Terms and Conditions of Sale
NIKPOL PTY LTD – TERMS AND CONDITIONS OF SALE
The following terms and conditions of sale shall apply to the sale of goods and/or services (“goods”) by Nikpol Pty Ltd ACN 005 580 665 (“the Supplier”) to the Customer. These terms and conditions of sale replace any previous terms and conditions of sale.
1. DEFINITIONS AND INTERPRETATION
In these Terms and Conditions and the following section of this document entitled “Agreement” and any other associated or collateral documents (unless a contrary intention is stated):
a) “Customer” means a person whose order for the purchase of goods is accepted by the Supplier;
b) “Supplier” means Nikpol Pty Ltd ACN 005 580 665 or any of its subsidiary or associated companies or their respective assigns;
a) Unless otherwise agreed in writing by the Supplier, any terms and conditions of the Customer’s order deviating from or inconsistent with these terms and conditions are expressly rejected by the Supplier as are any variations to these terms and conditions not expressly agreed to in writing by the Supplier.
b) The Supplier may vary these terms and conditions by notice in writing to the Customer. The Customer agrees that the purchase of any goods after the date of a notice of variation will be deemed to be an acceptance of such varied terms and conditions.
c) In these terms the singular shall include the plural and vice versa.
3. ACCOUNT TERMS
a) Unless otherwise agreed in writing by the Supplier, the Customer shall pay for all goods delivered in any calendar month on or before the last trading day in the following month.
b) If the Customer does not pay the Supplier by the due date, the Customer shall pay interest on monies due, charged on a daily basis at 15%pa from the due date for payment until the actual date of payment and shall be charged to the Customer’s account with the Supplier.
c) The Customer shall pay any legal costs and fees (on a full indemnity basis), stamp duties, bank charges or merchant fees or like charges levied on the Supplier by any banker or other credit provider whose banking or credit card facilities are utilised by the Customer for paying the Supplier any amounts on any account and other expenses payable of and incidental to any litigation on these terms and conditions together with any collection costs or dishonoured cheque fees.
a) Goods will be delivered or deemed to be delivered, when they are delivered to the delivery address nominated by the Customer. If no such address is nominated, then delivery will be deemed to occur at the time when the goods are ready for collection at the Supplier’s premises.
b) The Supplier reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Customer within 7 days of a request by the Supplier for such information.
c) The Customer authorises the Supplier to deliver the goods to the address nominated by the Customer and to leave the goods at such address whether or not any person is present to accept delivery. The Supplier shall not be liable on any basis whatsoever for loss suffered by the Customer after delivery to the nominated delivery place.
d) The Supplier shall not be obliged to obtain a signed receipt or other acknowledgment from any person at the nominated address for delivery but if a signed receipt or other acknowledgment is obtained from someone believed by the Supplier to be authorised by the Customer to sign or otherwise take delivery, then such signed receipt or other acknowledgement shall be conclusive evidence of the Customer’s acceptance of the goods delivered.
e) Any times quoted for delivery are estimates only. The Customer shall not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery by the Supplier.
f) The Supplier reserves the right to deliver goods by instalments and each instalment shall be deemed to be sold under a separate contract. Failure to deliver any instalment or deliver any instalment on time shall not entitle the Customer to repudiate the contract in whole or in part, or to refuse or withhold payment.
5. PROPERTY AND RISK
a) The goods shall be at the sole risk of the Customer as soon as they are dispatched from the Supplier’s premises.
b) Property in and title to the goods will not pass to the Customer until those goods and all other amounts owed to the Supplier by the Customer have been paid for in full and until then:
(i) the Customer will hold the goods as fiduciary and bailee for the Supplier;
(ii) the Supplier may, at its discretion, require the Customer to return the goods to it on demand and shall have the right without any notice, to enter the premises of the Customer and any other premises occupied by the Customer at the Suppliers discretion to inspect and/or seize, remove and otherwise repossess the goods without any liability whatsoever. The Customer hereby grants the Supplier an irrevocable authority to enter such premises by any means including forced entry (even if same are locked, closed or otherwise secured) without any liability and without any objection or hindrance.
(iii) the Customer hereby agrees to release and indemnify the supplier, its servants and/or agents from all actions, suits and demands whatsoever for any injury, damage or loss howsoever caused to whomsoever by reason of the supplier having exercised its rights pursuant to this clause.
6. RETURN OF GOODS
a) Subject to clause 7, unless agreed in writing by the Supplier, the Supplier will not accept the return of goods.
