Terms & Conditions of Trade for Label Press (Qld) Pty Ltd
as applicable under the Sale of Goods Act 1896 (Qld)
1.1 “Seller” shall mean Label Press (Qld) Pty Ltd and permitted successors and assigns.
1.2 “Buyer” shall mean the buyer, agent, legal entity or any person who buys or agrees to buy goods.
1.3 “Guarantor” means a 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, as per the Credit Application.
1.4 “Goods” shall mean existing, future goods or specific goods supplied by the Seller to the Buyer and which forms the subject of the sale.
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 purchase price of the Goods as agreed between the Seller and the Buyer subject to Section 4 of these Terms & Conditions of Trade.
1.7 “Terms & Conditions of Trade” shall mean the contract of sale or agreement of sale created upon Acceptance to supply goods or services from the Seller to the Buyer.
2.1 It is the duty of the Seller to deliver the Goods and the duty of the Buyer to accept and pay for the Goods in accordance with the Terms & Conditions of Trade and contract of sale or agreement of sale created upon Acceptance.
2.2 Any dispute arising from these Terms & Conditions of Trade not expressed herein and supra, the rules for ascertaining intention from Section 21 of the Sale of Goods Act 1896 (Qld) will apply.
2.3 If any provision of these Terms & Conditions of Trade shall be invalid, void or illegal or unenforceable, the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
2.4 All Services/Goods supplied by the Seller are subject to the laws of Queensland and the Seller takes no responsibility for changes in the law which affect the Services/Goods supplied.
2.5 The Buyer shall not set off against the Price amounts due from the Seller.
2.6 The Seller may license or sub-contract all or any part of its rights and obligations without the Buyer’s consent.
2.7 The Seller reserves the right to review these Terms & Conditions of Trade at any time.
2.8 Neither party shall be liable for any failure for specific performance due to any act of God, war, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
3.1 Acceptance of these Terms & Conditions of Trade will form a contract of sale of goods or agreement of sale whereby the seller transfers, or agrees to transfer the Goods to the Buyer for a money consideration, called the Price.
3.2 Acceptance will be deemed to have been performed where instructions have been made to the Seller from the Buyer either in writing, by word of mouth, or partly in writing and partly by word of mouth, or may be implied from the conduct of the parties.
3.3 Upon Acceptance of these Terms & Conditions of Trade by the Buyer, the terms and conditions are irrevocable and can only be rescinded in accordance with these Terms & Conditions of Trade or with the written consent of the General Manager of the Seller.
3.4 None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the General Manager of the Seller in writing, nor is the Seller bound by any such unauthorised statements, representations, conditions or agreements.
4.1 The Goods shall be as described on the invoice, quotation, work order, sales order or any other work commencement forms as provided by the Seller to the Buyer and shall include existing goods or future goods.
4.2 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 10%, and
(b) the Price shall be adjusted pro rata to the discrepancy.
5.1 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 be the Seller’s Price, which shall be binding upon the Seller provided that the Buyer shall accept in writing the Seller’s quotation within fourteen (14) days; or
(c) The Price shall be the Seller’s current Price at the date of delivery or date the goods are deemed to be in a deliverable state (whichever comes first) of the Goods according to the Sellers current Price list.
5.2 The Seller may, by giving notice to the Buyer, at any time up to seventy-two (72) hours before delivery, increase the Price of the Goods to reflect any increase in the cost to the Seller beyond the reasonable control of the Seller.
5.3 At the Sellers sole discretion, a partial payment of a percentage of the total Price may be required prior to the supply of any Goods or Services. The partial payment amount will be stipulated in the quotation, and will become immediately due and payable upon acceptance of the quotation or placement of an order for the supply of Goods or Services.
5.4 Time is of the essence, thus payment of the Goods / Services will be clearly stated on the invoice, quotation and any other order forms. If no time is stated, then payment shall be on delivery of the Goods / Services.
