Terms And Conditions
Crowley & Grouch Imports Pty Ltd (ABN 69 120 070 760) of PO Box 218 Mittagong NSW 2575Australia(C&G) is a supplier of various household products (Products). C&G has agreed to sell and the Buyer has agreed to buy Products by orders placed from time to time on the following terms and conditions which have been agreed by C&G and the Buyer (Terms and Conditions).
1.1 The Buyer must order Products from C&G in writing using C&G’s order form or the Buyer’s form of purchase order as approved by C&G (Order Form). Each Order Form used must specify the date of placement of the order, the Buyer’s full details, the Buyer’s desired Delivery Address, the type and quantity of Products ordered, the method by which the Buyer will make payment and must be signed by the Buyer.
1.2 C&G may decline any order received from the Buyer within three (3) days of receipt of the order by C&G. Any order not so declined binds the Buyer.
1.3 All orders placed by the Buyer will be governed by these Terms and Conditions, subject to clause 4.
2. Delivery and Inspection
2.1 C&G will ensure the Products are safely and securely packed for transportation to the Buyer at the Delivery Address specified by the Buyer. The costs of packing and transportation are to be paid by the Buyer and will be invoiced by C&G.
2.2 The parties acknowledge and agree that C&G is not responsible for any loss or damage to the Products in transit. Risk in the Products passes to the Buyer upon collection of the Products from C&G by the delivery courier.
2.3 Title in the Products free from encumbrances passes to the Buyer upon the later of delivery of the Products to the Buyer or receipt of payment in full by C&G from the Buyer for the Products.
2.4 Upon delivery of the Products to the Buyer, the Buyer must conduct a thorough examination of the Products and within seven (7) days of such delivery to the Buyer:
(a) if the Buyer is of the reasonable opinion that the Products do not comply with the conditions of these Terms and Conditions or are in some other way faulty or defective the Buyer must submit for C&G’s consideration a written request to return the Products with sufficient substantiation of the Buyer’s reasons for rejection. In such event C&G will respond to the request in accordance with its “Returns Policy” current at the time the order was placed; or,
(b) must accept the Products without further formality.
3.1 The price of the Products payable by the Buyer is the price published in C&G’s current published price list issued from time to time by C&G. C&G will give the Buyer four (4) week’s written notice of any increase in prices and the increased prices will apply to all Products ordered for delivery after the specified date of increase.
3.2 Subject to clause 3.3, payment for the Products must be made prior to delivery and the Products will not be dispatched for delivery until payment in full has been received by C&G.
3.3 C&G may in its sole discretion agree in writing with the Buyer to allow payment to be made after delivery of the Products.
3.4 If the Buyer does not pay any amount owing to C&G under these Terms and Conditions within twenty eight (28) days of the date that amount is due then:
(a) all money that the Buyer owes to C&G on any account becomes immediately payable despite any previously agreed credit conditions;
(b) C&G may suspend or cancel the delivery of any outstanding orders of Products;
(c) the Buyer must pay on demand interest on the outstanding amount, commencing on the day after the due date for payment and ending on the date when payment is received by C&G and charged at an interest rate to be calculated by adding 2 (two) percentage points to the rate applicable for 90 (ninety) day bank bills as specified by the Reserve Bank of Australia on each day that the payment is due; and
(d) the Buyer must pay on demand all collection charges, including without limitation all debt collector’s charges, and all solicitor’s charges incurred by C&G in collecting the outstanding amount from the Buyer.
3.5 All payments due to C&G under these Terms and Conditions must be paid in Australian dollars and may be paid in cash, by bank cheque, by credit card or by electronic funds transfer.
4.1 These Terms and Conditions will apply to all orders placed by the Buyer after the date of these Terms and Conditions and will continue to apply until replaced by a new set of terms and conditions provided to the Buyer by C&G.
4.2 Without prejudice to any other rights or remedies it may have, C&G may refuse to supply the Products to the Buyer at any time if the Buyer breaches any material term of these Terms and Conditions or any of the terms regarding payment in these Terms and Conditions.
