Brady Australia Pty Ltd - Terms and Conditions
These trading terms and conditions (“Terms”) apply (unless otherwise previously agreed in writing) to the supply of Goods by Seller to a Customer from time to time. Any supply of Goods by Seller to the Customer made after the date of acceptance of these Terms is a supply pursuant to the supply agreement constituted by these Terms and the relevant order accepted by Seller and any such supply does not give rise to a new or separate agreement.
These terms and conditions (“Terms”) are current for trading with the Seller at the time of issue, however these Terms may be updated from time to time by Seller.
In these Terms unless the contrary intention appears:
"Additional Charges" includes all delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable by the Customer to Seller arising out of the sale of the Goods.
"Customer" means the person to or for whom the Goods are to be supplied by Seller.
“Customer’s Site” means the location where the installation works will take place in accordance with clause 7.
"Goods" means the goods sold to the Customer by Seller and includes any services provided by Seller to Customer.
“Installation Works” means the installation of the Goods by Seller or its third party as specified on the purchase order.
"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 Brady Australia Pty Ltd.
2. Order for Goods
2.1 An order given by Customer 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
3.1 To the extent permitted by law:
3.1.1 the description of the Goods is for the purpose of identification only and reliance on a description of the Goods does not constitute a sale by description;
3.1.2 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.
3.2 To the extent permitted by law, no warranty is given by Seller 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. The Customer must also examine the Goods prior to purchase.
4.1 The Seller’s liability is limited, to the extent permissible by law and at the Seller’s option to:
4.1.1 with respect to Goods:
(a) replacement of the Goods or the supply of equivalent goods;
(b) repair of Goods; or
(c) the payment of the cost of replacing the Goods or of acquiring equivalent goods or
(d) the payment of the cost of having the Goods repaired.
4.1.2 where the Goods are services:
(a) the supply of the services again; or
(b) the payment of the cost of having the services supplied again.
4.3 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.
4.4 To the extent permitted by law, all other warranties where implied or otherwise, not set out in these Terms are excluded and Seller is not liability in tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate Customer for:
4.4.1 any increased costs or expenses;
4.4.2 any loss of profit, revenue, business, contracts or anticipated savings;
4.4.3 any loss or expense resulting from a claim by a third party; or
4.4.4 any special, indirect or consequential loss or damage of any nature whatsoever caused by Seller’s failure to complete or delay in completing the order to deliver the Goods.
5.1 Delivery of the Goods will be made to an address nominated by the Customer on the order. The Customer must make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
5.2 Delivery is deemed to occur just prior to the Goods being unloaded from a carrier at the nominated address on the order.
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 installments at the discretion of Seller.
5.4 Risk in accepting the Goods passes on delivery to the Customer.
5.5. All Additional Charges (including delivery) are payable by the Customer in addition to the Purchase Price of the Goods.
5.6. To the extent permitted by law, return of Goods will not be accepted by Seller except by prior agreement in writing with Seller and custom Goods will not be returnable. Any Goods returned will be subject to a restocking charge of 15% of the Purchase Price of those Goods, must be free of damage and of acceptable quality and condition and all freight charges are to be pre-paid by Customer to the Seller.
6. Price and Payment
6.1 The Customer must pay the Purchase Price and the Additional Charges 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. Interest is charged at the rate of 1.5% per month or part of a month from the expiry of that period until the date payment is received by Seller.
6.4 Commencing 1st December 2015, payments on account that are then settled by credit card will attract a 1.6% (plus GST) surcharge. Credit card payments made at the time of placing an order (such as selecting the credit card option online) will remain surcharge free.
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 and unregistered 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;
8.3.3 if the Goods cannot be distinguished from similar Goods which the Customer has or claims to have paid for in full, Seller may in its absolute discretion seize all goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of Seller and the Customer may be ascertained. Seller must promptly return to the Customer any goods the property of the Customer and Seller is in no way liable or responsible for any loss or damage to the Goods or for any loss, damage or destruction to the Customer's business howsoever arising from the seizure of the Goods.
8.3.4 In the event that the Customer uses the Goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for Seller. Such part will be an amount equal in dollar terms to the amount owing by the Customer to the Seller at the time of the receipt of such proceeds. The Customer will pay Seller such funds held in trust upon the demand of Seller.
9. Personal Property Securities Act (“PPSA”)
9.1 Defined terms in this clause have the same meaning as given to them in the PPSA.
9.2 Seller and Customer acknowledge that these Terms constitute a Security Agreement and give rise to a Purchase Money Security Interest (“PMSI”) in favour of Seller over the Goods supplied or to be supplied to the Customer as Grantor pursuant to the Terms.
