- In these Terms of trade, unless otherwise indicated by the context:
- Application means the application by the Buyer to the Seller for commercial credit;
- Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in ;
- Buyer means the person, firm or company placing the order with the Seller;
- Confidential Information in relation to a party means information that:
- is designated or marked by that party as confidential;
- is comprised in or relating to any Intellectual Property Rights of the party;
- concerns the subject matter or any of the terms of this document;
- is directly or indirectly obtained from the other party under or in connection with these Terms of trade, including any information relating to a party’s financial position, business affairs, customers or suppliers; or
- the other party knows or ought to know is confidential but does not include information which:
- is or becomes public knowledge other than by breach of these Terms of trade;
- is in the possession of the receiving party without restriction in relation to disclosure before the date of receipt from the disclosing party;
- has been independently developed or acquired by the receiving party;
- Contract means the contract formed between the Seller and the Buyer by an Order accepted by an Order Acknowledgement;
- Goods means any goods , services or materials to be supplied by the Seller;
- GST means the goods and services tax implemented under the GST Law;
- GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth) and all related Commonwealth of Australia legislation, and includes all regulations, determinations and rulings associated with or made under any such legislation;
- Intellectual Property Rights means any and all intellectual and industrial property rights throughout the world including rights in respect of or in connection with:
- inventions (including patents);
- trade marks;
- designs; and
- circuit layouts whether existing now or in the future, and whether registered or not registered and includes any rights to apply for the registration of such rights and includes all renewals and extensions;
- Invoice means the sales invoice issued by the Seller to the Buyer in which these Terms of trade are deemed to be incorporated;
- Loss means all liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis and whether incurred or awarded and disbursements reasonably incurred) including fees of any kind and nature whether arising in contract or tort (including negligence) or under any statute;
- Order is defined in clause 5.1;
- Order Acknowledgement is defined in clause 5.2;
- Price List means the current recommended price list for the Goods published by the Seller including any updated price list annexed to any agreement between the Seller and the Buyer; and
- Quotation means the form of quotation submitted by the Seller in which these Terms of trade are deemed to be incorporated.
- Seller means Big Daddy’s Fishing Blog and its associates.
- In these Terms of trade, unless otherwise indicated by the context:
- words importing the singular include the plural and vice versa;
- headings are for convenience only and do not affect interpretation of these Terms of trade;
- a reference to a clause, paragraph or schedule is a reference to a clause, paragraph or schedule of these Terms of trade;
- where any word or phrase is given a definite meaning in these Terms of trade, any part of speech or other grammatical form of that word or phrase has a corresponding meaning;
- an expression importing a natural person includes a body corporate, partnership, joint venture, association or other legal entity;
- a reference to a statute, statutory provision or regulation includes all amendments, consolidations or replacements thereof;
- a reference to a party to a document includes that party’s legal personal representatives, successors and permitted assigns;
- a covenant or agreement on the part of or for the benefit of two or more persons binds or benefits them jointly and severally; and
- a reference to a body, whether statutory or not;
- which ceases to exist; or
- whose powers or functions are transferred to another body;
- In these Terms of trade, unless otherwise indicated by the context:
is a reference to the body which replaces it or which substantially succeeds to its powers or functions;
- expressions used in these Terms of trade that are defined in the Copyright Act 1968 (Cth) or the Circuit Layouts Act 1989 (Cth) and that are not separately defined in these Terms of trade, have the meanings attributed to them in such Acts;
- a reference to $ or dollar is to Australian currency (unless otherwise stated); and
- references to payments to any party to these Terms of trade will be construed to include payments to another person upon the direction of such party.
2. Quality Management
All present and future contracts for sales and deliveries of the Goods will also be covered by and subject to the Seller’s Quality Management documents which are equally binding for both the Buyer and the Seller.
3. Prices and Quotations
- The price payable for the Goods will be those specified in the Price List current at the date of delivery, including GST, unless otherwise stated and will be subject to variation by the Seller, at any time, without notice.
- Packing material is not taken back by the Seller.
- Notwithstanding any provision in the Contract, the Seller may increase the price of the Goods after an Order Acknowledgement and prior to delivery of the Goods if the price increase results from an increase in the price of any input, which comprises part of these Goods, or arises as a result of the introduction of any legislation, regulation or government policy or changes in currency exchange rates.
- The Buyer agrees to pay all necessary additional taxes and charges incurred by the Seller in meeting the Buyer’s Order.
Any current or future tax or governmental charge (or increase in same) affecting the Seller’s costs of production, sale, or delivery or shipment, or which the Seller is otherwise required to pay or collect in connection with the sale, purchase, delivery, storage, processing, use or consumption of the Goods will be for the Buyer’s account and will be added to the price.