5.5 The Seller may withhold delivery of the Goods / Services until the Buyer has paid for them in full, in which event payment shall be made prior to delivery.
5.6 At the Sellers sole discretion, for certain approved Buyers only, payment will be due either seven (7) or thirty (30) days following the date of the invoice.
5.7 Payment will be made either by cash on delivery, or by cheque, or by bank cheque or by credit card, or by EFT or by any other method as agreed to between the Buyer and the Seller.
5.8 The Price shall be increased by the amount of any GST (at the current rate) and other taxes and duties which may be applicable, in accordance with Australian taxation laws.
6.1 When, in pursuance of a contract of sale, the Seller is authorised or required to send the goods to the Buyer, delivery of the goods to a carrier, whether named by the Buyer or not, for the purpose of transmission to the Buyer, is prima facie deemed to be a delivery of the goods to the buyer.
6.2 Whether it is for the Buyer to take possession of the goods or for the Seller to send them to the Buyer is a question depending in each case, express or implied, between the parties.
6.3 If Delivery of the Goods shall be made to the Buyer’s nominated address. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery
6.4 Failing any such arrangement, the place of delivery is at the Sellers place of business.
6.5 Unless otherwise agreed, the expenses of and incidental to putting the goods into a deliverable state must be borne by the Seller.
6.6 Delivery does not affect the operation of the issue or transfer of any document of title to Goods.
6.7 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.
6.8 When the Seller is ready and willing to deliver the Goods, and requests the Buyer to take delivery, and the Buyer does not within a reasonable time after such request take delivery of the Goods, the Buyer is liable to the Seller for any loss occasioned by the Buyers neglect or refusal to take delivery, and also for a reasonable charge for the care and custody of the Goods.
7.1 Risk prima facie passes with property.
7.2 The Goods remain at the Sellers risk until the property therein is transferred to the buyer, but when the property therein is transferred to the Buyer, the Goods are at the Buyers risk whether delivery has been made or not.
7.3 When delivery has been delayed through the fault of the Buyer, the goods are deemed herein to be at the risk of the Buyer, and will be responsible for any loss which might not have occurred but for such fault.
7.4 In the context of repair/servicing of goods only where the Seller is acting as a Bailee to the Buyer, the risk will be passed to the Seller when the Goods to be repaired or serviced by the Seller are in the Sellers possession, excluding during transport.
7.5 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 & Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable in respect of the Goods. This applies whether or not the Price has become payable under these Terms & Conditions of Trade. The production of these Terms & Conditions of Trade 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. The Seller will apply the insurance proceeds as follows:
(i) first, in payment of the Price of the Goods that are damaged or destroyed, if unpaid;
(ii) second, in payment of the outstanding Price of any other Goods supplied to the Buyer by the Seller whether under the Terms & Conditions of Trade or otherwise;
(iii) third, in payment of any other sums payable to the Seller by the Buyer on any account;
(iv) fourth, any balance is to be paid to the Buyer.
8.1 The Buyer shall inspect the Goods on delivery and shall within seven (7) 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 shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the Terms & Conditions of Trade and free from any defect or damage.
9.1 For defective Goods which the Seller has agreed in writing that the Buyer is entitled to reject, the Seller’s liability is limited to replacing the Goods provided that:
(a) the Buyer has complied with the provisions of clause 7.1;
(b) the Goods are returned within seven (7) days of the delivery date;
(c) the Goods are returned in the condition in which they were delivered;
(d) the Goods are returned to the Seller at the Buyers cost;
(e) the Seller will not be liable for Goods which have not been stored or used in a proper manner.
10.1 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 manufacturer’s warranty.
10.2 The Seller does not undertake that repair facilities and parts will be available for the Goods and will not be liable to repair any defective Goods and at its own discretion may:
(a) notify the manufacturers of the Goods of any defect notified by the Buyer; and
(b) request the manufacturers to repair or replace any defective Goods.
10.3 In the case of second hand Goods the Buyer acknowledges that he has had full opportunity to inspect the same and that he accepts the same with all faults and that no warranty is given by the Seller as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Seller shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.
