BARRON & RAWSON PTY LTD
General Terms and Conditions of Sale
- Any quotation given by the Company is subject to the materials referred to being available for execution of order when received and open for acceptance for a period of 30 days.
- Any quotation is given only for the quantity of goods specified in it. A different price to that quoted may be charged for other quantities of goods.
- All prices quoted are subject to GST and may be altered after 30 days from date of quotation.
- Prices quoted in any quotation are subject to the cost of raw materials used in manufacturing the goods and also to rates of pay and conditions of employment of employees of the Company remaining unaltered from the date of the quotation. If any rise or fall in one or more of these items shall take place prior to or during manufacture of the goods the subject of any quotation, the price quoted for goods not then manufactured shall be varied by such amount as the accountant of the Company certifies in writing is the amount of the rise or fall in the costs to the Company of manufacturing the said goods. Any such certificate shall be conclusive evidence of the matters stated in it.
- All tooling designed and/or manufactured by the Company and paid for by the customer shall upon payment of the entire purchase price of the tooling become the property of the customer.
- Alterations to tools (whether the property of the customer, of the Company or of any third party) to meet customers’ requirements and replacement or renewals of such tools shall be paid for by the customer.
- The Company shall have no legal liability for loss of or damage to tooling (whether the property of the customer or of any third party, whether arising by negligence or otherwise). The Company shall have no legal liability for any consequential loss arising from such loss or damage to tooling. The customer agrees to indemnify the Company against all claims whatsoever for loss of or damage to such tooling. It is expressly agreed that the Company is not obliged to insure such tooling.
- The Company shall have a lien over all tooling (whether the property of the customer or of a third party) and shall be entitled to retain possession of such tooling until payment of all sums owing to the Company by the customer whether for tooling, manufacture of goods or on any other account (whether of the same kind as the foregoing or not) whatsoever.
- If the Company provides the customer with a sample or samples of any goods and the customer subsequently places an order with the Company which the Company accepts, no charge will be made for the said sample or samples. In any other circumstances the company reserves the right to charge for any sample or samples.
- The Company makes no warranties or representations (other than those warranties and representations implied by statute and which cannot be excluded restricted or modified by the agreement of the parties) in relation to the goods, their manufacture or use, and the customer accepts the goods entirely at his own risk. The customer further acknowledges and agrees that the Company shall not be liable in respect to any loss or damage whatsoever attributable to any quality or defect of the goods or the use thereof in any way arising out of any warranty or duty express or implied contractual or statutory or otherwise and not being a warranty implied or duty imposed by statute which cannot be excluded restricted or modified by the agreement of the parties. In relation to any loss or damage whatsoever attributable to any quality or defect of the goods or the use thereof in any way arising out of the warranty implied or duty imposed by statute which cannot be excluded restricted or modified by the agreement of the parties the liability of the Company shall be limited to the replacement or repair of those particular goods supplied by the Company the subject of such loss or damage. The Company shall not be liable for any consequential loss or damage which may be sustained by the customer in relation to the goods. The loss or damage referred to in this clause shall include without limiting the foregoing loss or damage caused by the negligence or wilful act or default of the Company or others whether or not such loss or damage is foreseeable or contemplated by the Company. The customer in accepting the delivery of the goods and not seeking a credit from them strictly in accordance with the provisions of clause 14 hereof agrees that no warranties or representations (other than those warranties and representations implied by statute and which cannot be excluded restricted or modified by the agreement of the parties) have been made by the Company in relation to the goods their manufacture or use.
- The customer releases and indemnifies and agrees to release and indemnify and keep released and indemnified the Company and save harmless the Company from any and all suits actions claims costs demands or proceedings (whether brought by the customer or any other person or persons, corporation or corporations) in respect of or arising out of anything attributed to any quality or defect of the goods or the use thereof to the extent that such suits actions claims costs demands or proceedings are in excess of the liability accepted by the Company to replace or repair the particular goods supplied by the Company the subject of such loss or damage where such liability arises out of warranty implied or duty imposed by statute which cannot be excluded, restricted or modified by agreement of the parties.
- In the event that the Company has provided or shall provide any information or advice to the customer in whatsoever form in relation to the manufacture or use of the goods it is agreed by the customer that all such information and advice has been or will be provided by the Company without liability on the part of the Company its servants or agents for any loss or damage howsoever caused including negligence or wilful act or default for any other reason whatsoever and the customer acknowledges that no reliance is placed by the customer upon the accuracy or otherwise of such information or advice.
