In these terms and conditions:
The "Supplier” means Kemlan Industries Pty Ltd, a company duly incorporated in the State of NSW; and the "Customer” means the purchaser or person or entity whose order for the purchase of the supply goods is accepted by the Supplier.
These terms and conditions apply to every sale contract between the Supplier and the Customer and by the Supplier to the Customer and any terms and conditions of the Customer's order deviating from or inconsistent with these terms and conditions are expressly excluded, obviated and rejected by the Supplier. This exclusion and rejection includes any statement by the Customer that the Customers terms and conditions shall prevail notwithstanding any stipulation by the Customer regarding the manner of declaring such rejection. A contract is only concluded between the Supplier and the Customer for the supply of goods when the order has been accepted by the Supplier. The terms of this clause apply to every quotation or offer by the Supplier for the supply of goods.
All prices quoted are inclusive of GST and all prices do not include insurance or delivery charges and the supply of invoice is the goods sold at the Suppliers price relevant to the goods ordered the date of delivery of each order. Where the Supplier publishes or discloses a price list, this list is an invitation to treat only and the Supplier reserves the right to accept or reject in its absolute undefeated discretion any orders which may be received by it. Any price list by the Supplier is subject to alteration at any time without any notice.
The Customer agrees to and will pay in accordance with the invoice rendered by the Supplier namely either by:
Payment in full prior to delivery of the goods;
Terms as stated.
If the Supplier extends the trading terms to the Customer, payment for all goods sold would be 30 days EOM, that is thirty (30) days from the end of the following month from the date of invoice. Interest is payable by the Customer, immediately on demand by the Supplier on all amounts overdue to the Supplier from the date of sale of the goods until payment of the rate of 18% per annum, however all interest charges will be waived by the Supplier in the event that payment is made to the Supplier in the time stipulated above. Where payment is not made try the due date, the Customer shall, in addition to any other obligations imposed hereunder, pay to the Supplier on demand all costs of the Supplier (including but not limited to storage, delivery, collection obsolescence and legal costs on a full indemnity basis).
All payments received by the Supplier shall be applied as follows:
First, towards any costs of the Supplier referred to above (or any part thereof);
Secondly, towards any interest payable as set out above (or any part thereof); and
Thirdly, towards any other amounts payable by the customer to the Supplier.
Time of payment for any goods sold to the Customer is an essential term of any contract between the Supplier and the Customer.
The risk in the goods sold pass to the Customer when all or part of the goods are loaded for consignment at the Supplier’s warehouse whether by carrier employed or engaged by the Supplier or the Customer. Notwithstanding anything contained herein, property in and legal title to the goods does not pass to the Customer until payment for all debts owing to the Supplier by the Customer has been received by the Supplier. Until such payment has been received by the Supplier, the Customer will store the goods separately and apart from its own goods and those of any other person or company. The Supplier is entitled to retake possession of all goods delivered until all debts owing to the supplier by the Customer have been paid in full. The Customer may resell any of the goods on normal commercial terms before the Supplier is paid in full provided that:
The Customer resells as principal and has no right to commit the Supplier to any contractual relationship or liability to any third party; and
Subject to (a), as between the Supplier and the Customer, the Customer resells as fiduciary agent and bailee of the Supplier; and
The Customer holds all rights in respect of the resale proceeds on behalf of the Supplier and, on request of the Supplier, will assign any claim against any such third party for any unpaid debt and for this purpose the Customer irrevocably appoints the directors of the Supplier for the time being as joint and several attorneys of the Customer to sign any documents to give effect to such assignment; and
The Customer holds the proceeds of any resale or insurance claim on trust for the Supplier until the Supplier has been paid in full for those goods which are subject to resale or insured loss.
Until payment of all debts owing to the Supplier by the Customer, the Supplier may, at its discretion, without further notice and without prejudice to any other of its rights, retake possession of the goods and resell them, or any of them, and may enter upon the Customers premises, by its servants or agents, for that purpose, without any liability on the part of the Supplier for any loss or damage suffered as a consequence of such entry or retaking of possession and the Customer hereby agrees to provide the Supplier with a new revocable license to so enter any premises occupied by it if:
a. There is a breach of any term of any contract between the Supplier and the Customer; or
b. The Customer has provided any false or misleading information to the Supplier, including
information set out in any application for credit or to open an account with the Supplier; or
c. The Customer commences to be wound up or is placed in liquidation, under official management, or a receiver, or a receiver and manager or voluntary administrator is appointed in respect of the Customer, its undertaking of property or any part thereof, or an encumbrancer, by itself or by an agent, takes or purports
to take possession of the Customers undertaking or property or any part thereof; or
d. The Customer parts with possession of the goods or any of them otherwise than by way of sale in
the ordinary course of its business.