7. CLAIMS UPON SUPPLIER
a) All claims for the Supplier’s failure to comply with the Customer’s order whether due to shortfall, defect, incorrect delivery or otherwise must be made by giving written notice to the Supplier within three (3) days from the date of delivery. If the Customer fails to provide such notice then the Customer shall be deemed to have accepted the goods and in good condition in accordance with the Customer’s order.
b) These conditions shall not exclude, or limit the application of any provision of any statute including any implied condition or warranty the exclusion of which would contravene any statute (including the Trade Practices Act 1974) or cause any part of this clause 7 to be void. To the extent permitted by law all conditions, warranties and undertakings are expressly excluded.
c) Unless the goods supplied by the Supplier are of a kind ordinarily acquired for domestic household or personal use or consumption, the Supplier’s liability under clause 7 (b) for breach of a non-excludable condition or warranty is limited, at the Supplier’s option, to any one of the following: (i) the replacement of the goods or the supply of equivalent goods; (ii) the repair of the goods; (iii) the payment of the cost of providing replacement goods or of acquiring equivalent goods; or (iv) the payment of the cost of having the goods repaired.
d) Subject to clause 7(b) the Supplier shall not be liable for any direct or indirect loss whatsoever, including consequential loss, loss of profits, loss of opportunity or loss of use.
8. LAWS TO GOVERN PROVISIONS OF AGREEMENT
a) Unless varied by notice in writing by the Supplier these terms and conditions shall be governed by and construed in accordance with the laws of the State of Victoria (regardless of where the goods are delivered). The parties submit to the exclusive jurisdiction of the courts in the State of Victoria (and, if there is more than one such court in the capital city, at such court as the Supplier in its absolute discretion selects).
b) The parties agree that proceedings may be commenced in any such Court in the State of Victoria and consent to that Court having jurisdiction by virtue of clause 8(a) notwithstanding that that Court would not have such jurisdiction without this consent.
Notice to be given by the Customer to the Supplier may be delivered personally or sent by post addressed to the General Manager of the Supplier at the Supplier’s address at 6-12 Fairchild Street, Heatherton, Victoria 3202, and unless the contrary is proved, notice shall be taken as delivered when actually received by the Supplier at that address. Notices to be given to the Customer by the Supplier may be delivered personally or sent to the Customer’s last known address and, shall be taken as delivered on the second business day following posting. Invoices and statements are deemed received by the Customer on the second business day after posting by ordinary prepaid post.
In the event that the whole or any part or parts of any provisions in this agreement should be held to be void or unenforceable in whole or in part such provision or part thereof shall to that extent be severed from these terms and conditions in order to give business efficacy to the agreement, and the validity and enforceability of the remainder of these terms and conditions shall not be affected.
A statement in writing signed by the Supplier’s Credit Manager or one of its Directors stating the monies payable by the Customer to the Supplier shall be prima facie evidence of the amounts due and payable.
a) The Customer agrees that the Supplier shall remain the legal and beneficial owner of the goods (collateral) supplied until such time the Customer has paid for the goods in full.
b) The parties agree that the Personal Property Securities Act 2009 (Cth) (PPSA) applies to these Terms and Conditions and words defined in the PPSA have the same meaning in these Terms and Conditions.
c) The Customer is the Grantor and the Supplier is the Secured Party and these Terms and Conditions are a Security Agreement. The goods sold are the collateral.
d) The Grantor grants the Secured Party a Purchase Money Security Interest (PMSI) over all the Grantor’s present and after acquired property and over any proceeds of the goods to secure payment of the purchase price.
e) The Security Interest attaches to the collateral in accordance with Section 19(2) of the PPSA and continues in accordance with Section 99 if the identity of the collateral is lost due to the goods being processed or comingled.
f) The parties agree that the Security Interest is perfected by the Secured Party by registration on the PPS Register and the Grantor agrees to do all such things or the procure the doing of such things as are required to enable registration.
g) The Grantor covenants not to transfer the collateral without prior written consent from the Secured Party.
h) If collateral gives rise to proceeds the security interest continues and attaches to the proceeds in accordance with Section 32.
i) Any time the Grantor makes payment to the Secured Party, irrespective whether the payment is made under or in connection with this agreement, the Secured Party may apply that payment:
(a) first, to satisfy an obligation that is not secured;
(b) second, to satisfy an obligation that is secured, but not by a PMSI; and
(c) third, to satisfy an obligation that is secured by a PMSI for that obligation and using proceeds from the sale of the collateral subject to that PMSI; and
(d) fourth, to satisfy an obligation that is secured by a PMSI using funds or proceeds from any source, or despite the foregoing, any manner the Secured Party sees fit.
j) The Secured Party has the right of resale of the collateral in the event that it retakes possession in accordance with the provisions of the PPSA.
k) The Grantor consents to the Secured Party having access to its premises for the purpose of retaking possession of the collateral.
l) To the extent permitted by the PPSA the Grantor waives all rights to the notifications and the parties agree that only those provisions in the PPSA dealing with the Grantor’s rights that are mandatory apply to these Terms and Conditions.