TERMS AND CONDITIONS OF TRADING
Unless otherwise inconsistent with the context the word “person “ shall include corporation. “Company shall mean and include Arturo Taverna International Pty Ltd. and its related companies, which is named as the party making or accepting the order. “Goods” shall include services. “Purchaser shall mean and include the person to whom any quotation is made and shall include any person offering to contract with the Company on these terms and conditions. Words importing the singular number shall be deemed to include the plural and vice versa.
2. OFFER AND ACCEPTANCE
Any quotation made by the Company is not an offer to sell and no order given in pursuance of any offer shall bind the Company until accepted by it in writing. Unless otherwise agreed in writing all orders are subject to acceptance by the Company within 30 days of receipt by the Company of the Purchaser’s order and these terms and conditions shall be deemed to be incorporated in any agreement between the Company and the Purchaser. Any term and conditions contained in any order offer acceptance or invoice of the Purchaser and all representations statements terms conditions and warranties (whether implied by statute or otherwise) not embodied herein are expressly excluded to the fullest extent of the law.
(a) Any date quoted for delivery is an estimate only and unless a guarantee shall have been given by the Company in writing providing for liquidated damages for failure to deliver by the quoted date the Company shall not be liable to the Purchaser for any loss or damage howsoever arising for failure to deliver on or before the quoted date. The Purchaser will accept and pay for goods if and when tendered notwithstanding any failure by the Company to deliver by the quoted date .
(b) The Company reserves the right to deliver by installments. If delivery is made by installments the Purchaser shall not be entitled:
(i) to terminate or cancel the contract or
(ii) to any loss or damage howsoever arising for failure by the Company to deliver any installment on or before the quoted date.
Any order may only be cancelled by mutual agreement and in the event of such cancellation the Purchaser undertakes to reimburse and idemnify the Company for any costs, expenses or charges incurred by the Company in preparation for and in the excecution of an order which without limiting the generality thereof shall include an amount equal to fifty per cent of the net profit of the order had the order not been cancelled.
No claim for shortage of delivery less than ten per cent of quantities ordered will be made by the Purchaser and in any event shall not exceed the invoice price of the goods in respect of which the claim is made. Excess delivery of up to ten percent of quantities ordered will be accepted by the Purchaser and payment made for such excess quantities.
6. DESCRIPTION AND SPECIFICATIONS
Whilst every effort is made to ensure their accuracy the descriptions illustrations and material contained in any catalogue, price list, brochures, leaflets or other descriptive matter provided by or on behalf of the Company represent the general nature of the items described therein and shall not form any part of any order or agreement or amount to any representation or warranty. The Company reserves the right to modify the design or formulation of goods without notice.
7. MINIMUM CHARGE
The Company reserves the right to increase the amount charged on any invoice up to the minimum charge as established by the Company at the date of the invoice.
Failure by the Company to insist upon strict performance of any term or condition hereof shall not be deemed a waiver thereof or of any rights the Company may have and shall not, and nor shall any express waiver be deemed to be a waiver of any subsequent breach of any term or condition.
9. GUARANTEE AND WARRANTY
(a) Except when the Purchaser is a Consumer for the purpose for the Trade Practices Act 1974. and the conditions warranties and rights implied by that Statute cannot be excluded, representations promises statements warranties and conditions (whether statutory expressed or implied) regarding any goods or services supplied by or on behalf of the Company which without limiting the generality of the foregoing shall include conditions or warranties as to quality or fitness for any particular purpose are expressly excluded. The Company shall not be liable for indirect or consequential or in respect of any claim whenever and however made for any loss damage deterioration deficiency or other fault or harm in the goods manufactured, work executed or services provided by or on behalf of or in any arrangement with the Company or occasioned to the Purchaser or any third or other party or to his or their property or interest and whether or not due to the negligence of the Company its servants or agents except in the following circumstances and subject to the following limitations:
(i) As soon as any of the facts or matters which form any part of the claim or complaint become know to the Purchaser he shall within fourteen days notify the Company in writing of the same.
(ii) The Companys’ liability shall be limited in all circumstances to the repair or replacement (at the option of the Company) of any goods manufactured by it which are returned only upon the written authority of the Company being adequately packed for transport and which are returned freight paid to the Company within the Companys guarantee period covering the goods which the Company accepts as having been defective in materials or workmanship: the rendering again of the services or the current market value of either.
(b) The Company shall not be liable in any circumstances for any:
(i) defects or damage caused in whole or in part by misuse, abuse, neglect, electrical or other overload, unsuitable lubricant, improper installation, repair, alteration or accident.
(ii) any transport installation removal labour or other cost:
(iii) goods not manufactured by it by the Company will endeavour to pass on to the Purchaser the benefit of any claim made by the Company and accepted by the manufacturer of such goods under a warranty given by that manufacturer.
(iv) technical advice or assistance given or rendered by it to the Purchaser whether or not in connection with the manufacture construction or supply of goods for or to the Purchaser.