5. Orders, Order Acknowledgement and Contract
- An Order or an offer to purchase can be made by the Buyer in writing or verbally.
- An Order is accepted when the Buyer receives from the Seller an Order Acknowledgement in writing.
- When an Order is accepted by an Order Acknowledgement the Contract will be wholly documented by any specific term(s) agreed in writing, the Order Acknowledgement and these Terms of trade.
- Any terms and conditions attached to or incorporated in any Order supplied by the Buyer will not form part of the Contract unless such terms are confirmed in the Order Acknowledgement by the Seller.
- Previous dealings between the Seller and the Buyer will not have any effect on the Contract.
6. Shipment and delivery
- Shipments are made FOB the Seller’s shipping point in Australia.
- Risk of loss or damage and responsibility will pass from the Seller to the Buyer upon delivery to and receipt by the Buyer’s carrier.
- Any claims for shortages or damages suffered in transit are the responsibility of the Buyer and will be submitted by the Buyer directly to the carrier.
- Any delivery times made known by the Seller to the Buyer are estimates only and the Seller will not be liable for a late delivery or a non-delivery. Under no circumstances will the Seller be liable for any Loss, damage or delay occasioned to the Buyer or the Buyer’s customers or clients arising from late or non-delivery.
- The Seller will make all reasonable efforts to have the Goods delivered to the Buyer or its designated agent or carrier as agreed between the parties.
- If any variation occurs in the quoted delivery of the Goods, the Seller will notify the Buyer. Failure by the Buyer to object in writing within 7 days of such notification will be deemed to constitute acceptance of the revised delivery date.
- A delivery charge will apply to all deliveries unless otherwise agreed by the Seller.
- Delivery may be made in instalments. Each instalment will be treated as a separate delivery with the price being apportioned in accordance with the proportion of the Goods delivered.
- Where the Goods are for delivery by instalments, any defect in instalment will not be grounds for cancellation of the remainder of the instalments and the Buyer will be bound to accept delivery of the instalment.
- All requests for proof of delivery must be made within a period of 21 days following the date of the Invoice.
- The Buyer will inspect all Goods upon delivery and must give immediate notice to the Seller on delivery or pick up of the Goods of any damage, shortages or anything else not in accordance with the Order. Failure by the Buyer to provide such notice will be deemed to constitute acceptance of the delivery.
- If the Seller delivers less than the full quantity of the Goods, the Buyer may reject those delivered but only with the prior consent of the Seller.
- The Buyer agrees to keep the Goods referred to in this clause 7 until the Seller can arrange the inspection of the damaged Goods or collection of the Goods not in accordance with the Order.
8. Retention of title and risk
- Risk in the Goods passes to the Buyer upon delivery (including all risks associated with unloading) in accordance with clause 6 or upon title of the Goods passing to the Buyer, whichever is the earlier.
- The legal and equitable title to the Goods will only be transferred from the Seller to the Buyer when the Buyer has met and paid all that is owed to the Seller for those Goods including any taxes and expenses payable under these Terms of trade in respect of those Goods and in connection with any outstanding account whatsoever.
- The relationship between the Seller and the Buyer will be fiduciary.
- The Buyer acknowledges that until the Buyer has met and paid all that is owed to the Seller, the Buyer holds the Goods as bailee for the Seller and will keep the Goods separate and in good condition clearly showing and documenting the Seller’s ownership of the Goods.
- The Buyer may sell the Goods to a third party provided that where the Buyer is paid by that third party, the Buyer holds the proceeds, separate from other monies, to the extent of the amount owing by the Buyer to the Seller.
- If the Buyer defaults, in addition to clause 12.2, the Seller may take possession of the Goods wherever the Goods are located and the Buyer agrees that representatives of the Seller may enter upon the Buyer’s premises for that purpose.
- Notwithstanding clauses 8.1 to 8.6, the Buyer is still required to pay the Seller for the Goods already delivered and for the Goods manufactured or ordered to specification and not yet delivered.
9. Measures and performance data
Any and all statements made by the Seller as to the weight, length, quantity, dimension or performance characteristics of the Goods are approximate and should be construed as such by the Buyer.
10. Terms of payment
- Unless otherwise specified by the Seller, terms are net days from date of the Seller’s invoice in US currency or on delivery of the Goods, whichever is earliest.
- Payment is only received by the Seller when it receives cash or when the proceeds of other methods of payment are credited and cleared to the Seller’s bank account.
- If the Buyer fails to make any payment when due, the Seller will have the right, among other remedies, either:
- to terminate these Terms of trade; or
- to suspend further performance under this and/or other Contracts or agreements with the Buyer, which other Contracts or agreements the Buyer and the Seller amend accordingly.
