Terms of Sale
VINIDEX PTY LTD: STANDARD TERMS AND CONDITIONS OF SALE
In these conditions:
- “Vinidex” shall mean “Vinidex Pty Limited”;
- the word “person” shall be deemed to include a corporation, words importing the singular or plural number shall be deemed to include the plural or singular number respectively and words importing the masculine gender only shall include the feminine or neuter gender as the case may require;
- “Goods” shall mean Goods agreed to be supplied or supplied by Vinidex to the Buyer;
- “Buyer” shall mean a person who purchases the Goods or a person to whom a quotation for supply of the Goods is submitted.
All quotations for the supply of Goods, however made, are not offers and are provided only as indicative statements of current price levels.
Except where a fixed price or a price fluctuation formula is stated in a form of acceptance of order, all prices are subject to change by Vinidex without notice and shall be those ruling at the date of dispatch. Where a firm price is stated in the form of acceptance of order then, unless otherwise stated, the price therein shall rule for thirty (30) days from the date of the acceptance and, thereafter, Vinidex reserves the right to vary the price as it determines at any time prior to delivery of the Goods pursuant to Clause 9. All quoted and list prices are ex-GST which shall be included at time of sale.
Acceptance of Orders
Orders for Goods shall only be deemed to have been accepted by Vinidex if:-
- accepted in writing by Vinidex; or
- delivery of the Goods in accordance with Clause 9 hereof is made to the Buyer.
Terms of Payment
Unless otherwise stated in Vinidex’s acceptance of order, Terms of Payment for Goods are cash at the time the order is placed and, where credit is not given to the Buyer, payment shall be made at the time that the order is placed. All payments shall be made in Australian currency. Where Vinidex has agreed to give the Buyer credit, payment shall, unless otherwise stated in its acceptance or order, be made by the Buyer within thirty (30 days of the date of delivery of the Goods. Vinidex may at any time without notice withdraw any credit facility and require payment upon an order being placed. All approvals to the granting of credit shall be in writing signed by a Director of Vinidex or their duly authorised representative and, unless approved in such manner, credit shall not be deemed to have been given to a Buyer for the purposes hereof.
If a payment due by the Buyer is not made within thirty (30) days of the date due for payment, Vinidex shall without further notice to the Buyer be entitled to charge interest on the monies so due on and from the expiration of the thirty (30) day as aforesaid at the rate of 12% per annum. Time is of the essence so far as payment of monies owing by the Buyer to Vinidex is concerned.
- Until Vinidex has been paid in full for Goods supplied by it to the Buyer:
- Vinidex remains the owner of those Goods and the Buyer is only a bailee;
- Buyer must store the Goods separately from any other Goods, keep them readily identifiable as Vinidex’s Goods and maintain proper records of any sale or disposal of the Goods;
- Buyer bears all risk in respect of the Goods from delivery and must fully insure them;
- Buyer will not sell the Goods except in the ordinary course of business;
- Buyer will hold the proceeds of any sale or disposal of the Goods to the extent of the amount due to Vinidex in a separate account for Vinidex’s benefit and promptly pay that amount to Vinidex; and
- Vinidex shall take a security interest in the Goods to the extent that it secures all and any unpaid purchase price (a “purchase money security interest”) and register its purchase money security interest pursuant to the Personal Property Securities Act, 2009.
- At all times Buyer will allow Vinidex access to the premises occupied by Buyer during normal business hours and to the Goods in order to inspect the Goods and retake possession of the Goods at any time prior to payment in full of the price payable for the Goods supplied by Vinidex to the Buyer and for other monies payable by the Buyer to Vinidex on any other account whatsoever. Buyer acknowledges that this access shall be full, free and unhindered and shall not be or constitute trespass by Vinidex, its servants or agents. Buyer indemnifies and agrees to keep indemnified Vinidex for any liability or loss it suffers in seeking to exercise its said rights of access and retaking possession of the Goods.
Title and Risk
Unless otherwise stated in the form of acceptance of order, the Goods shall remain the property of Vinidex until the purchase price has been paid in full to Vinidex, provided that the risk of the Goods shall pass to the Buyer upon the delivery to the Buyer in accordance with Clause 9 hereof.
Delivery and Receipt of the Goods
Delivery of the Goods to the Buyer or to such person (including a carrier) or destination nominated by the Buyer and agreed by Vinidex shall constitute both delivery to and receipt of the Goods by the Buyer. Unless otherwise stated in Vinidex’s acceptance of order the Buyer shall arrange and pay for the cost of the transportation of the Goods and shall pay the cost of all charges necessarily incidental to the transportation of the Goods, including but without limiting the generality of the preceding, insurance in respect of the Goods.
Defects and Delivery Date
In the event that the Goods or any of them or any parts thereof have defects or have been damaged, or, in the event that there are shortages in number, then the Buyer shall, within seven (7) days of the date of delivery, time being of the essence, notify Vinidex of the same in writing giving full particulars to the claim. Thereafter, Vinidex shall investigate the Buyer’s claim and in the event that Vinidex reasonably determines that the defects damage or shortages as the case may be were in existence prior to delivery to the Buyer then Vinidex shall, at no charge to the Buyer, replace the Goods in question or otherwise remedy the defect or damage or makeup for the shortages as the case may be.
