These terms and conditions are current for trading with Custom Industries Pty Ltd at the time of issue, however the terms and conditions may vary from time to time.
1. Interpretation
In these conditions unless the contrary intention appears:
"Customer" means the person to or for whom the Goods are to be supplied by Seller. "Goods" means the goods sold to the Customer by Seller. "Payment Terms" means 30 days from date of invoice. "Purchase Price" means the list price for the Goods as charged by Seller at the date of delivery (excluding any delivery costs) or such other price as may be agreed by Seller and the Customer prior to delivery of the Goods. "Seller" means Custom Industries Pty Ltd
2. Order for Goods
2.1 An order given to Seller is binding on Seller and the Customer, if:
2.1.1 a written acceptance is signed for or on behalf of Seller; or
2.1.2 the Goods are supplied by Seller in accordance with the order.
2.2 An acceptance of the order by Seller is then to be an acceptance of these conditions of sale by Seller and the Customer and these conditions of sale will override any conditions contained in the Customer’s order. Seller reserves the right to accept a part only of any order by notifying the Customer in writing or by delivering the Goods to the Customer. No order is binding on Seller until accepted by it.
2.3 An order which has been accepted in whole or in part by Seller cannot be cancelled by the Customer without obtaining the prior written approval of Seller, which it may refuse in its absolute discretion.
3. Description of Goods
The description of the Goods is for the purpose of identification only and use of a description does not constitute a sale by description; Any sample of Goods exhibited to, or inspected by the Customer is supplied solely to judge the quality in bulk and does not constitute a sale of sample; No warranty is given as to the suitability of Goods to the Customer’s requirements and in purchasing the Goods, the Purchaser is deemed to acknowledge that it cannot rely on the skill and judgment of the Seller, its agents or employees in this regards.
4. Warranties
4.1 Certain laws imply terms, conditions and warranties ("Prescribed Terms") into contracts for the supply of goods and prohibit the exclusion, restriction or modification of such terms, conditions and warranties. The liability of Seller in respect of a breach of a Prescribed Term or any warranty made under these terms and conditions is limited, to the extent permissible by law and at the option of Seller, to the:
4.1.1 replacement of the Goods or the supply of equivalent Goods;
4.1.2 repair of Goods; or
4.1.3 the payment of the cost of replacing the Goods or of acquiring equivalent Goods or
4.1.4. the payment of the cost of having the Goods repaired.
4.2 Any claims to be made against Seller for short delivery of Goods must be lodged with Seller in writing within 7 days of the delivery date.
4.3 Unless the terms and warranties are included in these standard terms and conditions, all prior discussions, quotations, warranties and Prescribed Terms, to the extent permitted by law, are excluded.
5. Delivery
5.1 Delivery of the Goods will be made to an address nominated by the Customer. The Customer will make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
5.2 Delivery of the Goods to the nominated address is deemed to be delivery of the Goods to the Customer.
5.3 The times quoted for delivery are estimates only and Seller accepts no liability for failure or delay in delivery of Goods. The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery. Goods may be delivered by instalments at the discretion of Seller.
5.4 Risk in accepting the Goods passes on delivery to the Customer.
5.5. Return of Goods will not be accepted by Seller except by prior agreement in writing with Seller and any customized Goods will not be returnable. Any Goods returned must be free of damage and in a saleable condition and all freight charges are to be pre-paid by the Customer.
6 Price and Payment
6.1 The Customer must pay the Purchase Price, Delivery charges and GST to Seller in accordance with the Payment Terms.
6.2 If the Customer is in default, Seller may at its option withhold further deliveries or cancel a contract without prejudice to any of its existing rights.
6.3 All payments are due in accordance with the Payment Terms.
7 Intellectual Property
The sale of Goods does not have the effect of vesting in the Customer any right to any of the Seller’s intellectual property rights in the Goods, including without limitation the Seller’s trading name, registered trade marks, copyright in Goods, designs and patents, the ownership of which will remain with the Seller at all times.
8 Retention of Title
8.1 Ownership, title and property of the Goods remains with Seller until payment in full for the Goods and all sums due and owing by the Customer to Seller on any account has been made. Until the date of payment:
8.1.1 the Customer has the right to sell the Goods in the ordinary course of business;
8.1.2 until the Goods have been sold by the Customer in the ordinary course of the Customer's business, the Customer holds the Goods as bailee for the Seller;
8.1.3 the Goods are always at the risk of the Customer.
8.2 The Customer is deemed to be in default immediately upon the happening of any of the following events:
8.2.1 if any payment to Seller is not made promptly before the due date for payment;
8.2.2 if the Customer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque or bill of exchange drawn by the Customer payable to Seller is dishonoured;
8.3 In the event of a default by the Customer, then without prejudice to any other rights which Seller may have at law or under this contract:
8.3.1 Seller or its agents may without notice to the Customer enter the Customer's premises or any premises under the control of the Customer for the purposes of recovering the Goods.
8.3.2 Seller may recover and resell the Goods;
9 GST (Goods and Services Tax)
Goods and Services Tax (GST) will be shown separately in the tax invoice for the sale of the Goods. The amount of GST payable in respect of the supply of the Goods is payable by the Customer. The Customer must indemnify Seller in respect of GST paid and payable by Seller for the supply of the Goods.
10 General
10.1 These terms and conditions are to be construed in accordance with the laws from time to time in the State of Victoria. The parties submit to the non-exclusive jurisdiction of the State of Victoria.
10.2 These standard trading conditions contain all of the terms and conditions of the contract between the parties and may only be varied by agreement in writing between the parties.
10.3 Any conditions found to be void, unenforceable or illegal may, to that extent be severed from the Agreement.
10.4 No waiver of any of these terms and conditions or failure to exercise a right or remedy by Seller will be considered to imply or constitute a further waiver by Seller of the same or any other term, condition, right or remedy.
11 Warranty
11.1 Where the Seller has not manufactured the Goods, the Seller will pass on any warranty provided by the manufacturer of the Goods. The Seller will be under no liability whatsoever except for the express conditions as detailed in and stipulated in the manufacturer’s warranty.
11.2 Subject to clause 11.1 and clause 11.3, the Seller warrants that if any defect in any workmanship manufactured by the Seller becomes apparent and is reported to the Seller within twelve (12) months of the date of delivery (time being of the essence) then the Seller will (at the Seller’s sole discretion) repair the defect or replace the workmanship.
11.3 The conditions applicable to the warranty given by clause 11.2 are:
(a) The warranty shall not cover any defect or damage which may have been caused or partly caused by or arise through:
(i) Failure on the part of the Customer to properly maintain the Goods; or
(ii) Failure by the Customer to follow any instructions or guidelines provided by the Seller; or
(iii) Any use of the Goods otherwise than for any application specified on a quote or order form; or
(iv) The continued use of the Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
(v) Fair wear and tear any accident or act of Gods.
(b) the warranty shall cease and the Seller shall in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent
(c) in respect of all claims the Seller shall not be liable to compensate the Customer for any delay in either replacing or repairing the workmanship/Goods or in properly assessing the Customer’s claim.