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NATIONWIDE
TREES P/L
TERMS
& CONDITIONS OF TRADE
1. INTERPRETATION
1.1 Unless
otherwise inconsistent with the context the word "person" shall
include corporation;
1.2 " Goods"
shall include services.
1.3 Words
importing the singular number shall be deemed to include the plural
and vice versa. Words importing the male gender shall be deemed to
include the female and neuter gender and vice versa.
2. OFFER
& ACCEPTANCE
2.1 Any
quotation made by NATIONWIDE TREES P/L is not an offer to
sell or provide goods. NATIONWIDE TREES P/L shall not be bound by
any order given in pursuance of any quotation until it is accepted
in writing by NATIONWIDE TREES P/L or by the commencement
of supply or the provision of goods. Unless otherwise agreed in
writing, all orders are subject to acceptance by
NATIONWIDE TREES P/L within 30 days of receipt by
NATIONWIDE TREES P/L of the order. These terms and
conditions shall be deemed to be incorporated into any agreement
between NATIONWIDE TREES P/L and the purchaser. Any terms
and conditions contained in any order, offer, acceptance or any
other document of the purchaser and all representations,
statements, terms and conditions and warranties (whether implied by
statute or otherwise) not embodied herein are expressly excluded to
the fullest extent by law.
2.2 Insofar
as goods or services supplied by NATIONWIDE TREES P/L are
not of a kind ordinarily acquired for personal domestic or
household consumption, and unless the purchaser establishes that
reliance on this provision would be fair and reasonable, the
liability for breach of a condition or warranty; implied into this
contract by the Trade Practices Act 1974 (other than a condition
implied by Section 69) is limited:
(a) in the
case of goods to any one of the following as determined by
NATIONWIDE TREES P/L
(i) the
replacement of the goods or the supply of equivalent goods;
or
(ii) the
payment of the cost of replacing the goods or of acquiring
equivalent goods; or
(b) in the
case of services to any one of the following as determined by
NATIONWIDE TREES ;
(i) the
supply of the services again, or
(ii) the
payment of the cost of having the services supplied
again.
HOWEVER,
the purchaser acknowledges that at such time as stock is purchased
from NATIONWIDE TREES P/L, NATIONWIDE TREES P/L
relinquish control over the environment of the stock and,
therefore, over any influence over the continued quality or well
being of same. For that reason, NATIONWIDE TREES P/L
gives no warranty, expressed or implied as to the growth or
productiveness of stock following its receipt by the purchaser or
its agents and / or servants.
3. DELIVERY
3.1 Any
date quoted for delivery is an estimate only and unless a guarantee
shall have been given by NATIONWIDE TREES P/L in writing
providing for liquidated damages for failure to deliver by the
quoted date NATIONWIDE TREES P/L shall not be liable to the
purchaser for any loss or damage howsoever arising even if arising
out of the negligence of NATIONWIDE TREES P/L for
failure to deliver on or before the quoted date. The purchaser
shall accept and pay for goods if and when tendered notwithstanding
any failure by NATIONWIDE TREES P/L to deliver by the quoted
date. Written advice to the purchaser that goods are ready fro
delivery whether in whole or in part shall constitute tendering and
the terms of payment shall apply.
3.2 NATIONWIDE
TREES P/L shall not be liable to any purchaser or any other
party for any direct or indirect or consequential injury loss or
damage whatsoever by reason of any delay in delivery whether the
same4 is due to the negligence of NATIONWIDE TREES P/L or any
other party, strike or any other industrial action be it of
NATIONWIDE TREES P/L or other party, or any other cause
whatsoever.
3.3 NATIONWIDE
TREES P/L reserves the right to deliver by instalments if
delivery is made by instalments the purchaser shall not be
entitled;
(i) to
terminate or cancel the contract; or
(ii) to any
claim loss or damage howsoever arising for failure by NATIONWIDE
TREES P/L to deliver any instalments on or before the quoted
date.
3.4 It is
agreed that NATIONWIDE
TREES P/L shall not be responsible for delay in manufacture or
delivery caused by, or in any way incidental to act of God, war,
fire, breakages of machinery or strikes or arising out of any other
unexpected or exceptional cause, or any cause beyond NATIONWIDE
TREES P/L reasonable control.
3.5 Any
quotation containing a provision to supply goods "ex stock" is
subject to fulfilment of prior orders at the date of receipt of the
purchaser's order.
