These are the terms and conditions upon which FENCE AND GATE SUPPLIES sells and quotes for the sale of goods or provision of services.
DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In these terms and conditions, unless the context otherwise requires:
i) “Buyer” means the person or persons named in the sales invoice or quotation.
ii) “Quotation” means the form of quotation submitted by the seller to the buyer in which these terms and conditions of sale and or are deemed to be incorporated.
iii) “Sales Invoice” means the sales invoice issued by the seller to the buyer in which these terms and conditions and or are deemed to be incorporated.
iv) “Seller” means COLORCOTE, GALAXY ACCESS SOLUTIONS or FENCE AND GATE SUPPLIES unless the sale is expressed to be made by the Seller as agent for a person named in the Sales Invoice or Quotation in which case the Buyer acknowledges that COLORCOTE, HANDI-FENCE or FENCE AND GATE SUPPLIES acts only as the agent of the person so named.
1.2 INTERPRETATION
i) Any special conditions on a Quotation or Sales Invoice shall, to the extent that they are inconsistent with these terms and conditions, take precedence over these terms and conditions.
ii) The expression ”Person” includes an individual, the estate of an individual, a body politic, a corporation, an association (incorporated or unincorporated) and a statutory or other authority.
iii) Words importing the singular shall include the plural (and vice versa).
2. GOVERNING TERMS AND CONDITIONS
These are the only terms and conditions which are binding on the Seller with the exception of those otherwise agreed to in writing by the Seller or which are imposed by statute and which cannot be excluded.
3. TERMS OF PAYMENT
Payment by the Buyer for goods or services delivered and accepted is required forthwith or, if a credit account has been established, within 30 calendar days of the end of the month in which the goods or services were invoiced or any other credit arrangement that may be agreed to in writing by the seller. If the Buyer fails to make payment in accordance with this clause, all amounts owing by the Buyer to the Seller on any account shall immediately become due and payable. Outstanding amounts shall bear interest at the rate of 2% per month.
4. INSPECTION AND ACCEPTANCE
The Buyer shall inspect all goods and services rendered upon delivery and shall within 48 hours of delivery give notice to the Seller of any matter or thing by which the Buyer alleges that the goods are not in accordance with the Buyer’s order. Failing such notice and, to the extent permitted by statute, the goods shall be deemed to have been delivered and accepted by the Buyer.
5. RETURNS
All returns must be approved by the Seller. Authorized returns must be freight pre-paid. The Seller will only be obliged to credit returned goods if they are in a saleable condition. The Seller reserves the right to charge a handling fee equal to 10% of the price of the goods returned. Products specifically purchased, manufactured, machined or cut to size or to the Buyer’s specification are not returnable.
6. QUOTATIONS
i) Unless previously withdrawn, a quotation is valid for 30 days or such other period stated therein. A quotation is not to be construed as an obligation to sell or provide services but merely an invitation to treat and no contractual relationship shall arise there from until the Buyer’s order has been accepted by the Seller.
ii) The Seller shall not be bound by any conditions attaching to the Buyer’s order or acceptance of a quotation and, unless such conditions are expressly accepted by the Seller in writing, the Buyer hereby acknowledges that such conditions are expressly negated.
7. PASSING OF PROPERTY AND RISK
i) Goods and/or services supplied by the Seller to the Buyer shall be at the Buyer’s risk immediately upon delivery to the Buyer, into the Buyer’s custody or at the Buyer’s direction (whichever is the sooner). The Buyer shall thereafter insure the goods at its costs against such risks as it thinks appropriate, shall note the interest of the Seller on the insurance policy and shall produce a certificate to this affect to the Seller upon request.
ii) Property of the goods supplied by the Seller to the Buyer pursuant to these terms and conditions shall not pass to the Buyer until those goods and/or services supplied by the Seller to the Buyer have been paid for in full.
iii) Until the goods have been paid for in full:
(a) the Buyer shall store the goods in such manner as to show clearly that they are the property of the Seller, and
(b) the Buyer may sell the goods, in the ordinary course of it’s business, as agent for the Seller and shall account to the Seller form the proceeds of sale (including any proceeds from insurance claims) which proceeds shall be kept in a separate bank account.
iv) The Buyer irrevocably authorizes the Seller at any time, to enter onto the premises at any time upon which:
(a) the Seller’s goods are stored to enable the Seller to:- inspect the goods: and/or- if the Buyer has breached these terms and conditions, reclaim the goods;
(b) the Buyer’s record pertaining to the goods are held to inspect and copy such records.
v) The Buyer and the Seller agree that the provisions of this clause apply notwithstanding any arrangement pursuant to which the Seller grants credit to the Buyer.