These provisions apply despite any arrangement under which the Supplier provides credit to the Customer and these provisions will prevail to the extent of any inconsistency between these provisions and any other agreement or arrangement entered into by the Customer and the Supplier. In addition, the Supplier may recover the purchase price of the goods sold to the Customer by legal proceedings and may file an application for the appointment of a liquidator to the Customer notwithstanding that property in the goods has not been passed to the Customer.
The Customer will, at its own cost, insure the goods in the Suppliers name, against such risks as a prudent Owner of the goods would insure for at their full insurable value.
The cancellation of any contract of sale between the Customer and the Supplier requires an approval in writing from the Supplier otherwise the goods will be delivered to the Customer and the Supplier will be entitled to payment from the Customer
The Supplier is not obliged to supply goods in relation to any contract and may cancel the contract at any time:
There is a breach of any term of any contract between the Supplier and the Customer, or
The Customer has provided any false or misleading information to the Supplier including
information set out in any application for credit or to open account with the Supplier; or
The Customer commences to be wound up or is placed under official management, or receiver, or
receiver and manager or voluntary administrator is appointed in respect of the Customer, its undertaking or property or any part thereof, or an encumbrancer, by itself or by an agent, takes or purports to take possession of the Customer's undertaking or property or any part thereof; or
The Supplier is unable to supply goods as a result of the failure of any supplier of the Supplier to deliver goods or to provide services which are required in order for the Supplier to supply the goods to the Customer.
7. ACCEPTANCE AND CLAIMS
Acceptance of the goods delivered shall be deemed for all purposes to have taken place at the expiration of seven (7) days from the date of each delivery. No goods will be accepted for return unless agreed in writing by the Supplier prior to such return and then only upon conditions acceptable to the Supplier and at the Customers entire risk as to loss or damage and provided the goods are and remain sealed in a manner in which they were delivered. Where the Supplier agrees to accept goods for return, a service fee of $20.00 and a restocking charge of 15% of the price of the goods returned shall be paid by the Customer ("Handling Fee"). The Supplier's liability for a breach of any conditions or warranty implied by Division 3 of Part IV of the Trade Practices Act 1974 (other than a condition warranty implied by Section 69 of the Act) is limited to such one or more of the following as the Supplier decides:
The replacement of the goods or the supply of equivalent goods; or
The repair of the goods; or
The payment of the cost of replacing the goods or of acquiring equivalent goods; or
The payment of the cost of having the goods repaired.
Without limiting the generality of any other provision of these terms and conditions but subject to the above, the Supplier is not under any liability to the Customer or to any other person in respect of any loss or damage (including consequential loss or damage) however caused, which may be suffered or incurred or which may arise either directly or indirectly in respect of the supply of the goods or any ancillary services of advice with the failure or omission on the part of the Supplier to comply with its obligations hereunder.
Except as expressly provide to the contrary in these terms and conditions, all terms, conditions, warranties, undertakings, inducements or representation whether express, implied, statutory or otherwise are excluded to the extent permitted by law, including but not limited to the United Nations Convention on contracts for international sale of goods.
8. FORCE MAJEURE
If deliveries prevented or delayed, in part or at all, by reason of act of god, or the consequence thereof including, but not limited to fire, flood, typhoon, earthquakes, or by reason of riots, wars, hostilities, government restrictions, trading embargoes, strikes, lock outs, labour disputes, boycotting of goods, ship shortage, manufacturer’sbankruptcy, delays or damage in transportation, or other causes beyond the Supplier’s control, the Suppliermay, at its option, perform the contract or the unfulfilled portion thereof within a reasonable time from the removal of the cause preventing a delaying performance, or rescind unconditionally and without liability, this contract or the unfulfilled portion thereof.