4. PAYMENT
4.1 Unless
otherwise agreed in writing payment terms are strictly 30 days
from the date the goods are invoiced to the purchaser.
4.2 This
term as to the payment shall be of the essence of the
contract.
4.3 A
charge of 1.5% applies to all credit card payments.
5. TITLE
& RETENTION OF TITLE IN GOODS
5.1 Notwithstanding
the delivery of the goods or part thereof the goods remain the sole
and absolute property of NATIONWIDE TREES P/L as full
legal and equitable owner until such time as the purchaser
shall have paid NATIONWIDE TREES P/L the full purchase price
together with the full price of any other goods the subject of any
other contract with NATIONWIDE TREES P/L.
5.2 The
purchaser acknowledges that he receives possession of and holds
goods delivered by NATIONWIDE TREES P/L solely as bailee for
NATIONWIDE TREES P/L until such time as the full price thereof
is paid to NATIONWIDE TREES P/L together with the full price
of any other goods then the subject of any other contract with
NATIONWIDE TREES P/L.
5.3 Until
such time as the purchaser becomes the owner of the goods, he
will:
(a) store
them on the premises separately;
(b) ensure
that the goods are kept in a good and healthy condition;
(c) secure
the goods from risk, damage and theft; and
(d) keep
the goods fully insured against such risks that are usual or common
to insure against in a business of a similar nature to that of the
purchaser.
5.4
(i) Until
the goods are paid for in full, NATIONWIDE TREES P/L
authorises the purchaser to sell the goods as its agent. However,
the purchaser shall not represent to any third parties that it is
acting in any way for NATIONWIDE TREES P/L. NATIONWIDE
TREES P/L will not be bound by any contracts with third
parties to which the purchaser is a party.
(ii) Records
shall be kept by the purchaser of any goods owned by NATIONWIDE
TREES P/L.
(iii) The
proceeds of any sale of the goods shall be paid into a separate
account and held in trust for NATIONWIDE TREES P/L. The
purchaser shall account to NATIONWIDE TREES P/L from this fund
for the full price of the goods.
(iv) The
purchaser is entitled to a period of credit, but if prior to the
expiration of the period of credit the goods are sold and the
proceeds of sale received the purchaser shall account to NATIONWIDE
TREES P/L for the price of the goods.
(v) Should
the purchaser die, stop payment or call a meeting of its creditors
or become insolvent or subject to the bankruptcy laws or being a
company calls a meeting for the purpose of or to go into
liquidation or has a winding up petition presented against it or
has a receiver or administrator appointed, NATIONWIDE
TREES P/L may at its option notwithstanding its waiver of such
default or failure and without prejudice to its other rights under
this contract suspend or cancel this contract or require payment in
cash before or on delivery or tender of goods or documents
notwithstanding terms of payment previously specified or may
repossess and take over the goods and dispose of the same in its
own interest without prejudice to any claim it may have for damages
for any loss resulting from such resale.
5.5 If the
purchaser does not pay for any goods on the due date then
NATIONWIDE TREES P/L is hereby irrevocably authorised by the
purchaser to enter the purchaser's premises (or any premises under
the control of the purchaser or as agent to the purchaser in which
the goods are store at such premises) and use reasonable force to
take possession of the goods without liability for the tort of
trespass, negligence or payment of any compensation to the
purchaser whatsoever.
5.6 On
retaking possession of the goods NATIONWIDE TREES P/L may
elect to refund to the purchaser any part payment that may have
been made and to credit the purchaser's account with the value of
the goods less any charge for recovery of the goods, or to resell
the goods.
6.
RISK
Unless
otherwise agreed in writing, risk in the goods shall pass to the
purchaser at the time when the goods have been placed on the
vehicle which is to effect delivery from NATIONWIDE TREES P/L
store or warehouse. The goods shall remain at the purchaser's risk
at all times unless and until NATIONWIDE TREES P/L retakes
possession of the goods pursuant to these terms and
conditions.
7.
CLAIMS
7.1 Subject
to clause 2.2 herein, NATIONWIDE TREES P/L shall not be liable
for any loss or damage whatsoever and howsoever arising whether
direct indirect or consequential or in respect of any claim
whenever and however made for any loss or damage deterioration
deficiency or other fault or harm in the goods manufactured, work
executed or services provided by or on behalf of or in any
arrangement with NATIONWIDE TREES P/L or occasioned to
the purchaser or any third or other party or to his or their
property or interest and whether or not due to the negligence of
NATIONWIDE TREES P/L its servants or agents.
