TERMS AND CONDITIONS OF SALE
- Binding Nature of these Terms and Conditions
- These terms and conditions of sale (as may be amended from time to time by Estilo Commercial Pty Ltd (“Estilo Commercial”)) (“Terms”) are subject to the provisions of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) and of the Personal Properties Securities Act 2009 (Cth) (“PPSA”).
- In these Terms, “buyer” means the buyer of goods from Estilo Commercial and includes any of the buyer’s officers, employees, agents or contractors.
- The buyer acknowledges and agrees that these Terms bind the buyer and apply to every transaction between the buyer and Estilo Commercial, and are the only terms and conditions to which Estilo Commercial will be bound, unless Estilo Commercial otherwise agrees in writing.
- Failure by Estilo Commercial to insist upon compliance with any provision of these Terms will not constitute a waiver of that provision or of any other provision of these Terms and Estilo Commercial will be entitled to insist upon compliance with all provisions of these Terms at any time.
Prices, weights, dimensions and other data and product information in catalogues, brochures, advertisements and pricelists are only given in guidance and will be binding upon Estilo Commercial only to the extent that they are by reference expressly included in the quote or invoice provided by Estilo Commercial to the buyer.
- Quotations and Orders
- The Terms apply to any quotation provided to a buyer (or potential buyer) by Estilo Commercial (“quotation”).
- A quotation will remain valid, and prices quoted on a quotation will apply, for a period of 30 days from the date of the quotation. After that period the quotation may or may not remain open for acceptance, or may be changed or withdrawn, by Estilo Commercial in its absolute discretion.
- A quotation does not include delivery or installation costs or charges unless otherwise expressly stated. Any delivery or installation costs given in a quotation or otherwise apply to normal business hours and do not include any overtime or penalty rates or any other additional costs or charges arising. The buyer is liable for all delivery and installation costs.
- Acceptance of a quotation must be made or confirmed in writing to Estilo Commercial. The buyer must provide Estilo Commercial with its ABN at the time of acceptance.
- The buyer must place orders for goods from Estilo Commercial in writing by email, fax or post to Estilo Commercial’s usual email address, fax number or postal address. The risk of such order not being properly placed or of not being received by Estilo Commercial will rest with the buyer.
- Any time for supply, delivery or installation given by Estilo Commercial to the buyer is an estimate only. Estilo Commercial will not be liable for any delay in supply, delivery or installation or for any loss, damage, cost or expense arising from or in connection with such delay.
- Any change requested by the buyer to a quotation or to an order or to any supply, delivery or installation date may or may not be made or accepted by Estilo Commercial, in its absolute discretion, and may result in a change to the quoted price, may result in additional costs and charges, and may result in delays to supply, delivery and/or installation dates.
- The buyer may not cancel any order placed with Estilo Commercial. If the buyer purports to cancel an order, or fails or refuses to accept delivery of, or to collect, goods ordered, for any reason whatsoever, then the buyer must nevertheless pay Estilo Commercial for the goods in full in the time and manner specified in these Terms, without any deduction, set-off or counterclaim.
- Retention of Title
- The risk of loss of or damage to goods ordered by the buyer passes to the buyer on the date and at the time that the goods are delivered to the buyer at the buyer’s premises, or other party or location as specified by the buyer, or on the date and at the time that the goods are collected from Estilo Commercial’s warehouse by the buyer or any officer, employee, agent or contractor of the buyer.
- The buyer will inspect the goods upon receipt and if the buyer has any concerns in relation to the goods, including as to quantity or quality, the buyer must notify Estilo Commercial of those concerns and of the buyer’s request to address those concerns within three (3) days after receipt of the goods.
- Notwithstanding clause 4a) above, ownership of any goods supplied by Estilo Commercial will not pass to the buyer until payment for all amounts owing by the buyer to Estilo Commercial in respect of those goods and all other goods supplied by Estilo Commercial to the buyer has been received by Estilo Commercial.
- The buyer acknowledges and agrees that until full payment is made for the goods the buyer holds the goods as bailee of Estilo Commercial and that a fiduciary relationship exists between the buyer and Estilo Commercial.
- Until payment is made for all goods the buyer must not alter the goods in any way without the prior written consent of Estilo Commercial.
- The buyer irrevocably grants Estilo Commercial the right to enter upon the buyer’s property or premises, without notice, if Estilo Commercial has cause to exercise any of its rights under sections 123 and/or 128 of the PPSA.
- The buyer acknowledges and agrees that if it sells any of the goods belonging to Estilo Commercial that sale of such goods is as an agent of Estilo Commercial.
- The buyer acknowledges and agrees that any transaction between it and Estilo Commercial on these Terms gives Estilo Commercial a security interest in goods supplied by Estilo Commercial to the buyer and that Estilo Commercial may register that security interest under the PPSA. The buyer:
- agrees to do all things necessary to facilitate such registration and not to do or omit to do anything which may prevent or frustrate the perfection or enforcement of such security interest;
- indemnifies Estilo Commercial against all costs, expenses, fees, charges and liabilities that are or may be incurred by Estilo Commercial in or in connection with the registration, maintenance, enforcement and discharge of such security interest;
- agrees with Estilo Commercial to contract out of sections 95, 118, 130 and 135 (to the extent that those sections require Estilo Commercial to give notice to the buyer) and sections 125, 132(3)(d), 132(4), 142 and 143 of the PPSA; and
- waives its right to receive notice under section 157 of the PPSA.
