Limitations Of Liability
In these terms and conditions:
- "the Seller" means Pacific Oz-tralasia Pty Ltd (ACN 120 695 141) of 3/5 Dingley Avenue, Dandenong, 3175.
- "the Buyer" means the purchaser of the goods.
- "the goods" means the products and, if any, services the subject of an order.
- Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Trade Practices Act 1974) and which by law cannot be excluded, restricted or modified.
- Our PLISC Brand
These terms and conditions (which shall only be waived in writing signed by the Seller) shall prevail over all conditions of the Buyer's order to the extent of any inconsistency.
3. Terms of Sale
The goods and all other products sold by the Seller are sold on these terms and conditions.
4. The Seller's Quotations
Unless previously withdrawn, the Seller's quotations are open for acceptance within the period stated in the quotation or, when no period is so stated, for thirty (30) days from the date of the quotation. The Seller reserves the right to refuse any order based on this quotation within seven (7) days after the receipt of the order.
The Buyer waives any claim for shortage of any goods delivered if a claim in respect of the short delivery has not been lodged with the Seller within seven (7) days from the date of receipt of the goods by the Buyer.
- The goods supplied are subject to delivery charges unless otherwise stated in writing.
- The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery.
- The Seller is not liable for any loss, damage or delay occasioned to the Buyer arising from late or non-delivery.
- Without being liable to pay indemnity, the Seller reserves the right to cancel the contract or agreement to supply entirely or in instalments or to extend the deliver time when and if required.
- The Seller may at its option deliver the goods to the Buyer in any number of instalments unless there is agreement between the parties prior to acceptance of the order to the effect that the Buyer will not take delivery by instalments.
- If the Seller delivers any of the goods by instalments, and any one of those instalments is defective for any reason:
- It is not a repudiation of the contract of sale formed by these conditions; and
- The defective instalment is a severable breach that gives rise only to a claim for compensation.
- Upon delivery of any perishable goods and acceptance by the Buyer of any perishable goods, the Buyer hereby relieves the Seller from all claims relating to the quality of the perishable goods.
- Unless otherwise stated all prices quoted by the Seller are net, exclusive of Goods and Services Tax (GST).
- Prices quoted are those ruling at the date of issue of the quotation and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of weights, cost of materials and other charges affecting the cost of production ruling on the date it is made.
- The Seller reserves the right to vary the price quoted after that price has been accepted by the Buyer.
- If the Seller makes any alterations to the price of the goods after acceptance of the quotation by the Buyer, these alterations are for the Buyer's account. In the event of an alteration to the price of the goods after acceptance of the quotation by the Buyer, the Seller will give the Buyer written notice of the alteration and a new quotation. The Seller's quotation will be open for acceptance by the Buyer for thirty (30) days from the date of the new quotation. If the Seller does not accept the quotation within this period, the offer shall be deemed to have been rejected.
Upon acceptance by the Buyer of the Seller's quotation, the Buyer shall pay to the Seller the deposit amount of fifty per cent (50%) of the quotation amount unless otherwise stated in writing.
9. Terms of Payment
- The purchase price in relation to the goods is payable net and payment of the price of the goods plus GST must be made on or before delivery of the goods into the Seller's nominated bank account unless other terms of payment are expressly stated in these conditions in writing.
- A monthly credit account may be established by the Buyer with the Seller. A monthly credit account may only be established in writing signed by the Seller. If a monthly credit account is established, payment shall be required to be made to the Seller within thirty (30) days of invoice date.
- In the event that payment is not made in accordance with the agreed trading terms, the Seller will charge the Buyer interest on the amount due at the rate of 2% per month until the amount due is paid.
10. Payment by Letter Of Credit
- Payment for the goods ordered by the Buyer and delivered by the Seller shall be made to the Seller by the Buyer in the form of a confirmed irrevocable without recourse letter of credit or bank guarantee in favour of the Seller for an amount payable in Australian dollars and in the form as agreed by the Seller in writing and such letter of credit or bank guarantee shall be delivered to the Seller within thirty (30) days after written advice that the order for the goods by the Buyer have been delivered by the Seller in accordance with the specifications in the order.
- The Buyer shall advise the Seller of the relevant payment details not later than fifteen (15) days prior to the scheduled delivery date of the goods and no other method of payment shall be acceptable unless otherwise agreed in writing.
11. Payment of Other Expenses
- The cost of any special packing and packing materials used in relation to the goods are at the Buyer's expense notwithstanding that such cost may have been omitted from any quotation.
- The Buyer shall pay all and any import duties, levies on imports and/or any sales, use, excise, gross receipts, value added, property or other taxes or duties of any kind whatsoever assessed upon or relating in any way to the goods ordered by the Buyer irrespective of the person, nation, state or authority requiring payment thereof.
12. Claims for Loss or Damage in Transit
- Where loss or damage is discovered by the Buyer on receipt of the goods, the Buyer must notify the Seller of the goods lost or damaged in writing within seven (7) days of the date of receipt of the goods by the Buyer.