Vinidex shall endeavour to meet delivery dates (if any) specified by the Buyer but shall not be liable for any loss, damage or harm of any nature whatsoever suffered by the Buyer or any other person arising directly or indirectly from delivery of the Goods not being effected by any delivery date specified as aforesaid.
Statutory Warranty and Limitation of Liability
- Warranties that may be implied by the Competition and Consumer Act, 2010, or any other legislation applicable to the Goods are hereby expressly excluded to the extent that such exclusion is not prohibited by such legislation.
- Vinidex’s liability to the Buyer for any breach of its obligations hereunder in relation to delivery of the Goods, defective Goods, damaged Goods referred to in Clause 10, or any warranty implied by law (other than a warranty as to title) shall in all cases be limited to an amount equal to the lesser of (as determined by Vinidex);
- the cost of having the Goods repaired; or
- the cost of replacing the Goods; or
- the cost of obtaining and supplying equivalent goods.
- Notwithstanding any other provision of these terms and conditions and any additional terms to which Vinidex and the Buyer have agreed apply to a supply of Goods, Vinidex shall not be liabile;
- for special, indirect or consequential loss or damage whatsoever in connection with the supply and use of the Goods, including but not limited to any loss of revenue or profits which would otherwise be derived from the use of the Goods; or
- in tort including any tortious act, neglect or default of Vinidex, its servants or agents, in connection with the supply, delivery and use of the Goods.
Goods manufactured to drawings and/or specifications and/or designs provided by or on behalf of the Buyer are not returnable to Vinidex under any circumstances and the Buyer agrees to indemnify and to keep indemnified Vinidex from and against all costs, losses and damages claimed in relation to any design defect in such Goods and any third party claim that the Goods as manufactured infringe any patent, registered design, copyright or common law intellectual property right of any person.
Assignment by Buyer
The Buyer shall not assign or purport to assign its rights and obligations herein to any third party without the prior consent in writing of Vinidex.
No failure or omission to carry out or observe any of the conditions of this contract shall give rise to any claim against Vinidex or result in a breach of this contract if such failure or omission arises by reason of delay or inability to obtain materials, fire, storm or other action of the elements, accidents, government restrictions or from other causes whether like or unlike the foregoing which are unavoidable or otherwise beyond the control of Vinidex.
Failure by Vinidex to insist upon the performance of any one or more of the conditions hereof shall not be deemed to be a waiver of any rights and remedies that Vinidex may have and shall not be deemed a waiver of any subsequent breach or default. No provision of this contract shall be deemed to have been waived by Vinidex unless such waiver shall be in writing and signed by an officer of Vinidex giving notice in that behalf.
Any notice required to be given under this contract shall if the party is a Company, be signed by any person being or purporting to be a Director, Manager, Secretary or other officer of the party giving it, and if not a Company then by the party himself and shall be deemed to have been given on the second day following posting if sent by pre-paid mail in an envelope addressed to the registered office or principle place of business or last known address as the case may be of the party to whom the notice is being sent.
Terms and Variation
- These terms and conditions and any other terms and conditions for supply of the Goods to which Vinidex has consented to in writing are the sole terms and conditions governing the sale and supply of the Goods by Vinidex to the Buyer.
- The terms and conditions referred to in Clause 17(a) above may only be varied, modified, amended or added to with the consent in writing of Vinidex.
- If any dispute arises in relation to Goods supplied by Vinidex to the Buyer, Vinidex may by notice in writing to the Buyer at any time prior to determination by a court require that such dispute or part thereof be determined by arbitration according to law. The arbitration is to be conducted in accordance with the relevant Commercial Arbitration Act (of whatever name) of the State or Territory nominated as being the governing law and in the capital city of that State or Territory. Vinidex may give notice that any dispute with the Buyer is arbitrated with any other dispute relating to the same Goods or issues. There is to be a single arbitrator appointed by agreement or failing agreement by the president of the law society of that State or Territory. The arbitrator’s decision is final and binding subject to any right of appeal under the relevant Commercial Arbitration Act.
- The reference of a dispute to arbitration does not affect the Buyer’s obligation to pay the price for the Goods when due which must be paid without deduction or equitable or other set off pending the resolution of any dispute whether referred to arbitration or otherwise.
These terms will be governed by and construed in accordance with the laws of a State or Territory of Australia as the Company directs and the customer irrevocably submits to the exclusive jurisdiction of a competent court in the capital city of that State or Territory.
If any of these terms are or alter become illegal or unenforceable, the illegal or unenforceable part of those terms are taken to be severed from these terms, but all other terms remain in place.
Acquisition for Re-supply
The Buyer warrants that he is acquiring the Goods for the purpose of re-supply or for the purpose of using them up or transforming them in trade or commerce in the course of a process of production or manufacture or of repairing or treating other goods or fixtures on land and the parties agree that unless otherwise specified in writing the Goods are of a kind not ordinarily acquired by the Buyer for personal, domestic or household use or consumption.
Terms of Sale [23Kb]