10. FORCE MAJEURE
The due performance of any contract to variation or cancellation owing to either directly or indirectly an act of God, war, strikes, lockouts, fire, flood, tempest, drought, loss of productive capacity or key personnel, performance of suppliers or any other cause beyond the control of the Company.
11. INSOLVENCY AND DEFAULT
If – (a) The Purchaser makes default in any payment due hereunder.
(b) A resolution is passed or proposed or a petition is presented or an application filed for the winding up of the Purchaser.
(c) A Receiver or Receiver and Manager is appointed of the property or any other part of the property of the Purchaser.
(d) The Purchaser makes or proposes to make any agreement with its Creditors.
(e) The Purchaser is placed under official management.
(f) Execution is levied upon the assets of the Purchaser for an amount in excess of $1,000.00 and is not within seven days satisfied,then, and in any such event, the Company may at its option withhold further deliveries or cancel the contract without prejudice to its rights hereunder provided however that the Company may at any time and from time to time upon such terms as it may determine waive any of its rights under this Clause, but without prejudice to its right thereunder to rely upon the happening thereafter of any of the events herein before referred to or upon the continuation after any such waiver of any state of affairs the subject of such waiver.
The Purchaser hereby acknowledges that the goods supplied by the Supplier shall remain the property of the Supplier until Supplier receives payment for same. In the event of non-payment and or breach of their terms of trade the Supplier shall have the right (without notice) to retake possession of the goods supplied to the Purchaser and the Supplier or his agent are authorised by the Purchaser to enter the premises upon which the goods are housed for the purpose of retaking them and the Supplier shall not be liable for any costs, losses or damages suffered by the Purchaser as a result of retaking possession of the goods. The goods shall be at the risk of the Purchaser from the time the goods are despatched for delivery to the Purchaser.
Unless otherwise agreed in writing all goods shall be at the Purchasers risk upon delivery to the Purchaser, his carrier or agent.
Unless otherwise agreed in writing payment terms are nett cash 14 days from the date of the invoice in which the goods are delivered to the Purchaser, his carrier or agent. Should any amount owed by the Purchaser exceed these terms, interest will be payable on the overdue balance at the rate of 2 % per month or part thereof until paid in full.
Unless otherwise expressly agreed in writing the price of the goods shall be that price charged by the Company at the date of delivery including the amount which the Company is required to pay on account of an excise or sales taxes or any other taxes or charges which may be established or levied by any governmental authority (domestic or foreign) upon the goods or any part thereof, or the manufacture, use, sale of or delivery thereof.
16. TOOLING, DIES, ARTWORK, SILK SCREENS, ETC
(a) All patterns, dies, moulds, jigs, fixtures, other tooling, printing materials, artwork, silk-screens, containers, packaging and any other raw materials or components manufactured or obtained by the Company on behalf of the Purchaser shall be at the sole cost of the Purchaser.
(b) The Company shall use its best endeavours to maintain all such items in good order and condition unless the Company in its sole discretion determines that the effective working life of such items has expired in which case the Company shall notify the Purchaser accordingly. The Purchaser shall insure such items against all risks whilst in the Company’s custody.
(c) The Company shall not be responsible for any loss or damage or injury occurring to such items unless such loss damage or injury has been occasioned by the negligence of the Company, its servants or agents. Any claim for such loss, damage or injury shall not exceed the cost of restoring them to good order or condition or replacing them, whichever may be the less expensive.
(d) The Company may dispose of such items as it sees fit after the expiration of three months written notice given to the Purchaser of its intention to dispose if during such period the Purchaser fails to claim possession of them.
(e) The Company shall not be responsible for any loss damage or injury occurring to any or all of such items supplied by the Purchaser unless such loss damage or injury has been occasioned by the negligence of the Company, its servants or agents. Any claim for any such loss damage or injury shall not exceed the cost of restoring them to good order or condition or replacing them, whichever may be the less expensive. The Purchaser shall insure such items against all risks whilst in the Company’s custody. The Company shall return such items to the Purchaser on completion of the contract or as otherwise directed by the Purchaser.
(f) The Purchaser shall not be entitled to claim possession of any item under paragraphs (d) or (e) above until payment in full of the price of all goods sold by the Company in relation to such items and in addition to any right of line to which the Company may by law be entitled the Company shall be entitled to a general lien on all such terms in the Company’s possession for the unpaid price of any goods sold by the Company under this or any other contract and any monies owing by the Purchaser in relation to such items.
17. FREIGHT/DELIVERY CHARGES
Unless otherwise agreed in writing all costs and charges related to freight and delivery of goods are the responsibility of, and payable by the Purchaser.
The Company undertakes to retain confidential information supplied to it in the form of trade secrets, formulae, product knowledge, manufacturing processes and any other confidential information supplied by the Purchaser or its agent(s). Notwithstanding the above, the Company shall not be liable for any loss or damage whatsoever and howsoever arising whether direct, indirect or consequential or in respect of the disclosure, accidental or otherwise, of such information.