11.1 In the event of any breach of these Terms & Conditions of Trade by the Seller the remedies of the Buyer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Services and or Goods.
11.2 The Seller shall be under no liability whatever to the Buyer for any indirect loss, pure economic loss, potential future loss (including loss of profit) suffered by the Buyer arising out of a breach by the Seller of these Terms & Conditions of Trade.
12.1 No clause in this agreement is intended to have the effect of contracting out of any applicable provisions of Schedule 2 of the Competition and Consumer Act 2010 (Cth), the Fair Trading Act 1989 (Qld) or the Sale of Goods Act 1896 (Qld, except to the extent permitted by those Acts, where applicable.
13.1 When any right, duty, or liability would arise under a contract of sale by implication of law, it may be negatived or varied by express agreement or by the course of dealing between the parties, or by usage, if the usage is such as to bind both parties to the contract.
14.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at the Reserve Bank of Australia rate plus 5% per calendar month and shall accrue at such a rate after as well as before any judgement.
14.2 If the Buyer defaults in payment of any invoice when due, the Buyer agrees to pay any further costs accrued by the Seller for debt recovery, action to remedy breach of contract, stoppage in transit, and any rights thereof the Seller retains to enforceable action against the Buyer.
14.3 If any account remains unpaid at the end of the second month after supply of the goods or services the following shall apply at the Seller’s discretion: An immediate amount of the greater of $20.00 or 10.00% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
14.4 In the event that:
(a) any money payable to the Seller becomes overdue, or in the Seller’s opinion the Buyer will be unable to meet its payments as they fall due; or
(b) the Buyer 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 Buyer or any asset of the Buyer; then
the Seller shall be entitled to cancel all or any part of any order of the Buyer which remains unperformed in addition to and without prejudice to any other remedies; and all amounts owing to the Seller shall, whether or not due for payment, immediately become payable.
15.1 It is the express intention of the Seller and agreed by the Buyer that Title shall not pass until:
(a) The Buyer has paid all amounts owing for the particular Goods; and
(b) The Buyer has met all other obligations due by the Buyer to the Seller in respect of all Terms & Conditions of Trade between the Seller and the Buyer, and that the Goods, or proceeds of the sale of the Goods, shall be kept separate until the Seller shall have received payment and all other obligations of the Buyer are met.
15.2 It is further agreed that:
(a) The Buyer shall not deal with the money of the Seller in any way which may be adverse to the Seller.
(b) Until such time as Title ownership of the Goods shall pass from the Seller to the Buyer the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller. Upon such notice the rights of the Buyer to obtain ownership or any other interest in the Goods shall cease.
(c) If the Buyer fails to return the Goods 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 Buyer, or any premises as the invitee of the Buyer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
(d) 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 of rights in respect of the Goods shall continue.
(e) The Buyer shall warrant the goods free of any charge or encumbrance in favour of any third party, not declared or known to the Seller before or at the time when the contract or agreement is made;
16.1 The Seller may cancel these Terms & Conditions of Trade or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
16.2 If an order for goods is terminated, cancelled, suspended or postponed for a period of up to 30 days by the buyer prior to completion, the Seller shall be entitled to be compensated for any expenses incurred up to and including the date of termination, cancellation, suspension or postponement including but not limited to, any costs associated with materials, incidentals and third party contractors.
17.1 Where the Seller has not received or been tendered the whole of the Price, or the payment has been dishonoured, or the Buyer becomes insolvent, the Seller shall have:
(a) an enforceable lien on the Goods;
(b) the right to resume possession while the Buyer or a Bailee is in possession of them;
(c) a right of stoppage in transitu whether or not delivery has been made to an Agent or not;
(d) a right of resale; and
(e) the right of disposal.
18.1 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.
18.2 Where the Buyer has supplied drawings, the Buyer indemnifies the Seller against any rights against copyright infringement of any third party.