9. SPECIAL ORDER
Where the Customer places an order in writing with the Supplier for non-stock items, the Supplier will not accept the return of non-stock items unless the manufacturer agrees to accept the return from the Supplier. The Supplier may deduct transport, insurance handling and re stocking charges due to the Customer where any such items are returned to the Supplier and their return is accepted by the Supplier.
The Supplier reserves the right to substitute some other make or brand with similar specifications if any item ordered by the Customer is not available. The Customer is deemed to an accepted substitution where it does not object to same within seven (7) days from the date of delivery of goods (unless a longer period is imposed by law). If the Customer is not satisfied with the substituted goods, the goods may be returned to the Supplier for credit.
The Supplier may deliver the goods by instalment or partial shipment and the Customer will accept each such delivery. Requirements of the Customer are not a condition or of the essence of the contract. The Supplier is under no liability for either direct or consequential loss or damage to the Customer arising from delay or postponement in delivery.
Kemlan Industries Pty Ltd warrants to the purchasers that the Product will, under proper use, care and maintenance, be free from defects due solely to faulty workmanship or materials in accordance with the prescribed warranties set out in the manufacturer's warranty for products manufactured by Kemlan Industries Pty Ltd and Heat-N-Glo. Except for this warranty or as required by mandatory operation of the law including under the Trade Practices Act 1974 and equivalent State legislation, all conditions or warranties in respect of the Product, express or implied, statutory or otherwise (including without limitation any warranties as to fitness for any particular purpose), are hereby excluded except where required under such legislation Kemlan Industries Pty Ltd shall not be liable to any purpose for any injury, loss or damage, however arising. Where the above legislation allows, Kemlan Industries Pty Ltd's liability is limited (at Kemlan Industries Pty Ltd's option) to replacement of equivalent Product, payment of the cost of the replacing the Product or supplying equivalent Product, or the repair or the cost of the repair of the Product. Any modifications or repairs made to the Product without the prior written authorisation of Kemlan Industries Pty Ltd shall invalidate this warranty.
13. CLERICAL ERRORS.
Clerical errors, typing arms or other eras in computations, catalogue, quotation, acceptance, offer, invoice, delivery document, credit note or specification of the Supplier shall be subject to correction by the Supplier.
All modifications and amendments to these provisions and any approvals hereunder shall be in writing by duty authorised signatory, and if otherwise, shall not be binding upon the Supplier.
15. GOODS AND SERVICES TAX (GST)
a. But for this clause, an amounts expressed or described in any sale contract between the Supplier
and the Customer are GST inclusive amounts.
b. Subject to clause 15 (a), if any GST (within the meaning of A New Tax System Goods and Services Act
1999 as amended from time to time (GST) is payable by any party (Supplier) in respect of the supply of any goods, services, real property or any other things to another party (Customer), then the amount expressed or described in any sale contract (Original Amount) is to be increased so that the Supplier receives an amount (Increased Amount) which, after subtracting the GST liability of the Supplier on that Increased Amount, result in the Supplier retaining the Original Amount after payment of the GST liability.
c. The Supplier will do all things reasonably available to it to assist the Customer to claim on a timely basis any input tax credits (if any) the Customer may be entitled to claim for any acquisition of goods, services, real property or any other thing from the Supplier. This includes the Supplier maintaining its registered status for GST purposes, and issuing tax invoices for supplies made under this agreement on a timely basis as reasonably requested by the Customer.
All contracts between the Supplier and the Customer shall be governed by the laws of the State of NSW and the parties shall submit to the non-exclusive jurisdiction of the Courts of the State of NSW (and any Courts which can hear appeals from such Courts).
Any contract between the Supplier and the Customer may be executed on behalf of the Customer by any agent or employee of the Customer and the Customer shall bound by these terms and conditions irrespective of whether any such execution was unauthorised or fraudulent.
No employee, agent or contractor of the Supplier (except where authorised in writing by the managing director of the Supplier) has any authority to give any warranties or make any representations about the performance, specifications or fitness for the purpose of the products other than those specified in the Supplier's authorised written material. All such unauthorised warranties and representations are expressly excluded.
Each supply made by the Supplier will be made under a separate contract and will be invoiced separately. Each invoice will be payable by the Customer in full, in accordance with the specified terms of payment, without reference to and despite any default in any supply covered by any other invoice or order.
1st October 2018