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STANDARD CONDITIONS OF SALE
1.1 “COMPANY” shall mean Alka Dreams Pty Ltd (CAN 652 323 487) which is incorporated in New South Wales and its assigns or successors and each
corporation (within the meaning of that term and section 9 of the Corporations Law) which is now or may later be taken to be related to Alka Dreams Pty Ltd (CAN 652 323 487) (within the meaning of section 50 of the Corporations Law) from which the Purchaser purchases goods.
1.2 “COSTS” includes costs on the basis of solicitor and own client and any GST on such costs.
1.2 “GOODS” means chemical and chemical building products supplied by the Company, and any other products or services which the Company offers or supplies from time to time.
1.4 “GST” means any tax, impost or duty, including any goods and services, consumption, value added or similar tax applying on goods, services, or other things introduced by the Commonwealth, a State or Territory which is charged or levied on goods, services or other things.
1.5 “INSOLVENCY EVENT” is treated as occurring when:
1.5.1 Except for the purposes of a solvent reconstruction or amalgamation previously approved by the company in writing:
18.104.22.168 An application or an order is made, proceedings are commenced, a resolution is passed or proposed in a Notice of Meeting or an Application to a Court or other steps are taken for the winding up, dissolution, or voluntary administration of the Purchaser; or
22.214.171.124 The Purchaser enters into any arrangement, compromise or composition with or assignment for the benefit of its creditors or any class of them;
1.5.2 The Purchaser ceases, suspends, or threatens to cease or suspend the conduct of its business or disposes of or threatens to dispose of its assets other than in the ordinary
course of its business;
1.5.3 The Purchaser is, or is treated, under any applicable legislation as,
unable to pay its debts when they fall due (other than as a result of the failure to pay a debt or claim the
subject of a good faith dispute) or stops or suspends or threatens to stop or suspend the payment of all or any class of its debts;
1.5.4 A receiver, a receiver and manager, administrator or similar officer is appointed to the Purchaser or any part of its property, or a distress, attachment, or other execution
as levied or enforced; or
1.5.5 (in the case of a Purchaser is a natural person) the Purchaser commits an act of bankruptcy.
1.6 “MONEY OWED” means all the money the Purchaser is liable to pay to the Company, now or in the future, conditionally or contingently, alone, together, or with any other person and for any reason, including any one or more of the following:
1.6.1 The price of Goods supplied under the Conditions of Sale;
1.6.2 The amount of credit from time to time which the company has extended to the Purchaser;
1.6.3 The costs or losses the Company incurs, including any costs or losses incurred if the Company exercises its rights (including its rights on default); and
1.6.4 The costs the Company incurs in recovering Money owed or Money owed under their guarantee, indemnity, charge or any related security.
1.7 “PREMISES” includes any location where Goods or hired equipment may be found, whether in the control of the Purchaser or not, such as a building site on which the Purchaser is working.
1.8 “PURCHASER” shall mean the person contracting with the Company for the supply of goods.
1.9 “THIS SUPPLY CONTRACT” means the contract under which the Goods are supplied.
2 RETENTION OF TITLE
2.1 The Purchaser must hold the Goods as the Company’s fiduciary agent and baillee.
2.2 The Purchase must keep the Goods separate from its own goods and those of third parties in a way which allows them to be readily distinguished, properly stored, protected and insured. The Purchaser must keep records of the Goods owned by the company.
2.3 Ownership of the Goods remains with the Company until the Money owed is paid in full.
2.4 Risk shall pass to the Purchaser on the delivery of Goods.
2.5 Until the Money owed is paid in full:
2.5.1 The Purchaser may re-sell the goods as fiduciary agent for the Company;
2.5.2 The Purchaser is to keep the proceeds of any re-sale of the Goods separate from its own and those of third parties and is to keep all tangible proceeds properly stored,
protected and insured; and
2.5.2 The Purchaser is to account to the Company for the proceeds of any re-sale of the Goods and any other proceeds tangible or intangible including insurance proceeds.
2.6 2.6.1 If the Purchaser re-sells the Goods it re-sells as principal to any sub-purchaser, and has no right to commit the Company to any contractual relationship or liability to any
third party; and
2.6.2 Between the Company and the Purchaser, the Purchaser must sell as fiduciary agent and bailee for the Company.
2.6.3 Any re-sale by the Purchaser must be in good faith, on commercially reasonable terms and in the ordinary course of the Purchaser’s business.
