- “Seller” means Nu-Pure Unit Trust ATF Nu-Pure Pty Ltd (ABN: 47 423 476 244) of 1/76 Quinns Hill Road East, Stapylton Qld 4207.
- “Customer” means the Customer or any person acting on behalf of and with the authority of the Customer.
- “Guarantor” means that person (or persons), or entity who agrees herein to be liable for the debts of the Customer on a principal debtor basis.
- “Goods” mean goods supplied by the Seller to the Customer (and where the context so permits include any supply of Services as hereinafter defined).
- “Services” mean all services supplied by the Seller to the Customer and includes any advice or recommendations (and where the context so permits include any supply of Goods as defined supra).
- “Price” means the cost of the Goods as agreed between the Seller and the Customer subject to clause 4 of this contract.
- Any instructions received by the Seller from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by the Seller will constitute acceptance of the terms and conditions contained herein.
- Where more than one Customer has entered into this agreement, the Customer’s will be jointly and severally liable for all payments of the Price.
- Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.
- None of the Seller’s agents or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorised statements.
- The Customer undertakes to give the Seller not less than fourteen (14) days prior written notice of any proposed 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 Goods are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Seller to the Customer.
Price And Payment
- At the Seller’s sole discretion the Price will be either;
- as indicated on invoices provided by the Seller to the Customer in respect of Goods supplied; or
- the Seller’s current Price, at the date of delivery of the Goods, according to the Seller’s current Price list; or
- the Seller’s quoted Price (subject to clause 4.2) which will be binding upon the Seller provided that the Customer will accept in writing the Seller’s quotation within thirty (30) days.
- Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Seller’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
- Time for payment for the Goods will be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment will be on delivery of the Goods.
- The Seller may withhold delivery of the Goods until the Customer has paid for them, in which event payment will be made before the delivery date.
- At the Seller’s sole discretion, payment for approved Customer’s will be due on seven (7) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.
- At the Seller’s sole discretion, for certain approved Customers payment will be due seven (7) days following the date of the invoice.
- Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Customer and the Seller.
- The Price will be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
Delivery Of Goods and Services
- Delivery of the Goods will be made to the Customer’s address. The Customer will make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods will be made to the Customer at the Seller’s address.
- Delivery of the Goods to a carrier, either named by the Customer or failing such naming to a carrier at the discretion of the Seller for the purpose of transmission to the Customer, is deemed to be a delivery of the Goods to the Customer.
- Where there is no agreement that the Seller will send the Goods to the Customer, delivery to a carrier at limited carrier’s risk at the expense of the Customer is deemed to be delivery to the Customer.
- Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
- The Customer will take delivery of the Goods tendered notwithstanding that the quantity so delivered will be either greater or less than the quantity purchased provided that;
- such discrepancy in quantity will not exceed 5%, and
- the Price will be adjusted pro rata to the discrepancy.
- The failure of the Seller to deliver will not entitle either party to treat this contract as repudiated.
- The Seller will not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all.
- If the Seller retains property in the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
- If any of the Goods are damaged or destroyed prior to property in them passing to the Customer, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions of Trade (including the right to receive payment of the balance of the Price for the Goods), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. 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.
- The Customer hereby disclaims any right to rescind, or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Customer acknowledges that he buys the Goods relying solely upon his own skill and judgement and that the Seller will not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by the Manufacturer which warranty will be personal to the Customer and will not be transferable to any subsequent Customer.
- The Customer will inspect the Goods on delivery and will 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 Customer will 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 will fail to comply with these provisions, the Goods will be conclusively presumed to be in accordance with the terms and conditions and 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 provided that:
- The Customer has complied with the provisions of clause 8.1;
- The Goods are returned at the Customer’s cost within seven (7) days of the delivery date;
- The Seller will not be liable for Goods which have not been stored or used in a proper manner;
- The Goods are returned in the condition in which they were delivered with all packaging material.
- The Seller may (in its discretion) accept the Goods for credit but this may incur a handling fee of 10% of the value of the returned Goods plus any freight.
- Subject to the conditions of warranty set out in Clause 9.2 the Seller warrants that if any defect in any workmanship manufactured by 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) repair the defect or replace the workmanship.
- The conditions applicable to the warranty given by Clause 9.1 are:
(a) The warranty will not cover any defect or damage which may be caused or partly caused by or arise through:
- failure on the part of the Customer to properly maintain any Goods; or
- failure on the part of the Customer to follow any instructions or guidelines provided by the Seller; or
- any use of any Goods otherwise than for any application specified on a quote or order form; or
- the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
- fair wear and tear, any accident or act of God.
(b) The warranty will cease and the Seller will thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent.
(c) In respect of all claims the Seller will not be liable to compensate the Customer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Customer’s claim.
- The conditions applicable to the warranty given by Clause 9.1 are:
- For Goods not manufactured by the Seller, the warranty will be the current warranty provided by the manufacturer of the Goods. The Seller will be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturers warranty.
The Competition and Consumer Act 2010
- Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
- Where the Seller has designed or drawn Goods for the Customer, then the copyright in those designs and drawings will remain vested in the Seller, and will only be used by the Customer at the Seller’s discretion.
- Conversely, in such a situation, where the Customer has supplied drawings, the Seller in its sale conditions may look for an indemnity (the specifications and design of the Goods (including the copyright, design right or other intellectual property in them) will as between the parties be the property of the Seller).