9.3 The Goods supplied or to be supplied under these Terms fall within the PPSA classification of ”Other Goods” acquired by the Customer pursuant to these Terms.
9.4 Seller and the Customer acknowledge that Seller, as Secured Party, is entitled to register its interest in the Goods supplied or to be supplied to the Customer as Grantor under the Terms on the PPSA Register as Collateral.
9.5 To the extent permissible at law, the Customer:
9.5.1 waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer, as Grantor, to Seller.
9.5.2 agrees to indemnify Seller on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;
(a) registration or amendment or discharge of any Financing Statement registered by or on behalf of Brady Australia Pty Ltd; and
(b) enforcement or attempted enforcement of any Security Interest granted to Brady Australia Pty Ltd by the Customer.
9.5.3 agrees that nothing in sections 130 to 143 of the PPSA will apply to the Terms or the Security under the Terms;
9.5.4 agrees to waive its right to do any of the following under the PPSA:
(a) receive notice of removal of an Accession under section 95;
(b) receive notice of an intention to seize Collateral under section 123;
(c) object to the purchase of the Collateral by the Secured Party under section 129;
(d) receive notice of disposal of Collateral under section 130;
receive a Statement of Account if there is no disposal under section 132(4);
(e) a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged;
(f) receive notice of retention of Collateral under section 135;
(g) redeem the Collateral under section 142; and
(h) reinstate the Security Agreement under section 143.
10. 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.
To the full extent permitted by law, Customer will indemnify Seller and keep Seller indemnified from and against any liability and any loss or damage Seller may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms by Customer or its representatives.
12.1 These Terms are to be construed in accordance with the laws from time to time in the State of New South Wales. The parties submit to the non-exclusive jurisdiction of the State of New South Wales.
12.2 These Terms 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.
12.3 Any conditions found to be void, unenforceable or illegal may, to that extent be severed from the Agreement.
12.4 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.
13. Manufacturer’s Warranty
13.1 Where the Seller has not manufactured the Goods, the Seller will pass on any warranty provided by the manufacturer of the Goods to Customer. To the full extent permissible by law, Seller will be under no liability whatsoever except for the express conditions as detailed in and stipulated in the manufacturer's warranty.
13.2 Subject to clause 13.1 and clause 13.3, where the Seller has manufactured the Goods, the Seller warrants to the Customer that the Goods will be free from defects in materials supplied by Seller for a period of 12 months from the date of delivery (“Warranty Period”), time being of the essence. Seller’s obligation under this warranty, and subject approval of the claim by Seller or their duly appointed representatives, Seller may repair or replace the Goods. If a replacement part is supplied, the Warranty Period remains based on the original date of delivery of the Goods to the Customer. This warranty is not transferable.
13.3 The conditions applicable to the warranty given in clause 13.2
(a) The warranty does 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; or
(vi) any accident or act of God; or
(vii) any alteration of the Goods.
(b) The warranty ceases and the Seller is in no circumstances 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 is not liable to compensate the Customer for any delay in either replacing or repairing
the workmanship/Goods or in properly assessing the Customer's claim.
(d) To the extent permitted by law, all costs of disposal, re-installation, cartage, freight, kilometre expenses, travel and insurance associated with this warranty are to be paid by the Customer including all costs of Seller in attending to the assessment of the warranty claim where the defect in the Goods is not covered by this warranty.
(e) To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these warranty terms and conditions are excluded and Seller is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate you for:
(i) any increased costs or expenses;
(ii) any loss of profit, revenue, business, contracts or anticipated savings;
(iii) any loss or expense resulting from a claim by a third party;
(iv) any special, indirect or consequential loss or damage of any nature whatsoever caused by the Seller’s failure in complying with its obligations.
13.4 The following statement applies if the supply of the Goods to Customer is a consumer sale as defined in the Australian Consumer Law. In this statement, "our" means "Seller" and "you" means the "Buyer". "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".
13.5 The benefits given to the Customer under this warranty are in addition to other rights and remedies of the Customer under a law in relation to the Goods to which this Warranty applies.
14. First Aid Kits
Where the Goods are First Aid Kits, this clause applies.
First Aid Kits are provided by the Seller comply with Occupational Health and Safety Acts in each of the States and Territories of Australia at the time of delivery. The Seller accepts no liability in the event that the contents of the First Aid Kits of any of the First Aid Kits provided are not maintained or stocked by the Customer (including but not limited to, goods being past their recommended expiry dates) in accordance with the relative Occupational Health and Safety Act.