- Without limiting the generality of clauses 10 to 12, it is expressly acknowledged and agreed that when goods of a particular colour or finish are specified, the company does not promise to match a given colour or finish exactly.
- Without limiting the generality of clauses 10 to 12, the Company may in its discretion and without any legal obligation so to do permit goods which have been delivered to a customer to be returned upon terms that the customer is allowed the credit for the price of the goods. However the Company warns that it will not exercise its discretion in favour of a customer unless:
(a) the goods have been previously inspected at the customer’s premises by a duly authorised representative of the Company who after such inspection agrees to receive them back; or
(b) goods are returned to the Company’s premises accompanied by a form of advice showing the relevant invoice number, total quantity supplied, quantity rejected and reason for rejection within seven days of delivery, and the Company, after inspection, agrees to receive them back.
- The customer may inform the Company when deliveries of goods are required. If the Company fails to deliver the goods at the time so informed, the customer shall not be entitled to cancel the contract for those goods and any other goods ordered but then undelivered, nor shall the company be liable for damages in any way attributable to the said failure.
- If the customer has not taken delivery of goods ordered by any date which the customer has informed the Company that delivery of the goods is required, or by a date six months after the date of the customer’s order for the goods (whichever is earlier) the Company shall be entitled to deliver and the customer obliged to accept the whole of the goods ordered which are then undelivered.
- Without prejudice to any other rights of the Company to sue for breach of contract, it is expressly agreed and understood that once the company has written a production order for goods ordered any cancellation of the order can be made with the consent in writing of the Company. The Company warns that if such consent is given it shall only be on terms which indemnify it against loss.
- It is a condition of sale of any article or drawing or design or prototype that the copyright, patent rights and design rights contained in the article or in the article to which the design drawing or prototype relates remain the property of the Company, and no transfer of any such rights is included in the price paid or agreed to be paid whether or not such price includes a figure for designing or producing the article. All persons are warned that any unauthorised manufacture, use or sale of such article may constitute an infringement of such rights, a breach of contract, and give rise to an action for damages.
- The customer agrees with the Company that it will not bring any claim suit action or proceeding against any director employee or agent of the Company arising from or related to the supply of any goods by the Company to the customer or the performance or any work by the Company for the customer or the tendering of any advice by the Company to the customer.
- If a customer shall submit to the Company an order which bears printed terms and conditions, it is expressly agreed that those terms and conditions shall not be part of any contract between the Company and the customer and that the Terms and Conditions of Contract of the Company shall be the ones which apply to any contract between the Company and the customer. Without limiting the generality of the foregoing, the customer agrees that if it accepts any goods from the Company and does not seek a credit from them in strict accordance with clause 14 hereof, it shall be acknowledging and agreeing that Terms and Conditions of Contract of the company apply to the sale of those goods, and that the Company has relied upon the applicability of its Terms and Conditions of Contract in the manner in which it has conducted its business.
- Any variations of these Terms and Conditions of Contract can only be made in writing signed by the Company.
- The customer shall pay all amounts due to the Company within 30 days after the date of an invoice by which the Company claims payment for that amount.
- PASSING OF OWNERSHIP AND INSURABLE RISK
23.1 Title to the goods remains with the Company until the total amount due in respect of the goods under clause 5 has been paid (“the debt”).
23.2 The Customer has the right to sell the goods as fiduciary agent of the Company by way of a bona fide sale at full market value and in the ordinary course of its business. The Customer has no right to bind the Company to a third party in any way.
23.3 Until the debt has been paid:
23.3.1 the Customer holds the goods as fiduciary agent and bailee for the Company;
23.3.2 the goods must be stored in such a manner that they are separate from and readily distinguishable from other goods owned by the Customer or any other person;
23.3.3 the Customer indemnifies the Company against any claim, action, proceeding, damage, loss, cost, expense or liability incurred or suffered by the Company arising out of the possession, use or disposal of the goods by the Customer or repossession or attempted repossession by the Company.
23.3.4 any sale of the goods under subclause 23.2 is effected as fiduciary agent of and bailee for the Company and the proceeds of such sale and rights against its customers arising from such sales are held on trust for the Company. The proceeds of such sale must be held in a separate account, or otherwise clearly identified in the books and records of the Customer.
