Terms and Conditions
1. INTERPRETATION
1.1 In these Terms and Conditions:
Buyer means the person who accepts COLRAIN's quotation for the supply of Goods and/or Services or whose request for Goods and/or Services is accepted by COLRAIN.
Customer Goods means goods belonging to the Buyer and on which COLRAIN will carry out Services.
Delivery Date means the date of delivery of the Goods or Finished Goods as notified by COLRAIN to the Buyer.
Finished Goods means Customer Goods that have been serviced in accordance with the Services.
Goods means goods which COLRAIN supplies to the Buyer in accordance with these Terms and Conditions.
COLRAIN means Colrain Pty Ltd ABN 76 110 786 215, Colrain Albury Pty Ltd 28 111 881 951, Colrain (Geelong) Pty Ltd 28 111 928 931, Colrain Ballarat Pty Ltd 79 005 393 073, Colrain Queensland Pty Ltd 15 084 354 496.
Purchase Price means the [tax inclusive] amount the Buyer must pay to COLRAIN for the Goods and/or the Services, being COLRAIN's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in COLRAIN's published price list current at the date of acceptance of the order.
Services means the services that COLRAIN supplies to the Buyer in accordance with these Terms and Conditions.
Specifications means the specifications of the Goods or Services or Finished Goods as described in COLRAIN's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by COLRAIN).
Terms and Conditions means the terms and conditions of sale and supply set out in this document and includes any additional terms and conditions agreed in writing between COLRAIN and the Buyer.
2. ORDERS AND SPECIFICATIONS
2.1 Any order submitted by the Buyer must be accepted in writing by COLRAIN's authorised representative before it will bind COLRAIN. Each order confirmed by COLRAIN will incorporate these Terms and Conditions. Where the Buyer places an order for Goods or Services which contains terms and conditions
inconsistent with these Terms and Conditions, the Buyer's terms and conditions are excluded to the extent of the inconsistency.
2.2 The Buyer is responsible for verifying the accuracy of any
quotation supplied to the Buyer by COLRAIN or any order
(including any applicable Specification) submitted by the Buyer.
COLRAIN may make any changes to a Specification which are
required to conform with any applicable safety or other statutory
requirements or which do not materially affect the quality or
performance of the relevant Goods.
2.3 If any process is to be applied to the Goods or Customer Goods
by COLRAIN in accordance with the Specifications, the Buyer will
indemnify COLRAIN and keep COLRAIN indemnified against all
losses, damages, costs and expenses awarded against or
incurred by COLRAIN in connection with or paid or agreed to be
paid by COLRAIN in settlement of any claim for infringement of
any intellectual property rights of any other person which results
from COLRAIN's use of the Specifications.
PRICE AND PAYMENT
3.1 Subject to condition 3.2, the Buyer agrees to pay COLRAIN the
Purchase Price less any discount applicable, as invoiced by
COLRAIN to the Buyer within 30 days of the end of the month in
which the Goods or Services are delivered or provided.
3.2 COLRAIN may, where it has reasonable grounds to believe that
the Buyer may fail to pay an invoice within the period provided in
condition 3.1, require the Buyer to pay the Purchase Price prior to
the Buyer collecting the Finished Goods from COLRAIN.
3.3 COLRAIN reserves the right to increase the Purchase Price to
reflect any increase in the cost to COLRAIN due to any factor
beyond COLRAIN's control, any change in delivery dates,
quantities or specifications for Goods and/or Services the Buyer
requests or any delay caused by the Buyer's instructions or failure
to give COLRAIN adequate information or instructions.
4. CANCELLATIONS AND DEFERRALS
4.1 Once an order is accepted by COLRAIN, the Buyer is bound by
the order, and will, at COLRAIN's discretion, pay all costs, losses,
charges and expenses incurred by COLRAIN associated with any
cancellation or deferral of the order.
4.2 COLRAIN will provide the Buyer with an invoice setting out the
costs associated with the cancellation or deferral and the Buyer
will pay the amount set out in the invoice on the day the invoice is
received.
5. DELIVERY
5.1 COLRAIN will deliver the Goods or Finished Goods to the Buyer
by the Buyer collecting the Goods or Finished Goods at
COLRAIN's premises on or after the Delivery Date or, if some
other place for delivery is agreed by COLRAIN, by COLRAIN's
delivery to that place.