- The Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to goods in transit caused by any event of any kind by any person when the carrier used to deliver the goods has been nominated by the Buyer (whether or not the Seller is legally responsible for the person who caused or contributed to that loss or damage).
13. Returned goods
- The Seller is not under any duty to accept goods returned by the Buyer and will do so only on terms to be agreed in writing in each individual case.
- If the Seller agrees to accept returned goods from the Buyer under paragraph a) of this clause, the Buyer must return the goods to the Seller at the Seller's place of business referred to at the head of these terms and conditions within fourteen (14) days of receipt of the goods by prepaid freight post. The goods returned must be received by the Seller in the same condition and packaging as when the goods were dispatched to the Buyer by the Seller.
- The guarantee of the manufacturer of the goods is accepted by the Buyer and is the only guarantee given to the Buyer in respect of the goods. The seller agrees to assign to the Buyer on request made by the Buyer the benefit of any warranty or entitlement to the goods that the manufacturer has granted to the Seller under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
- The Buyer must only use the goods for the purpose for which they are intended and comply with all directions provided by the Seller to the Buyer in respect of the use of the goods. Only competent trained staff can handle and use the goods.
- The Seller is not liable for and the Buyer releases the Seller from any claims in respect of faulty or defective design of any goods supplied unless such design has been wholly prepared by the Seller and the responsibility for any claim has been specifically accepted by the Seller in writing.
- Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly installation, materials or workmanship or otherwise are expressly excluded. The seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the goods or arising out of the Seller's negligence or in any way whatsoever.
15. Rights to the Goods
- 15.1 In connection with the goods while they remain the property of the Seller, the Buyer agrees with the Seller that:
- 15.1.1 the Buyer has no right or claim to any interest in the goods to secure any liquidated or unliquidated debt or obligation the Seller owes to the Buyer;
- 15.1.2 the Buyer cannot claim any lien over the goods;
- 15.1.3 the Buyer will not create any absolute or defeasible interest in the goods in relation to any third party except as may be authorised by the Seller;
- 15.1.4 where the Buyer is in actual or constructive possession of the goods:
- 126.96.36.199 the Buyer will not deliver them or any document of title to the goods to any person except as directed by the Seller; and
- 188.8.131.52 it is in possession of the goods as a bailee of those goods and owes the Seller the duties and liabilities of a bailee.
- 15.2 In connection with the goods, the Seller states to the Buyer that:
- 15.2.1 the Seller has the right to supply the goods to the Buyer;
- 15.2.2 the activities of the Buyer in supplying the goods do not infringe the rights of the owner of the goods (where the Seller is not the owner of the goods);
- 15.2.3 if the goods are not owned by the Seller, that the Seller is authorised to supply the goods to the Buyer.
- 15.3 The Seller and the Buyer agree that:
- 15.3.1 the property of the Seller in the goods remains with the Seller until the Seller has been paid in full for the goods under all individual contracts for the supply of the goods between the Seller and the Buyer;
- 15.3.2 the Buyer is a bailee of the goods until such time as property in them passes to the Buyer and that this bailment continues in relation to each of the goods until the price of the goods has been paid in full;
- 15.3.3 pending payment in full for the goods, the Buyer:
- 184.108.40.206 must not supply any of the goods to any person outside of its ordinary or usual course of business;
- 220.127.116.11 must not allow any person to have or acquire any security interest in the goods;
- 18.104.22.168 must insure the goods for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Buyer carries on business;
- 22.214.171.124 must not remove, deface or obliterate any identifying plate, mark or number on any of the goods.
- 15.4 Despite clause 15.3, if the Buyer supplies any of the goods to any person before all moneys payable by the Buyer have been paid to the Seller (and have not been claimed or clawed-back by any person standing in the place of or representing the Buyer), the Buyer agrees that:
- 15.4.1 it holds the proceeds of re-supply of the goods on trust for and as agent for the Seller immediately when they are receivable or are received;
- 15.4.2 it must either pay the amount of the proceeds of re-supply to the Seller immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for the Seller;
- 15.4.3 any accessory or item which accedes to any of the goods by an act of the Buyer or of any person at the direction or request of the Buyer becomes and remains the property of the Seller until the Seller is paid in accordance with clause 15.3.1 when the property in the goods (including the accessory) passes to the Buyer;
- 15.4.4 if the Buyer fails to pay for the goods within the period of credit (if any) extended by the Seller to the Buyer, the Seller may recover possession of the goods at any site owned, possessed or controlled by the Buyer and the Buyer agrees that the Seller has an irrevocable licence to do so.
16. Goods sold
All goods to be supplied by the Seller to the Buyer are as described on the order agreed by the Seller and the Buyer and the description on such order modified as so agreed prevails over all other descriptions including any specification or enquiry of the Buyer.
No order may be cancelled except with consent in writing and on terms which will indemnify the Seller against all losses.
18. Place of contract
- The contract for sale of the goods is made in the state or territory of Australia from which this document is issued.
- The parties submit all disputes arising between them to the courts of such state or territory and any court competent to hear appeals from those courts of first instance.