- The buyer must pay a deposit to Estilo Commercial in the amount of 40% of the price for the goods upon acceptance of Estilo Commercial’s quotation for the goods.
- If no time for payment is stated on the invoice, payment of the full balance of the price for the goods must be cash on delivery/collection of the goods.
- If Estilo Commercial has granted a credit facility to the buyer (pursuant to a credit application completed by the buyer) and unless otherwise agreed between Estilo Commercial and such buyer, invoices will be sent within seven (7) days of the dispatch or collection of the goods and payment is due and payable within thirty (30) days from the date of the invoice.
- Payments made by credit card are subject to a charge of 1.5%.
- Personal or company cheques will only be accepted in payment if the funds are cleared prior to delivery/collection of the goods.
- Estilo Commercial may at any time set off amounts owed by Estilo Commercial to the buyer from amounts owed by the buyer to Estilo Commercial. The buyer is not entitled by way of set off or for any other reason to withhold payment of any amount owed by the buyer to Estilo Commercial.
- If any one or more of the events described in items i. to iv. below occurs then Estilo Commercial may at its option withhold further deliveries to the buyer and/or cancel any and all sale agreements and transactions with the buyer without notice to the buyer and without prejudice to any right, action or remedy Estilo Commercial may have and all monies owing to Estilo Commercial by the buyer on any account whatsoever and irrespective of whether already due will immediately become due and payable:-
- The buyer makes default in any payment or is unable or states that it is unable to pay its debts as and when they fall due;
- The buyer commits any act of bankruptcy or being a company passes a resolution for its winding up or enters into liquidation;
- A receiver or manager is appointed over the assets of the buyer; or
- The buyer experiences an analogous event having substantially similar effect to the matters contained in i. to iii. above.
- Personal Guarantee
Each director and each partner of the buyer (as the case may be) must provide a personal guarantee to Estilo Commercial in the form required by Estilo Commercial.
- General Lien
In addition to any right of lien to which Estilo Commercial may by law be entitled, Estilo Commercial will be entitled to a general lien on all items in its possession belonging to the buyer for the unpaid price of goods and the buyer hereby acknowledges that Estilo Commercial shall have a right of sale in respect of such items and subject to such lien.
- Limitation of Liability
To the maximum extent permitted by law:
- all conditions and warranties expressed or implied in or by statute, common law, equity, trade, custom, usage or otherwise in respect of transactions between Estilo Commercial and the buyer are expressly excluded;
- Estilo Commercial will have no liability whatsoever or howsoever arising for any loss or damage whatsoever or howsoever suffered by the buyer in or in connection with any transaction between Estilo Commercial and the buyer;
- in respect of goods or part of goods not manufactured by Estilo Commercial, the manufacturer’s warranty (if any) will apply and any liability of Estilo Commercial will not exceed the manufacturer’s liability;
- in respect of goods not ordinarily acquired for personal, domestic or household use or consumption, any liability of Estilo Commercial is limited at Estilo Commercial’s option to the repair of the goods or the supply of replacement goods;
- no liability will arise in respect of any normal wear and tear;
- Estilo Commercial will have no liability in respect of any damage arising from accident, misuse or alteration after the goods are supplied;
- any liability of Estilo Commercial for any loss or damage suffered by the buyer will be reduced to the extent that the buyer has caused or contributed to the loss or damage; and
- any liability of Estilo Commercial will not in any event exceed the total dollar amount of the goods purchased by the buyer.
- Product Liability
All risk in respect of the goods passes to the buyer in accordance with clause 4a) of these Terms. The buyer assumes all responsibility for filing claims for damage against carriers or other agents. The buyer must insure all goods against loss or damage until payment has been made to Estilo Commercial. If any goods are damaged or destroyed after shipment or collection, the buyer must direct the insurer to make payment to Estilo Commercial who will apply the funds at its discretion.
If any provision of these Terms is or becomes invalid, illegal or unenforceable, the provision shall so far as possible be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down, the provision or part of it shall be deemed to be void and severable and the remaining provisions of these Terms shall be in no way affected or impaired.
A notice or other communication connected with these Terms has no legal effect unless it is in writing.
- Governing Law
These Terms are governed by the laws of the State of South Australia. Estilo Commercial and the buyer submit to the non-exclusive jurisdiction of the courts of South Australia.
Each party must pay for its own costs and expenses (including legal costs) in connection with the preparation, negotiation, registration and execution of these Terms.
- Relationship of parties
The buyer acknowledges and agrees that no transaction between Estilo Commercial and the buyer on these Terms implies any employer/employee, franchisor/franchisee, partnership or joint venture relationship, agreement or arrangement. Nothing in these Terms authorises one party to bind the other party to do anything or omit to do anything that incurs or imposes any liability or obligation for or on behalf of the other party except as authorised by that party in writing.
- Force Majeure
No party will be liable to the other for any loss or damage arising from or in connection with a force majeure event. A force majeure event is an event beyond the control of either party that is unforeseeable or, if foreseeable, cannot be avoided or altered by human power.