7.2 As
soon as any of the facts or matters which form any part of any
claim or complaint whatsoecer become known to the purchaser, the
purchaser shall within 14 days notify NATIONWIDE TREES P/L in
writing of the same.
7.3 NATIONWIDE
TREES P/L shall not be liable in any circumstances for
any;
(i) defects
or damage caused by misuse, abuse, neglect, improper planting,
watering or treatment (including transporting) (other than by
NATIONWIDE TREES P/L) or accident.
(ii) any
transport freight charges installation removal labour or other
costs;
(iii) defects
in goods not manufactured by it but NATIONWIDE TREES P/L will
endeavour to pass on to the purchaser the benefit of any claim made
by NATIONWIDE TREES P/L and accepted by the manufacturer of
such goods provided that nothing contained in this subparagraph
shall limit the rights of the purchaser to proceed against
NATIONWIDE TREES P/L pursuant to the Trade Practices Act
1974.
(iv) technical
advice or assistance given or rendered by it to the purchaser or
not in connection with the manufacture construction or supply of
goods for or to the purchaser provided always that NATIONWIDE
TREES P/L has rendered such services with due care and skill
and that any material supplied in connection with those services
are reasonably fit for the purpose for which they are
supplied.
7.4 The
exemptions, limitations, terms and conditions in these terms and
conditions shall apply whether or not the loss or damage is caused
by negligence or actions constituting fundamental breach of
contract.
8. FORCE
MAJEURE
If by
reason of any fact, circumstance, matter or thing beyond the
reasonable control of NATIONWIDE TREES P/L, NATIONWIDE
TREES P/L is unable to perform in whole or in part any
obligation under this agreement NATIONWIDE TREES P/L shall be
relieved of that obligation under this agreement to the extent and
for the period that it is so unable to perform and shall not be
laible to the purchaser in respect of such inability.
9.
DEFAULT
Upon
the occurence of default by the purchaser in compliance with the
terms herein;
9.1 NATIONWIDE
TREES P/L may at its discretion withhold further supplies of
goods or cancel this agreement, or vary the terms of this agreement
without prejudice to its rights hereunder
PROVIDED HOWEVER that NATIONWIDE TREES P/L may at
any time and from time to time upon such terms as it may determine
waive any of its rights under this clause, but without prejudicw to
its rights thereafter of any of the events hereinbefore referred to
or upon the continuation after any such waiver of any state of
affairs the subject of such waiver.
9.2 The
purchaser shall pay NATIONWIDE TREES P/L interest at the rate
of 1.5% per month on daily balances in respect of any amounts as
may from time to time be overdue until paid and such money together
with all interest shall be recoverable forthwith from the
purchaser.
9.3 Without
prejudice to any other right or remedy the purchaser shall
indemnify NATIONWIDE TREES P/L against any costs' fees charges
and disbursements charged by any solicitor engaged for the purpose
of the collection of moneys due and payable by the purchaser to
NATIONWIDE TREES P/L on an indemnity basis and any fees,
charges, disbursements or commissions charged by a mercantile
agency or debt collecting firm.
9.4 The
purchaser shall pay to NATIONWIDE TREES P/L an administration
fee of $50.00 on the occurence of every event of
default.
10. CHARGE
The
Purchaser hereby charges with payment of any indebtedness to
NATIONWIDE TREES P/L all beneficial interest (freehold and
leasehold) in land and personal property held now or in the
future by the purchaser. The purchaser agrees that if demand
is made by NATIONWIDE TREES P/L, the purchaser receiving such
a demand will immediately execute a mortage or other instrument of
security, or consent to a caveat, as required, and against the
event that the purchaser fails to do so within a reasonable time of
being so requested, the purchaser hereby irrevocably and by way of
security, appoints any credit manager or solicitor engaged by
NATIONWIDE TREES P/L to be its true and lawful attorney to
execute and register such instruments.
11. GST
If a
goods and services or similar value added tax ("GST") applies to
this agreement for any reason the purchaser must pay the GST or
reimburse NATIONWIDE TREES P/L for any GST paid or payable by
NATIONWIDE TREES P/L. | 