Terms and Conditions
Independent Locksmiths Terms & Conditions
Independent Locksmiths & Security Pty Ltd – Terms & Conditions of Trade © Copyright – EC Credit Control Pty Ltd - 2007 1. 1.1
“Seller” shall mean Independent Locksmiths & Security Pty Ltd
1.2 behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Seller to the Customer. 1.3 agrees to be liable for the debts of the Customer on a principal debtor basis. 1.4 Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Seller to the Customer. 1.5 Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above). 1.6 between the Seller and the Customer in accordance with clause 3 of this contract. “Price” shall mean the price payable for the Goods as agreed 2. 2.1 the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein. 2.2 agreement, the Customers shall be jointly and severally liable for all payments of the Price. Where more than one Customer has entered into this 2.3 Customer the terms and conditions are binding and can only be amended with the written consent of the Seller. Upon acceptance of these terms and conditions by the 2.4 days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply with this clause. The Customer shall give the Seller not less than fourteen (14) 3. 3.1 (a) Customer in respect of Goods supplied; or as indicated on invoices provided by the Seller to the (b) be binding upon the Seller provided that the Customer shall accept the Seller’s quotation in writing within ninety (90) days. 3.2 a variation to the Seller’s quotation. The Seller reserves the right to change the Price in the event of 3.3 Customer’s shall be due thirty (30) days following the end of the month in which the invoice is raised. At the Seller’s sole discretion payment for approved 3.4 will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice. Time for payment for the Goods shall be of the essence and 3.5 cheque, or by credit card (plus a surcharge of up to 4% of the price), or by direct credit, or by any other method as agreed to between the Customer and the Seller. Payment will be made by cash, or by cheque, or by bank 3.6 be added to the Price except when they are expressly included in the Price. GST and other taxes and duties that may be applicable shall 4. 4.1 place when the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by the Seller or the Seller’s nominated carrier). At the Seller’s sole discretion delivery of the Goods shall take 4.2 (a) (b) 4.3 delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Seller shall be entitled to charge a reasonable fee for redelivery. The Customer shall make all arrangements necessary to take 4.4 Customer is deemed to be delivery to the Customer for the purposes of this agreement. Delivery of the Goods to a third party nominated by the 4.5 Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions. The Seller may deliver the Goods by separate instalments. 4.6 treat this contract as repudiated. The failure of the Seller to deliver shall not entitle either party to 4.7 due to failure by the Seller to deliver the Goods (or any of them) promptly or at all. The Seller shall not be liable for any loss or damage whatever 5. 5.1 risk for the Goods passes to the Customer on delivery. If the Seller retains ownership of the Goods nonetheless, all 5.2 delivery but prior to ownership passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Goods. 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. If any of the Goods are damaged or destroyed following 6. 6.1 shall not pass until: (a) particular Goods; and (b) Customer to the Seller in respect of all contracts between the Seller and the Customer. 6.2 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 or rights in respect of the Goods shall continue. 6.3 (a) identifiable until the Seller shall have received payment and all other obligations of the Customer are met; and where practicable the Goods shall be kept separate and (b) the Seller to the Customer the Seller may give notice in writing to the Customer to return the Goods or any of them to the Seller. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and until such time as ownership of the Goods shall pass from (c) whether or not delivery has been made; and the Seller shall have the right of stopping the Goods in transit (d) the Seller or the Seller’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and if the Customer fails to return the Goods to the Seller then (e) time as the Seller has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller; and the Customer is only a bailee of the Goods and until such Independent Locksmiths & Security Pty Ltd – Terms & Conditions of Trade
© Copyright – EC Credit Control Pty Ltd - 2007 (f) any way which may be adverse to the Seller; and the Customer shall not deal with the money of the Seller in (g) grant nor otherwise give any interest in the Goods while they remain the property of the Seller; and the Customer shall not charge the Goods in any way nor (h) Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and the Seller can issue proceedings to recover the Price of the (i) Customer, if the Goods are converted into other products, the parties agree that the Seller will be the owner of the end products. until such time that ownership in the Goods passes to the 7. 7.1 any contract with the Seller or to sue for damages or to claim restitution arising out of any misrepresentation made to the Customer by the Seller and the Customer acknowledges that the Goods are bought relying solely upon the Customer’s skill and judgement. The Customer hereby disclaims any right to rescind, or cancel 8. 8.1 within fourteen (14) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Customer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods. Where the Customer is a consumer as defined in the TPA then the client shall also be entitled to a refund. The Customer shall inspect the Goods on delivery and shall 8.2 with 8.1 above. 9. Fair Trading Acts (“FTA”) 9.1 contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable. Nothing in this agreement is intended to have the effect of 10. 10.1 Seller warrants that if any defect in any workmanship of the Seller becomes apparent and is reported to the Seller within three (3) months of the date of delivery (time being of the essence) then the Seller will either (at the Seller’s sole discretion) replace or remedy the workmanship. Subject to the conditions of warranty set out in clause 10.2 the 10.2 are: (a) may be caused or partly caused by or arise through: the warranty shall not cover any defect or damage which (i) Goods; or failure on the part of the Customer to properly maintain any (ii) instructions or guidelines provided by the Seller; or failure on the part of the Customer to follow any (iii) specified on a quote or order form; or any use of any Goods otherwise than for any application (iv) apparent or would have become apparent to a reasonably prudent operator or user; or the continued use of any Goods after any defect becomes (v) (b) circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent. (c) compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim. 10.3 be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods. For Goods not manufactured by the Seller, the warranty shall 11. 