- The Buyer will be liable for all expenses, including legal fees and expenses, relating to the collection of past due amounts.
- If any payment owed by the Seller is not paid when due, it will bear interest at a rate to be determined by the Seller, which will not exceed the maximum rate permitted by law, from the date on which it is due until it is paid.
- Should the Buyer’s financial responsibility become unsatisfactory to the Seller, cash payments or security satisfactory to the Seller may be required by the Seller for future deliveries and for the Goods theretofore delivered.
- If such cash payment or security is not provided, in addition to the Seller’s other rights and remedies, the Seller may discontinue deliveries.
- The Buyer may not assert or exercise any right of set-off against monies payable by the Buyer to the Seller under these Terms of trade.
- The Seller may grant credit to the Buyer subject to these Terms of trade on the basis of the Application and such other documents and information required by the Seller.
- The Buyer authorises the Seller, its employees and agents to make such enquiries as the Seller deems necessary to investigate the credit worthiness of the Buyer including enquiries with persons nominated as trade referees, bankers or other credit providers (information sources). The Buyer authorises the information sources to disclose to the Seller such information concerning the customer, which is requested by the Seller.
- Until the Seller grants the Buyer credit by notice in writing, the Seller will only supply the Goods to the Buyer on the basis of payment in advance.
- The granting of credit does not oblige the Seller to extend any particular amount of credit to the Buyer.
- The Buyer must notify the Seller in writing if there is any change in the shareholding or ownership of the Buyer or any material change in the Buyer’s financial position.
- The Buyer will be in default if:
- the Buyer breaches these Terms of trade;
- payment for the Goods has not been received by the Seller by the due date of payment;
- the Buyer, being an individual, commits an act of bankruptcy or becomes insolvent under administration;
- the Buyer, being a body corporate, becomes an externally administered body corporate or has an application for winding up filed against it; or
- the Seller forms the opinion that the Buyer’s credit worthiness or credit standing alters from that indicated in its Application.
- If the Buyer defaults, the Seller may:
- charge interest on outstanding amounts at % per annum (or any greater amount permitted at law), calculated on a daily basis; and/or
- treat the whole of the Contract and any other Contract with the Buyer as repudiated and sue for breach of contract; and/or
- claim the return of any Goods in the Buyer’s possession where title has not passed to the Buyer; and/or
- without notice to the Buyer withdraw or vary any credit the Seller has provided to the Buyer; and/or
- without notice to the Buyer make any monies owing by the Buyer to the Seller on any account due and payable; and/or
- seek reimbursement for payments made by the Seller for its full cost of recovering or attempting to recover amounts not paid by the Buyer when due including, but not limited to, fees paid to a collection agency or legal fees and expenses of a lawyer.
13. Cancellation and returns
- The Seller is not bound to accept cancellation of the Order nor the return of the Goods except by prior arrangement. If arrangements have been made the following apply:
- the Goods must be returned within 7 days of delivery;
- a restocking fee may be charged; and
- outward and inward freight and transport charges are the responsibility of the Buyer unless otherwise agreed by the Seller. If not prepaid by the Buyer, they will be deducted from any credit.
- The following Goods cannot be returned for credit:
- Goods specially made, modified or imported for the Buyer; or
- Goods altered or damaged by the Buyer.
- Unless otherwise agreed between the Seller and the Buyer, upon cancellation prior to delivery, any deposit paid by the Buyer will be forfeited to the Seller.
14. Warranties and liabilities
- Subject to clause 14.3, all Goods supplied by the Seller are covered by such warranty as is specified by the manufacturer and supplied subject to the product standards detailed by the manufacturer.
- The Buyer will notify the Seller in writing of any defect in the Goods supplied. The Buyer will not carry out any remedial work to the alleged defective Goods without first obtaining the written consent of the Seller to do so.
- If under any law any terms which apply to the sale of Goods or services under this Terms of trade cannot be legally excluded, restricted or modified then those terms only apply to the extent required by law.
- All terms, which would otherwise be implied, are excluded except as stated here.
- To the extent permitted by law, the Seller’s sole liability for any breach of any term is limited to and will be completely discharged by any one of the following as determined to the Seller:
- the replacement of the Goods or the supply of equivalent Goods;
- the repair of the Goods;
- the payment of the cost of having the Goods repaired; or
- the payment of the cost of replacing the Goods or of acquiring the Goods.