5. Buyer Obligations
5.1 The Buyer:
(a) acknowledges that C&G is not the manufacturer of the Products and agrees that it will not hold C&G out as the manufacturer of the Products;
(b) agrees to comply with all rules, regulations, directions and legal requirements associated with its use or re-sale of the Products;
(c) will ensure that any labels, leaflets, guides or other instructions or manufacturer’s recommendations delivered with the Products are included with the Products upon their subsequent sale by the Buyer; and,
(d) will not make any false, misleading, deceptive or misdescriptive representations or statements in respect of the Products to any person.
5.2 The Buyer will indemnify C&G against all losses, damages, expenses and legal costs (on a solicitor and own client basis and whether incurred by or awarded against C&G) that C&G may sustain or incur as a result, whether directly or indirectly, of any breach by the Buyer of these Terms and Conditions (including all loss of profits and other consequential loss). This indemnity survives expiration or termination of these Terms and Conditions.
5.3 If the Buyer breaches these Terms and Conditions, is or becomes insolvent or bankrupt, enters into administration, enters into a deed of arrangement or composition with its creditors, is subject to an order for its winding up or dissolution, has a receiver or administrator or similar official appointed over any of its assets or undertakings, or threatens not to pay any money due to C&G under these Terms and Conditions, all amounts paid by the Buyer to C&G will be retained by C&G without prejudice to the Buyer’s obligations under these Terms and Conditions and without prejudice to C&G’s rights to any other available remedy.
6. Exclusion of Implied Conditions
6.1 The law implies various conditions and warranties that may apply to C&G’s supply of the Products to the Buyer in accordance with these Terms and Conditions. C&G excludes all such conditions and warranties (including without limitation any conditions and warranties in relation to the state, fitness or quality of the Products) to the fullest extent permitted by law.
6.2 C&G’s liability under any non-excludable implied condition or warranty is limited to the lowest of the cost of replacing the Products, acquiring equivalent products or having the Products repaired.
6.3 The Buyer hereby warrants and acknowledges that in agreeing to be bound by these Terms and Conditions for the provision of goods, the Buyer has relied on its own skill and judgement and has not relied upon any representations made by C&G or on C&G’s behalf.
7. Liability & Indemnity
7.1 To the fullest extent permitted by law, the Buyer agrees to release, discharge and indemnify C&G, and C&G’s employees and agents, from and against all claims or demands made against C&G and for any loss or damage caused to the Buyer or any third party, whether by way of death of or personal injury to any person, damage to property, delay or financial loss arising from or incidental to the use of the Products (whether caused by C&G’s negligence or otherwise). Such release, discharge and indemnity of C&G, and C&G’s employees and agents, shall only apply provided that reasonable steps have been taken by C&G, its employees or agents during the term of these Terms and Conditions to prevent injury, damage or loss to the Buyer or any third party.
7.2 The right of C&G to be indemnified under clause 7.1 is in addition to, and not exclusive of, any other right, power or remedy provided by law.
7.3 In no circumstances is C&G to be liable for any indirect or consequential loss or damage suffered by the Buyer or any other person arising out of, in connection with or relating to the performance, breach, termination or non-observance of these Terms and Conditions by C&G. Each party agrees that loss of profits or loss of business opportunities, however occurring, will constitute indirect or consequential loss or damage.
7.4 This clause 7 will survive the expiration or termination of these Terms and Conditions.
The parties will comply with the privacy laws ofAustraliain respect of all personal information collected or disclosed by either party during the performance of their respective obligations under these Terms and Conditions.
9. Goods and Services Tax
9.1 Expressions used in this clause 9 have the same meaning given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (the “GST Law”).
9.2 Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under these Terms and Conditions are inclusive of GST. Subject to clause 9.3, if GST is imposed on any Taxable Supply made under or in connection with these Terms and Conditions (a “GST Amount”), the recipient must pay to the supplier the GST Amount in addition to and (unless otherwise agreed) at the same time as payment for the Taxable Supply is required to be made under these Terms and Conditions.
9.3 Unless otherwise agreed, the recipient of a Taxable Supply will have no obligation to make any payment in respect of that Taxable Supply until the supplier has provided the recipient with a valid Tax Invoice for that Taxable Supply.