5.2 If the Buyer does not collect the Goods or Finished Goods, or the
Buyer does not provide COLRAIN with forwarding instructions
sufficient to enable it to deliver the Goods or Finished Goods
within 14 days of notification by COLRAIN to the Buyer that they
are ready for delivery, the Buyer is deemed to have taken delivery
of the Goods or Finished Goods and COLRAIN will be entitled to
invoice the Buyer for the Goods or Services. The Buyer will
reimburse COLRAIN for any storage charges for the Goods or
Finished Goods within 14 days of receiving an invoice from
COLRAIN. If the Buyer fails to collect the Goods or Finished
Goods within [30 days] of the Delivery Date, COLRAIN will be
entitled to sell the Goods or Finished Goods and will pay to the
Buyer the amount remaining from the sale price after deducting
the Purchase Price (in the case of Finished Goods), COLRAIN's
storage charges and any other amounts owed by the Buyer to
COLRAIN on any account.
5.3 Where COLRAIN agrees to deliver the Goods or Finished Goods
other than at COLRAIN's premises, the Buyer is liable to pay
COLRAIN's charges for transport, packaging and insurance. The
Buyer is also responsible for the delivery of Customer Goods to
COLRAIN's premises, including the cost of transport, packaging
and insurance.
6. TITLE
6.1 Title to the Goods will not pass to the Buyer until the Purchase
Price is paid in full.
6.2 Until title to the Goods has passed to the Buyer in accordance
with this clause, the Buyer holds the Goods as fiduciary bailee of
COLRAIN and the Buyer agrees to store the Goods separately so
that the Goods are identifiable as COLRAIN's property. The
Buyer has the right to sell the Goods in the ordinary course of
trade if the Buyer accounts to COLRAIN for all payments,
including payments by third parties, in accordance with the
Buyer's fiduciary relationship.
6.3 The risk of loss or damage to the Goods passes to the Buyer on
delivery to, or collection by, the Buyer of the Goods.
6.4 Subject to condition 5.2, property in Customer Goods and
Finished Goods will remain the Buyer's at all times during this
agreement.
6.5 Risk of damage to, or loss of, Customer Goods and Finished
Goods will remain with the Buyer at all times during this
agreement. Except as expressly provided in this agreement,
COLRAIN makes no representation as to the condition of:
(a) the Customer Goods at the time they are delivered to COLRAIN; or
(b) the Finished Goods at the time they are delivered to the Buyer.
7. ACCEPTANCE
7.1 The Buyer must examine the Goods and the Finished Goods.
Unless the Buyer gives written notice to COLRAIN of any defects
in the Goods or the Finished Goods or their failure to correspond
with the Specifications within 7 days of the Delivery Date, the
Buyer is deemed to have accepted the Goods or the Finished
Goods as being of merchantable quality, corresponding with the
Specifications and free of defects.
8. EXCUSABLE DELAYS
8.1 COLRAIN is not liable for any delay in, or failure to comply with,
these Terms and Conditions where such failure was due to any
cause beyond COLRAIN's reasonable control.
9. EXCLUSIONS AND LIMITATIONS
9.1 Any error or omission in any sales literature, quotation, invoice or
other document or information issued by COLRAIN is subject to
correction without any liability on COLRAIN's part.
9.2 This clause does not exclude or limit the application of any statute
(including the Trade Practices Act 1974 (Cth) where to do so
would contravene that statute or cause any part of this clause to
be void.
9.3 COLRAIN excludes all implied conditions and warranties except
any implied condition or warranty which would contravene any
statute or cause any part of this clause to be void (Nonexcludable
Condition).
COLRAIN's liability to the Buyer for breach of any express
provision of these Terms and Conditions or any Non-excludable
Condition is limited, at COLRAIN's option:
(a) if in relation to sale of Goods:
(i) to the replacement of the Goods;
(ii) the supply of equivalent Goods;
(iii) the repair of the Goods;
(iv) the payment of the cost of replacing the Goods or of
acquiring equivalent Goods; or
(v) the payment of the cost of having the Goods or
Customer Goods repaired; and
(b) if in relation to the supply of Services, to refunding the price
of the Services in respect of which the breach occurred or
to providing the Services again.
10. WARRANTIES
10.1 COLRAIN warrants that the Goods, or Finished Goods will
correspond with the Specifications at the time of delivery, subject
to the following:
(a) COLRAIN is under no liability in respect of any defect in the
Goods or Finished Goods arising from any drawings,
designs or specifications supplied by the Buyer;
(b) COLRAIN is under no liability to the Buyer in respect of any
defect in Finished Goods arising for whatever reason other
than as a result of wilful damage to it by COLRAIN in
carrying out the Services; and
(c) COLRAIN is under no liability:
(i) in respect of any defect arising after delivery to the
Buyer from wilful damage, negligence, abnormal
working conditions, failure to follow COLRAIN’s
instructions, misuse or alteration or repair of the
Goods or Finished Goods without COLRAIN’s
approval;
(ii) for any defect caused during transportation; and
(iii) under the above warranty (or any other warranty,
condition or guarantee) if the total price for Goods or
Services has not been paid by the due date for
payment.
