Ultimation Pty Ltd – Terms & Conditions of Trade
1.1 “Supplier” means Ultimation Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Ultimation Pty Ltd.
1.2 “Customer” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Goods” means all Goods or Services supplied by the Supplier to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between the Supplier and the Customer in accordance with clause 4 below.
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the Supplier’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Supplier.
2.3 None of the Supplier’s employees, agents, transport contractors or representatives are authorised to make any representations, statements, conditions or agreements not expressed by the manager of the Supplier in writing, nor is the Supplier bound by any such unauthorised statements.
3. Change in Control
3.1 The Customer shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.
4. Price and Payment
4.1 At the Supplier’s sole discretion the Price shall be either:
(a) as indicated on any invoice provided by the Supplier to the Customer; or
(b) the Price as at the date of delivery of the Goods according to the Supplier’s current price list; or
(c) the Supplier’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 The Supplier reserves the right to change the Price if any variation from the plan of scheduled Services or specifications of the Goods (including, but not limited to, any variation as a result of fluctuations in currency exchange rates or increases to the Supplier in the cost of taxes, levies, materials and labour) will be charged for on the basis of the Supplier’s quotation and will be shown as variations on the invoice.
4.3 At the Supplier’s sole discretion a deposit may be required.
4.4 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s
determined by the Supplier, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) thirty (30) days following the end of the month in which a statement is posted and/or emailed to the Customer’s address or address for notices;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Customer by the Supplier.
4.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card – MasterCard & Visa only (plus a surcharge of up to three and one third percent (3.3%) of the Price), or by any other method as agreed to between the Customer and the Supplier.
4.6 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any
other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at the Supplier’s address; or
(b) the Supplier (or the Supplier’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address, and:
(i) the Supplier (in its absolute discretion) reserves the right to arrange transport by any means;
(ii) delivery shall be made during standard business hours to the agreed delivery point (or location); (iii) delivery shall be made as close to the delivery point as is safe and prudent to do so;
(iv) the unloading of the Goods at the delivery point is the Customer’s responsibility irrespective of any third party that may unload the Goods, at all times all risk remains with the Customer. The Supplier may, without liability to the Customer, unload the Goods at the delivery point on the Customer’s request, or where the Customer is absent at the time of delivery, the Customer thereby releases and discharges the Supplier from (and against) any claim, cause of action or liability arising out of the unloading of Goods at the delivery point.
5.2 At the Supplier’s sole discretion the cost of delivery is in addition to the Price.
5.3 The Customer must take delivery by receipt or collection 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 Supplier
shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.4 The Supplier may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and
paid in accordance with the provisions in these terms and conditions.
5.5 Any time or date given by the Supplier to the Customer is an estimate only. The Customer must still accept
delivery of the Goods even if late and the Supplier will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
6.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
6.3 If the Customer requests the Supplier to leave Goods outside the Supplier’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
7.1 The Supplier and the Customer agree that ownership of the Goods shall not pass until: (a) the Customer has paid the Supplier all amounts owing to the Supplier; and
(b) the Customer has met all of its other obligations to the Supplier.
7.2 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
7.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with clause 7.1 that the Customer is only a Bailee of the Goods and must return the Goods to the Supplier on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Supplier and must pay to the Supplier the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for the Supplier and must pay or deliver the proceeds to the Supplier on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of the Supplier and must sell, dispose of or return the resulting product to the Supplier as it so directs.
(e) the Customer irrevocably authorises the Supplier to enter any premises where the Supplier believes the Goods are kept and recover possession of the Goods.
(f) the Supplier may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Supplier.
(h) the Supplier may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
12.1 The Supplier may cancel any contract to which these terms and 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 Supplier shall repay to the Customer any money paid by the Customer for the Goods. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.
12.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).
12.3 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stockist items, will definitely not be accepted once production has commenced, or an order has been placed.
14. Unpaid Seller’s Rights
14.1 Where the Customer has left any item with the Supplier for repair, modification, exchange or for the Supplier to perform any other service in relation to the item and the Supplier has not received or been tendered the whole of any moneys owing to it by the Customer, the Supplier shall have, until all moneys owing to the Supplier are paid: (a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
- 14.2 The lien of the Supplier shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Supplier having been obtained against the Customer.
- 15.1 The failure by the Supplier to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Supplier’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
- 15.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Western Australia in which the Supplier has its principal place of business, and are subject to the jurisdiction of the courts in that state.
- 15.3 Subject to clause 10 the Supplier shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
- 15.4 The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
- 15.5 The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
- 15.6 The Customer agrees that the Supplier may amend these terms and conditions at any time. If the Supplier makes a change to these terms and conditions, then that change will take effect from the date on which the Supplier notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Supplier to provide Goods to the Customer.
- 15.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
- 15.8 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, it is not insolvent and that this agreement creates binding and valid legal obligations on it.
- 15.9 These terms and conditions set out the entire agreement between the parties in relation to their subject matter.