Terms and Conditions

Terms and Conditions

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the Goods and/or the Services, being COLRAIN's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in COLRAIN's published price list current at the date of acceptance of the order.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.

2.1 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.

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.

4.1 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.

5.1 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.

6.1 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.

7.1 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.

8.1 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.

9.1 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.

10.1 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.

11.1 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.

12.1 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.

13.1 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.

14.1 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.

15.1 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.

16.1 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.