- Where any designs or specifications have been supplied by the Customer for manufacture, by or to the order of the Seller then the Customer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods will not infringe the rights of any third party.
- The Customer warrants that all designs or instructions to the Seller will not cause the Seller to infringe any patent, registered design or trademark in the execution of the Customer’s order.
Default & Consequences of Default
- Interest on overdue invoices will accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% compounding per calendar month and will accrue at such a rate after as well as before any judgement.
- If the Customer defaults in payment of any invoice when due, the Customer will indemnify the Seller from and against all the Seller’s costs and disbursements including on a solicitor and own client basis and in addition all of the Seller’s nominees costs of collection.
- Without prejudice to any other remedies the Seller may have, if 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 exercised its rights under this clause.
- If any account remains unpaid at the end of the second month after supply of the goods or services an immediate amount of the greater of $20.00 or 10.00% of the amount overdue will be levied for administration fees which sum will become immediately due and payable.
- In the event that:
- any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to meet its payments as they fall due; or
- the Customer 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
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer;
then without prejudice to the Seller’s other remedies at law (i) the Seller will be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
- All amounts owing to the Seller will, whether or not due for payment, immediately become payable in addition to the interest payable under clause 12.1 hereof.
- It is the intention of the Seller and agreed by the Customer that property in the Goods will not pass until:
- the Customer has paid all amounts owing for the particular Goods, and
- the Customer has met all other obligations due by the Customer to the Seller in respect of all contracts between the Seller and the Customer, and that the Goods will be kept separate until the Seller will have received payment and all other obligations of the Customer are met.
- It is further agreed that:
- until such time as ownership of the Goods will pass from 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 will cease.
- if the Customer 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 Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
- the Customer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Customer will hold any proceeds from the sale or disposal of the Goods in trust for the Seller.
- the Customer will not deal with the money of the Seller in any way which may be adverse to the Seller.
- receipt by the Seller of any form of payment other than cash will 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 will continue.
- the Customer will not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.
- the Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Customer to the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amounts due and the Price.
- the Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer.
- until such time the Customer has the Seller’s authority to convert the Goods into other products and if the goods are so converted, the parties agree that the Seller will be the owner of the end products.
Security and Charge
- Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
- where the Customer and/or the Guarantor (if any) is the 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 other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Seller (or the Seller’s nominee) will be entitled to lodge where appropriate a caveat, which caveat will be released once all payments and other monetary obligations payable hereunder have been met.
- should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor will indemnify the seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
- to give effect to the provisions of clause [14.1 (a) and (b)] inclusive hereof the Customer and/or the Guarantor (if any) do hereby 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 execute mortgages and charges (whether registerable or not) including such other terms and conditions as the Seller and/or the Seller’s nominee will think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Customer and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Customer’s and/or Guarantor’s name as may be necessary to secure the said Customer’s and/or Guarantor’s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Seller’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Seller will not be liable for any loss or damage whatever arising from such cancellation.
- At the Sellers sole discretion the Customer may cancel delivery of the Goods. In the event that the Customer cancels delivery of the Goods the Customer will be liable for any costs incurred by the Seller up to the time of cancellation.
- The Customer and/or the Guarantor/s agree for the Seller to 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 that the Seller may exchange information about Customer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
- to assess an application by Customer;
- to notify other credit providers of a default by the Customer;
- to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and
- to assess the credit worthiness of Customer and/or Guarantor/s.
- The Customer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
- The Customer agrees that Personal Data provided may be used and retained by the Seller for the following purposes and for other purposes as will be agreed between the Customer and Seller or required by law from time to time:
- provision of Services & Goods;
- marketing of Services and/or Goods by the Seller, its agents or distributors in relation to the Services and Goods;
- analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Services/Goods;
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and
- enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Services and Goods.
- The Seller may give, information about the Customer to a credit reporting agency for the following purposes:
- to obtain a consumer credit report about the Customer; and or
- allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
Unpaid Seller’s Rights to Dispose of Goods
- In the event that: the Seller retains possession or control of the Goods; and
- payment of the Price is due to the Seller; and
- the Seller has made demand in writing of the Customer for payment of the Price in terms of this contract; and
- the Seller has not received the Price of the Goods,
then, whether the property in the Goods has passed to the Customer or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Customer the loss to the Seller on such disposal.
Lien & Stoppage in Transit
- Where the Seller has not received or been tendered the whole of the price, or the payment has been dishonoured, the Seller will have:
- a lien on the goods;
- the right to retain them for the price while the Seller is in possession of them;
- a right of stopping the goods in transit whether or not delivery has been made or ownership has passed; and
- a right of resale,
- the foregoing right of disposal, provided that the lien of the Seller will continue despite the commencement of proceedings or judgement for the price having been obtained.
- If any provision of these terms and conditions will be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
- All 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 Goods supplied.
- The Seller will be under no liability whatever to the Customer 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.
- In the event of any breach of this contract by the Seller the remedies of the Customer will be limited to damages. Under no circumstances will the liability of the Seller exceed the Price of the Goods.
- The Customer will not set off against the Price amounts due from the Seller.
- The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
- The Seller reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the seller notifies the Customer of such change.
- Neither party will be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.