8. SUPPLY
The Seller reserves the right to suspend or discontinue the supply of goods and/or services to the Buyer without being obliged to give any reason for it’s action.
9. PART DELIVERIES
The Seller reserves the right to suspend or discontinue the supply of goods and/or services to the Buyer without being obliged to give any reason for it’s action.
10. INSTALLATION AND ERECTION
i) The Seller’s Quotation or Sales Invoice is made on a supply only basis. Installation, erection and/or commissioning (if any) is at the expense of the Buyer unless otherwise specified in writing by the Seller.
ii) Site specific workplace health and safety requirements including but not limited to, inductions requiring more than 15 minutes of total time, SWMS documentation and extra site equipment not usually required on a normal building site, are not included in the quotation unless specifically included and may result in an extra charge.
11. DIMENSIONS, PERFORMANCE DATA AND OTHER DESCRIPTIVE DETAILS
i) Photographs, drawings, illustrations, weights, dimensions and any other particulars accompanying, associated with or given in a quotation, the descriptive literature or a catalogue approximate the goods offered but may be subject to alteration without notice.
ii) Any performance data provided by the Seller is an estimate only and should be construed accordingly.
iii) Unless agreed to the contrary in writing, the Seller reserves the right to supply an alternative brand or substitute product where necessary.
12. SHIPMENT AND DELIVERY
i) Upon acceptance of an order the Seller will seek confirmation of the period of shipment or delivery. If any variation has occurred in the quoted period, the Seller will notify the Buyer. Unless the Buyer objects in writing within 48 hours of such notification to the Buyer, the period of shipment or delivery notified to the Buyer will be the contractual period for shipment or delivery.
ii) A delivery charge will apply to all deliveries with the exception of back-order deliveries that are part of an original order that has been partly fulfilled or when delivery has been specifically included in the quotation.
iii) No allowance will be made on the quoted price and no charge will be made by the Buyer to the Seller in the event of late delivery of goods and/or services unless specifically provided for in the quotation.
13. MANUFACTURER’S CHANGES
Where the Seller is acting as an agent for a manufacturer or supplier, the Seller shall not be liable for any alteration or variation in the goods made by the manufacturer or supplier.
14. SUBCONTRACTORS
The Seller reserves the right to substitute any service provided with the services of a sub-contractor. Any service thus provided will be subject to the sub-contractor’s terms and conditions of supply and the Seller will only act as a “go between” between the Buyer and the sub-contractor in the event of a dispute.
15. CONTINGENCIES
Any charge, duty, impost, sales tax or other expenditure which is not applicable at the date of Quotation or Sales Invoice but which is subsequently levied upon the Seller in relation to the Quotation or Sales Invoice as the result of the introduction of any legislation, regulation ore government policy, shall be to the Buyer’s account.
16. CHARGES BEYOND POINT OF DELIVERY QUOTED
Unless otherwise agreed in writing, if the Seller prepays freight, insurance, customs and import duties (if any) landing and delivery charges and all other charges in connection with shipment and delivery of the goods, then any such charges will be to the Buyer’s account. The Seller reserves the right to nominate the means of delivery.
17. FORCE MAJEURE
If in the performance or observance of it’s obligations the Seller is prevented, restricted or affected by reason of a force majeure including strike, lock out, industrial dispute, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond the reasonable control of the Seller, the Seller may, in it’s absolute discretion give prompt notice of such cause to the Buyer whereupon the Seller is excused from such performance or observance to the extent of such prevention, restriction or affectation.
18. DEFAULT OF BUYER
i) If these terms and conditions are not strictly observed by the Buyer, the Seller may in it’s absolute discretion, refuse to supply the Buyer and the Seller shall not be liable to the Buyer for any loss or damage the Buyer may sustain as a result of such refusal.
ii) The cost of collection of any monies due and payable by the Buyer, including the fees of any Mercantile Agent or Solicitor engaged by the Seller and any interest charge for late payment shall be payable by the Buyer.