2.7 The Purchaser must not represent to any third parties that it is in any way acting for the Company, and must indemnify the Company against any claim, action, proceedings, damage,
loss, costs, expense or liability incurred or suffered by the Company arising out of any such representation.
2.8 The Company is to have power to appropriate payments for such goods and accounts as the company thinks fit, notwithstanding any purported, appropriation by the Purchaser to the contrary.
3 3.1 Until the Money is paid in full, if;
3.1.1 The Company receives notice of or reasonably believes that a third person may attempt to levy execution against the Goods; or
3.1.2 An Insolvency Event occurs,
then at the same time as that event and at that point of time the Company shall be treated as :-
(a) if it had intervened and exercised its rights to terminate the bailment set up in clause 2.1 and the permission to re-sell given in clause 2.5.1; and
(b) having had the right, from the same time as that event, without notice to the Purchaser and without prejudice to any other rights which it may have against the Purchaser,
(i) Terminate any contract relating to the Goods;
(ii) Enter upon any premises owned or occupied by the Purchaser where the Company reasonably believes Goods may be stored;
(iii) Re-possess the Goods without being liable for any damages caused; and
(iv) Subsequently dispose of the Goods at the Company/s discretion;
(v) Retain the entire proceeds of any disposal, not exceeding the amount of the Money owed.
4 The Purchaser consents to allow the Company reasonable access to any premises in order to inspect the Goods at any time or to re-take possession of them in accordance with these conditions of sale.
5 The Purchaser is entitled to a period of grace of 30 days from the end of the month of the supply contract to pay free of interest, but shall account to the Company for the purchase price of the Goods immediately after the goods are on-sold and the proceeds of sale received, even though the grace period may not have expired.
6 The Purchaser agrees that the only terms, conditions and warranties which apply to this agreement are those which by law cannot be excluded or modified, or those which are contained in this document. All other terms, conditions and warranties, whether implied by common law or statute are expressly excluded.
7 LIMITATION OF LIABILITY
In the event that the Company is liable for breach of a condition or warranty which cannot by law be excluded or modified, the liability of the company is limited to any one of the following, at the option of the Company;
7.1 The replacement of the Goods or the supply of equivalent Goods;
7.2 The repair of the Goods;
7.3 The payment of the costs of replacing the Goods or of acquiring equivalent Goods;
7.4 The payment of the costs of having the Goods repaired.
8.1 The Company shall invoice the Purchaser at the time of delivery of the Goods. All invoices for Goods and services supplied by the Company to the Purchaser shall be paid on the date of invoice
8.2 If invoices remain unpaid after a period of 30 days from the end of the month of the supply contract the Company is entitled to and will claim interest at the rate of ten percent per annum on all invoiced amounts unpaid.
9 No variation or alteration of these conditions shall have any effect unless the Company agrees in writing to such variations.
10 All quotations are to be regarded as invitations to treat and not as a firm offer made by the Company. Any purported acceptance of the quotation or tender is to be regarded as an offer subject to acceptance by the Company before a Contract is concluded. The Company reserves the right to correct any errors or omissions in its quotations prior to confirmation of agreement by the Company
11 Any information, recommendation or advice relating to the goods illustrated or described in catalogues and other literature supplied by the Company is not intended to constitute any condition or
warranty in the contract, but this clause shall not be construed as excluding any liability which by law cannot be excluded.
12 Any delivery or supply times quoted are estimates only and may be extended where the Company’s suppliers or subcontractors are delayed due to unforeseen circumstances.
13 The Company shall not be liable for any loss, injury or damage caused by or consequent upon any delay in delivery or non delivery of materials or parts for any cause whatsoever. The Company’s liability for any breach of an implied term under Section 74 of the Trade Practices Act is limited as set out in clause 7 (above).
14 The Company its employees or agents shall not be liable for any loss, injury or damage caused by or consequent upon any negligence arising out of any activities or advice given by or on behalf of the Company or for any other cause whatsoever. The Company’s liability for any breach of an implied term under Section 74 of the Trade Practices Act is limited as set out in clause 7 (above).
15 GOODS & SERVICES TAX
If a GST applies to any amount payable under this contract then:
15.1 No amount specified as payable by the Purchaser under this contract is inclusive of any GST applying to such payments
15.2 The Purchaser must pay to the Company, or as the company directs, the GST payable on the Money owed and other payments payable by the Purchaser under this contract.