale conditions may look for an indemnity (the specifications
and design of the Goods (including the copyright, design right or other
intellectual property in them) shall as between the parties be the property of
the Seller).
11.3
Where any designs or specifications have been supplied by the Buyer for
manufacture, by or to the order of the Seller then the Buyer warrants that the
use of those designs or specifications for the manufacture, processing, assembly
or supply of the Goods shall not infringe the rights of any third
party. | 
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