19. BUYER’S CANCELLATION
Unless otherwise agreed in writing, the Buyer shall have no right to cancel an order that has been accepted by the Seller. If a right of cancellation is expressly reserved by the Buyer, such right of cancellation must be exercised by notice in writing from the Buyer to the Seller not later than 7 days prior to the estimated date of shipment by the manufacturer or the Seller as the case may be or in the case of products (or services) specially manufactured, altered, machined, cut to size or to the Buyer’s specification not later than 7 days prior to the commencement of manufacture, alteration, cutting or machining. Unless otherwise agreed between the Buyer and Seller, upon cancellation any deposit paid by the Buyer shall be forfeited to the Seller or manufacturer (as the case may be).
20. WARRANTY
i) Subject to clause 20(iii), all goods (and services) supplied are covered by such warranty as is specified by the manufacturer or service provider and supplied subject to the product standards detailed by the manufacturer or service provider.
ii) The Buyer shall immediately notify the Seller in writing of the discovery of any defects in the goods (or services). The Buyer shall not carry out any remedial work to alleged defective goods (or services) without first obtaining the written consent of the Seller to do so.
iii) The only conditions and warranties which are binding on the Seller (unless otherwise agreed to min writing) in respect of the state, quality or condition of the goods supplied by it to the Buyer are those imposed and required to be binding by statute and to the extent permitted thereby, the liability, if any, of the Seller arising from the breach of such conditions or warranties shall be at the Seller’s option be limited to and completely discharged by:
(a) the replacement of the goods (or services) or re-supply of the same by the Sellers;
(b) the repair of the goods (or services);
(c) the payment of the cost of replacement of the goods (or services); or
(d) the payment of the cost of repair of the goods (or services)
and otherwise all other conditions and warranties whether expressed or implied by law or otherwise in respect of the state, quality or condition of the goods which may apart from this clause be binding upon the Seller are expressly excluded and negated unless otherwise agreed to in writing by the Seller.
iv) The Buyer expressly acknowledges and agrees that it has not relied upon and the Seller is not liable for any advice given by the Seller, it’s agents or employees in relation to the suitability for any purpose of goods or materials supplied by the Seller.
v) In the case of fencing, gates and associated products, it is a recognized fact that ground movement may alter the appearance and/or operation of the supplied products. As this is beyond the control of the Seller, any adjustments or modifications that may be required to overcome this issue are not included in the warranty.
21. LIABILITY OF SELLER
Except as expressly provided herein and to the extent permitted at law:
i) the Seller shall not be under any liability, whether in contract, tort or otherwise in respect of goods (or services) delivered or for any injury, damage or loss resulting from such defects or from any wok done in connection therewith except to the extent that any statute applicable to these terms and conditions prevents the exclusion, restriction or modification of such terms and conditions;
ii) the Seller shall not be liable to the Buyer for any loss of profit howsoever arising nor shall the Seller be under any liability whether in contract, tort or otherwise nor for any injury, damage or loss whether consequential or otherwise save as is expressly provided in these terms and conditions;
iii) the Buyer indemnifies the Seller against any liability to or action by a third party for infringement of a patent, registered design, trademark or copyright in respect of goods manufactured or altered to a Buyer’s specification; and
iv) all goods are supplied in accordance with usual industry standards and the Seller shall not be liable to the Buyer for the condition or quality of goods which comply to these standards.
22. PRIVACY ACT 1988
i) Where the Buyer is an individual, the Buyer agrees that the Seller may obtain a consumer credit report containing information about the Buyer from a credit reporting agency for the purpose of assessing the Buyer’s application for commercial credit.
ii) Personal information about any individual named in Seller’s Quotation or Sales Invoice or Credit application may be used by the Seller to investigate, assess and process an application for credit (including investigating the Buyer’s and/or the Buyer’s companies or business credit worthiness). Certain of the information provided in an application for credit may be disclosed to our bankers, other credit providers or a credit reporting agency, and we may collect information about you from the sources, for the purpose stated above. We may also collect and share information for the purposes stated above.