11. TERMINATION
11.1 COLRAIN may terminate this agreement or suspend any further
Services with immediate effect if:
(a) the Buyer breaches any of these Terms and Conditions; or
(b) the Buyer ceases to carry on a business, is unable to pay
its debts as they become due, is presented with a windingup
petition or if any step is taken to appoint a receiver,
receiver and manager, a trustee in bankruptcy, a
provisional liquidator, a liquidator, or an administrator to the
Buyer's assets, operations or business.
11.2 On termination of this agreement or suspension of the Services
under condition 11.1:
(a) if the Finished Goods have been delivered but not paid for,
the price will become immediately due and payable
notwithstanding any previous agreement or arrangement;
(b) COLRAIN has the right to recover and resell any Goods in
which title remains with COLRAIN; and
(c) the Buyer grants to COLRAIN a licence for access to the
Buyer's premises for the purpose of such recovery and to
examine the Goods.
11.3 Termination of this agreement or suspension of the Services does
not affect any accrued rights or remedies of COLRAIN.
12. FAILURE TO PAY
12.1 If the Buyer fails to pay any amount under this agreement on the
day it is due (Amount Overdue):
(a) the Buyer will pay interest on the Amount Overdue at the
rate fixed from time to time under the Penalty Interest Rates
Act 1983 (Vic) for the period from the day the amount fell
due until the date of payment;
(b) the Buyer will pay all of COLRAIN's costs of recovering
payment of the Amount Overdue as invoiced by COLRAIN
to the Buyer;
(c) COLRAIN may take a general lien on all of the Buyer's
property in its possession to cover the Amount Overdue;
and
(d) COLRAIN may appropriate any payment made by the
Buyer on any other account in payment of the Amount
Overdue.
13. INTELLECTUAL PROPERTY
13.1 All patents, trademarks, copyrights and any other intellectual
property in the Goods remain the sole property of COLRAIN at all
times and the Buyer agrees that it will not infringe any of
COLRAIN's intellectual property rights.
13.2 All drawings and technical specifications supplied or made
available to the Buyer by COLRAIN are subject to copyright and
strictly confidential. The Buyer must not:
(a) communicate any details of any drawings or technical
specifications to any third party without COLRAIN's prior
consent in writing; or
(b) make any copies of or use the drawings or technical
specifications for any purpose other than expressly
authorised in writing.
14. TAXES
14.1 In this condition 14, a word or expression defined in the A New
Tax System (Goods and Services Tax) Act 1999 (Cth) has the
meaning given to it in that Act.
14.2 If a party makes a supply under or in connection with this
agreement in respect of which GST is payable, the consideration
for the supply but for the application of this condition 14.2 (GST
exclusive consideration) is increased by an amount equal to the
GST exclusive consideration multiplied by the rate of GST
prevailing at the time the supply is made.
14.3 If a party must reimburse or indemnify another party for a loss,
cost or expense, the amount to be reimbursed or indemnified is
first reduced by any input tax credit the other party is entitled to
for the loss, cost or expense, and then increased in accordance
with condition 14.2.
14.4 Any consideration to be paid or provided for a supply made under
or in connection with this agreement, unless specifically described
in this agreement as GST inclusive, does not include an amount
on account of GST.
15. PRIVACY
15.1 The parties agree to be bound by all applicable Australian privacy
legislation, including that COLRAIN may use and disclose
personal information of the Buyer or any of the Buyer's directors,
officers, principal, guarantors, employees or agents for the
purposes of obtaining and/or maintaining a commercial and/or
consumer credit report.
16. GENERAL
16.1 COLRAIN may sub-contract the supply or delivery of the Goods,
the carrying out of the Services and/or the delivery of the Finished
Goods.
16.2 No waiver by COLRAIN of any breach of these Terms and
Conditions by the Buyer will be considered as a waiver of any
subsequent breach of the same or any other provision. A waiver
of a right, power or remedy must be in writing and signed by the
party giving the waiver.
16.3 A term or part of a term of this agreement that is illegal or
unenforceable may be severed from this agreement and the
remaining terms or parts of the terms of this agreement continue
in force.
16.4 The Buyer must not assign this agreement, or any rights under
this agreement, without the prior written consent of COLRAIN.
16.5 This agreement is governed by the law applicable in Victoria and
each party irrevocably and unconditionally submits to the
exclusive jurisdiction of the courts of Victoria.
I/we agree to be bound solely by these Terms and Conditions and I/we
further agree that any terms and conditions of purchase that may be
incorporated in any order, acceptance of quotation or any other
document delivered by me/us, shall unless those Terms and Conditions
are agreed to in writing by COLRAIN's duly authorised representative,
have no legal effect.
|