- Except as expressly provided in these Terms of Trade and to the extent permitted by law:
- the Seller is not liable to the Buyer (and any party claiming through the Buyer against the Seller) for any claim made in connection with the Contract, tort, under statute, in equity or otherwise in respect of defects in delivered Goods or for Loss or damage to person or property arising from or caused by such defects;
- the Seller will not be liable for any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the Goods;
- indirect, special or consequential loss or damage includes:
- any loss of income, profit or business;
- any loss of goodwill or reputation; and
- any pure economic loss and any increased operating costs suffered or incurred by any person whether arising in contract or tort (including negligence) or under any statute;
- the Buyer indemnifies the Seller against any liability to or action by a third party for infringement of a patent, registration, design trademark or copyright in respect of the Goods manufactured to the Buyer’s specification; and
- all Goods are supplied in accordance with Australian industry standards and the Seller will not be liable to the Buyer for the condition or quality of Goods that comply with these standards.
15. Customer complaints and inquiries
- The Distributor Technical Service Representative covenants that it will be responsible as the first point of contact for technical support with the customer and/or end-users. The Distributor Technical Service Representative will provide a line of communication to the Manufacturer directly in matters of vigilance and post-market surveillance (early warning) in accordance with .
- The Distributor Technical Service Representative will further provide this technical support on the usage of products to the customers based on information supplied by the Manufacturer.
- Customer feedback, the occurrence of incidents and near-incidents will be reported by the Distributor Technical Service Representative within Business Days directly to the Manufacturer and Manufacturer’s Authorised Representative (see below for contact details). The Distributor Technical Service Representative reporting should follow the
16. Force Majeure
- The Seller is not liable for failure to perform the Contract to the extent and for so long as its performance is prevented or delayed because of:
- circumstances outside of the Seller’s control;
- failure of the Seller’s machinery; or
- failure of a supplier to the Seller.
- The Seller will be equipped to delay or cancel delivery or reduce the amount of the Goods delivered if it is prevented from fulfilling the Contract by events beyond the Seller’s control.
17. Patents and copyrights
- Subject to the limitations of clause 14, the Seller warrants that the Goods sold, except as are made specifically for the Buyer according to the Buyer’s specifications, do not infringe any valid Australian patent or copyright in existence as of the date of the shipment.
- This warranty is given upon the condition that the Buyer promptly:
- notify the Seller of any claim or suit involving the Buyer in which such infringement is alleged;
- co-operate fully with the Seller; and
- permit the Seller to control completely the defence, settlement or compromise of any such allegation of infringement.
- The Buyer acknowledges that the Seller remains the sole owner of all Intellectual Property Rights in the Goods.
- No Intellectual Property Rights in the Goods will vest in the Buyer and if they do the Buyer will make all applications, execute all documents and do all acts and things reasonably required to assign any such Intellectual Property Rights in the Goods to the Seller.
18. Confidentiality and disclosure of Information
- Subject to clause 19.2, each party will keep confidential, treat as privileged, and not directly or indirectly make any disclosure or use, or allow any announcement to be made of the Confidential Information of the other party.
- A party may make any disclosure in relation to these Terms of trade:
- to any professional adviser, financial adviser, banker, financier or auditor where that person is obliged to keep the information confidential;
- to comply with any applicable law, or any requirement of any regulatory body (including any relevant stock exchange);
- to any of its employees to whom it is necessary to disclose the information;
- to enforce its rights or to defend any claim or action under these Terms of trade;
- to a subcontractor; or
- where the information has come into the public domain through no fault of that party.
- Each party will take all reasonable steps to ensure that its employees, agents or any sub-contractors engaged for the purposes of these Terms of trade do not make public or disclose the other party’s Confidential Information.
- This clause 19 will survive the termination or expiration of these Terms of trade and any Contract between the Buyer and the Seller.
19. Governing law
These Terms of trade are governed by the law of Victoria. Both the Seller and the Buyer submit to the jurisdiction of the courts of that State or Territory to settle or resolve any disputes that may arise out of or in connection with the Contract of which these Terms of trade form part.
No waiver will be effective unless it is in writing and signed by the party against whom that waiver is claimed. No waiver will be or be deemed to be a waiver of any other or subsequent breach.
21. Entire agreement
These Terms of trade constitute the entire agreement, understanding and arrangement (express or implied) between the parties relating to the matters dealt with in or necessary to implement these Terms of trade and supersedes and cancels any previous agreement, understanding, arrangement or representation by either party relating thereto, whether written or oral.
22. No assignment
The Buyer may not directly or indirectly (including by way of sub-contract, security, reconstruction or amalgamation) assign, transfer or otherwise dispose of any of its rights under or interest in, or any of its obligations or liabilities under, or in connection with, or arising out of, any of these Terms of trade, except with the prior written consent of the Seller.
23.Seller may assign
The Seller may at any time assign, licence or novate any of its rights under or interest in, or any of its obligations or liabilities under, or in connection with, or arising out of, these Terms of trade.