10. Force Majeure
If C&G is unable to observe or perform any obligation or is delayed or interrupted in the performance of its obligations under these Terms and Conditions by reason of any act of God, act of terrorism, revolution, civil strife, industrial action, fire, flood, war, public disaster, plague or epidemic, delay in transportation or other cause, event or circumstance outside that party’s control which is not due to any lack of reasonable prudence or foresight, then C&G is deemed not to be in breach of these Terms and Conditions and is not liable to the Buyer. C&G will endeavour to notify the Buyer as soon as practicable of the nature of the event or circumstance. Once such notification is given, the parties agree to meet at the request of any party and without prejudice to their legal rights and obligations, and will seek to resolve in good faith any problems encountered.
Unless otherwise agreed in writing by the parties, any notice to be given under these Terms and Conditions to either party shall be delivered or sent by hand, emailed, facsimile or registered first-class post to the party’s address as set out in the Order Form (or such other address as may be notified in writing). Any notice sent by hand or facsimile shall be deemed delivered on the first business day after dispatch and if sent by post to an address withinAustralia, on the second business day after dispatch and if sent by post to an address outsideAustralia, on the fifth business day after dispatch .
12. Dispute Resolution
12.1 In the event of a dispute between the parties regarding the subject matter and terms of, or the transactions contemplated by, these Terms and Conditions (“Dispute”):
(a) the parties agree that neither of them will commence mediation or court proceedings (except proceedings seeking interlocutory relief) in respect of that Dispute unless it has first complied with this clause; and
(b) the parties agree that they must act reasonably and exercise the utmost good faith whilst endeavouring to negotiate a just and equitable resolution to the Dispute during the period of 14 (fourteen) days after one party notifies the other of a Dispute (“Initial Period”).
12.2 If the Dispute cannot be resolved prior to the expiry of the Initial Period, the Dispute must be referred for mediation, by either party, to a mediator agreed on by the parties or if the parties are unable to agree on a mediator within 14 (fourteen) days after the end of the Initial Period, a mediator nominated by the then President of the Law Society of New South Wales.
12.3 The parties agree to exercise the utmost good faith whilst endeavouring to negotiate a resolution to the Dispute during a period of 2 (two) calendar months from the date of appointment of the mediator (the “Mediation Period”). The role of any mediator is to assist in negotiating a resolution of the Dispute and any mediator may make recommendations to the parties. Unless the parties specifically agree in writing, the mediator cannot determine the Dispute and cannot make any decision that is binding on any party.
12.4 Any information or documents disclosed by a party under this clause must be kept confidential by the other party and may not be used by the other party for any reason except to attempt to resolve the Dispute.
12.5 Each party must bear its own costs of complying with this clause and the parties must bear equally the costs of any mediator engaged.
12.6 If after the Mediation Period, the parties have not reached a resolution and the parties have complied with clauses 12.1 to 12.5, any party may terminate the dispute resolution process by giving notice to the other party and the parties may then seek any other remedies available to them.
12.7 If in relation to a Dispute, a party breaches any provision of clauses 12.1 to 12.5, the other party need not comply with clauses 12.1 to 12.5 in relation to that Dispute.
13.1 No waiver by a party of any breach of any of the provisions of these Terms and Conditions will be construed as a waiver of any preceding or succeeding breach of any provision of these Terms and Conditions.
13.2 These Terms and Conditions and each Order Form constitute the entire agreement between the parties and supersedes any prior or contemporaneous agreement, oral or in writing. There are no promises, terms, conditions or obligations, oral or written, expressed or implied other than those contained in these Terms and Conditions and each Order Form.
13.3 These Terms and Conditions may only be amended in writing signed by the parties.
13.4 If any provision of these Terms and Conditions is determined by any statute or court having jurisdiction to be illegal, invalid, void or voidable that provision will be deemed to be deleted to the same extent and effect as if it was never incorporated, and the remainder of these Terms and Conditions will continue in full force and effect.
13.5 These Terms and Conditions will be binding upon and will continue for the benefit of the parties, and their respective successors (including but without limitation, in the case of natural persons, their legal personal representatives) and permitted assigns.
13.6 Nothing in these Terms and Conditions will be construed as constituting a partnership, joint venture, employment or agency relationship between the parties.
13.7 These Terms and Conditions are governed by the laws of the State ofNew South Wales,Australiaand the parties agree to submit to the non-exclusive jurisdiction of courts of that State.