11.1 Customer, then the copyright in those designs and drawings and documents shall remain vested in the Seller, and shall only be used by the Customer at the Seller’s discretion. Where the Seller has designed, drawn or written Goods for the 11.2 Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Client agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement. The Customer warrants that all designs or instructions to the 12. 12.1 accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgement. At the Seller’s sole discretion interest on overdue invoices shall 12.2 the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs. If the Customer defaults in payment of any invoice when due, 12.3 at any time the Customer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause. Without prejudice to any other remedies the Seller may have, if 12.4 after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) may be levied for administration fees which sum shall become immediately due and payable. At the Seller’s sole discretion if any account remains overdue 12.5 Seller shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that: Without prejudice to the Seller’s other remedies at law the (a) Seller’s opinion the Customer will be unable to meet its payments as they fall due; or any money payable to the Seller becomes overdue, or in the (b) its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or the Customer becomes insolvent, convenes a meeting with (c) similar person is appointed in respect of the Customer or any asset of the Customer. a receiver, manager, liquidator (provisional or otherwise) or 13. 13.1 rights which the Seller may have howsoever: Despite anything to the contrary contained herein or any other (a) owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller’s nominee to secure all amounts and where the Customer and/or the Guarantor (if any) is the Independent Locksmiths & Security Pty Ltd – Terms & Conditions of Trade © Copyright – EC Credit Control Pty Ltd - 2007 other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met. (b) accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis. should the Seller elect to proceed in any manner in (c) irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 13.1. 14. 14.1 conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Seller shall repay to the Customer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation. The Seller may cancel any contract to which these terms and 14.2 Customer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation. In the event that the Customer cancels delivery of Goods the 15. 15.1 obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Seller. The Customer and/or the Guarantor/s agree for the Seller to 15.2 may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes: The Customer and/or the Guarantor/s agree that the Seller (a) (b) and/or to notify other credit providers of a default by the Customer; (c) status of this credit account, where the Customer is in default with other credit providers; and/or to exchange information with other credit providers as to the (d) Guarantor/s. 15.3 credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988). 15.4 may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Customer and Seller or required by law from time to time: The Customer agrees that personal credit information provided (a) (b) relation to the Goods; and/or marketing of Goods by the Seller, its agents or distributors in (c) payment and/or status in relation to provision of Goods; and/or analysing, verifying and/or checking the Customer’s credit, (d) and/or credit facilities requested by Customer; and/or processing of any payment instructions, direct debit facilities (e) the collection of amounts outstanding in the Customer’s account in relation to the Goods. 15.5 reporting agency for the following purposes: The Seller may give information about the Customer to a credit (a) and/or to obtain a consumer credit report about the Customer; (b) credit information file containing information about the Customer. 16. 16.1 modification, exchange or for the Seller to perform any other Service in relation to the item and the Seller has not received or been tendered the whole of the Price, or the payment has been dishonoured, the Seller shall have: Where the Customer has left any item with the Seller for repair, (a) (b) possession of the item; the right to retain the item for the Price while the Seller is in (c) 16.2 commencement of proceedings, or judgment for the Price having been obtained. The lien of the Seller shall continue despite the 17. Act 1999 Building and Construction Industry Security of Payments 17.1 claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply. At the Seller’s sole discretion, if there are any disputes or 17.2 contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable. Nothing in this agreement is intended to have the affect of 18. 18.1 void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired. If any provision of these terms and conditions shall be invalid, 18.2 apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales. These terms and conditions and any contract to which they 18.3 for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these terms and conditions. The Seller shall be under no liability whatever to the Customer 18.4 remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods. In the event of any breach of this contract by the Seller the 18.5 from the Price any sums owed or claimed to be owed to the Customer by the Seller. The Customer shall not be entitled to set off against or deduct 18.6 rights and obligations without the Customer’s consent. The Seller may license or sub-contract all or any part of its 18.7 conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Seller notifies the Customer of such change. The Seller reserves the right to review these terms and 18.8 God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party. Neither party shall be liable for any default due to any act of 18.9 terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision. The failure by the Seller to enforce any provision of these
its successors and assigns or any person acting on behalf of and with the authority of Independent Locksmiths & Security Pty Ltd.