23.4.1 the debt is not paid in accordance with these conditions and any other agreement between the Company and the Customer;
23.4.2 the Company receives notice of or reasonably believes that a third person may attempt to levy execution against the goods; or
23.4.3 an insolvency event occurs;
the Company may at any time, without notice to the Customer and without prejudice to any other rights which it may have against the Customer terminate any contract relating to the goods and the fiduciary agency and bailment referred to in subclause 23.3, and enter any premises owned or occupied by the Customer where the Company reasonably believes that the goods may be stored, repossess the goods without being liable for any damage caused, and subsequently dispose of the goods at the Company’s discretion.
23.5 If the Customer incorporates in or mixes the goods with other goods thereby creating a separate product (“the product”) such that the goods are not a readily identifiable and removable part of the product, then until the debt has been paid the Customer shall hold in trust for the Company such part of the proceeds of the sale of the product as relates to the goods; such part being deemed to equal in dollar terms the amount owing by the Customer to the Company at the time of the receipt of such proceeds.
23.6 In the event that the goods are sold by the Company following repossession under subclause 23.4, any excess of the proceeds of the sale (less expenses of repossession and sale) over the
cost of goods supplied to the Customers will be paid to the Customer after the debt has been paid.
23.7 Upon delivery the insurable risk in the goods passes to the Customer.
23.8 The following definitions apply unless the context requires otherwise.
“goods” means all goods supplied by the Company to the Customer or to such other party or location that the Customer may direct.
“insolvency event” shall occur when, except for the purpose of a solvent reconstruction or amalgamation previously approved by the Company in writing,;
23.8.1 an application or an order appointing an Administrator, Receiver, Provisional Liquidation or Liquidator is made;
23.8.2 proceedings are commenced;
23.8.3 a resolution is passed or proposed in a notice of meeting for the winding up, dissolution, official management or voluntary administration of the Customer;
23.8.4 an application to a Court of other steps are taken for the winding up, dissolution, official management or voluntary administration of the Customer;
23.8. 5the Customer enters into any agreement, compromise or composition with or assignment for the benefits of its creditors or any class of them;
23.8.6 the Customer cease, suspends or threatens to cease or suspend the conduct of its business or disposes of or threatens to dispose of its assets other than in the ordinary course of its business;
23.8.7 the customer is, or is deemed under any applicable legislation to be, unable to pay its debts when they fall due (other than as a result of the failure to pay, deed or claim the subject of a good faith dispute) or stop or suspends or threatens to stop or suspend the payment of all or any class of its debts;
23.8.8 a receiver, manager, administrator or similar officer is appointed to the Customer or any part of its property or a distress, attachment or other execution is levied or enforced; or
23.8.9 (in the case of a Customer who is a natural person) the Customer commits an act of bankruptcy.
- Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
- If any of these Terms and Conditions of Contract or any part thereof is found to be invalid or illegal then that term or condition or part thereof shall be deemed deleted and such invalidity or illegality shall not affect any other term or condition in whole or in part.
- Personal Property Securities Act 2009 (Cth) (PPSA) Registration: The Customer agrees that Barron & Rawson will have a Purchase Money Security Interest (as defined in the PPSA) in any products or other equipment supplied to the Customer under these Terms or any related order or contract. Barron & Rawson may register any security interest contemplated by these Terms and/or any related order or contract on the PPS Register (as defined in the PPSA). The Customer must supply Barron & Rawson with any information and take any steps Barron & Rawson requires for the purposes of effecting and enforcing such registration. The Customer irrevocably and unconditionally waives its right to receive any notice from Barron & Rawson in connection with the registration. The Customer will not allow a security interest to be created or registered over the products in priority to the security interest held by Barron & Rawson. The Customer agrees that any action taken by Barron & Rawson in relation to the Customer’s security interest in the products is at the cost of the Customer. The parties agree that for the purposes of section 115 of the PPSA, nothing in sections 95, 121(4), 125, 130 (to the extent that it requires Barron & Rawson to give any notice to the Customer), l32(3)( d), l32( 4) and l35 of the PPSA will apply to any collateral arising from or in connection with these Terms and/or any related order or contract. Notwithstanding section 275 of the PPSA, the parties further agree to keep confidential the contents of these Terms and related material.