not sell, assign or let them or any interest in them, or permit any charge, pledge, lien or other
encumbrance to be created in relation to them.
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What if purchaser disposes of goods? |
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3.3 |
If the purchaser disposes of any of the goods while they remain the property of the sellar, or any of those
goods become part of another product sold by the purchaser, the purchaser holds the proceeds on trust
for the seller up to the amount it owes the seller in respect of those goods, and must immediately pay that
amount to the seller. |
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4. Risk, insurance and damage |
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Risk passes to purchaser on delivery |
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4.1 |
The risk in the goods passes to the purchaser when theyare delivered or when they are trasferred to the
purhcaser’s transport. |
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Purchaser must insure goods |
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4.2 |
The purchaser must keep the goods insured on usual terms against all risks usually insured against for
goods of that kind from the time the risk in the goods passes to the purchaser until the time the property
in the goods passes to the purchaser. The purchaser holds the proceeds of that insurance on trust for the
seller up to the amount it owes the seller in respect of those goods, and must immediately pay that amount
to the seller. |
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Damage discovered after delivery |
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4.3 |
The seller will not be liable for damage discovered after delivery unless: |
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4.3.1 |
The purchaser gives written notice to the seller and, if applicable, the seller’s carrier within 4 days
after the date of delivery; and |
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4.3.2 |
The purchaser gives the seller reasonable opportunity to inspect the goods in the same condition
and place in which they were delivered. |
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Seller’s liability for defective goods |
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4.4 |
The seller is liable for a defect in goods it manufactures that arises from faulty design, materials or
workmanship, but not from fair wear and tear. The seller is only liable if the defect appears after the date of
delivery. In the case of goods not manufactured by the seller, the seller will give the purchaser the same
benefit of any warranty as given to it by the manufacturer or supplier of goods to the extent that the seller
is able to successfully claim under that warranty. |
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Purchaser must deliver defective goods to seller |
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4.5 |
The purchaser must deliver defective goods to the seller’s premises or other premises nominated by the
seller within 7 days after the date when the defect is discovered. |
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Exclusion or limitation or warranties |
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4.6 |
All other conditions and warranties of any type in relation to the goods are excluded to the maximum extent
allowed by the law. The liability of the seller for a breach of any condition or warranty implied by law is limited
to any one or more of the following, a t the option of the seller: |
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4.6.1 |
in the case of a breach relating to goods |
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(a) the replacement of the goods or the supply of equivalent goods |
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(b) the repair of the goods |
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(c) the payment of the cost of replacing the goods or of acquiring equivalent goods |
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(d) the payment of the cost of having the goods repaired. |
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4.6.2 |
in the case of services |
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(a) the resupply of the servies |
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(b) the payment of the cost of having the services resupplied |
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Seller indemnified if goods used improperly |
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4.7 |
The purchaser will keep the seller indemnified against any loss, damage or liability arising from a use of the
goods that is not in accordance with the seller’s instructions. |
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5. Default |
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Purchaser must pay interest if payment not made on time |
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5.1 |
The purchaser must pay the seller interest on any amount not paid on time. The interest will be the rate
published under the Penalty Interest Rates Act plus 2%. It will be calculated daily and capitalised monthly
unless otherwise agreed upon by the seller and purchaser. |
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Seller’s right to repossession and suspension of delivery |
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5.2 |
If the purchaer fails to pay on time, the seller has the right to enter the purchaser’s premises and repossess
the goods. The seller is not liable for any loss, damage or liability suffered. The sellar is entitled to keep or
sell the repossessed goods. The seller is also entitled to suspend any other delivery to the purchaser. The
purchaser remains bound by its obligations to the seller. |
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Seller’s right to end contract |
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5.3 |
The seller may by written notice to the purchaser end the contract of sale immediately in any of the following
circumstances: |
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5.3.1 |
the purchaser fails to perform any of its obligations under the contract of sale. |
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5.3.2 |
the pruchaser being a corporation becomes insolvent, or ceases, or indicates that it is about to cease,
to carry on business |
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5.3.3 |
anything happens that reasonably indicates that there is a significant risk that the purchaser is or
will become unable to pay debts as they fall due. This includes execution or distress being levied
against any income or assets of the purchaser; or any guarantor; a meeting of the purchaer’s
creditors being called or held; a step being taken to place the purchaser under administration; and
the pruchaser entering into any type of arrangement with, or assignment for the benefit of, all or any
class of its creditors, or being subject to a deed of company arrangement. |
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5.3.4 |
a step is taken to have receiver, receiver and manager, provisional liquidator, liquidator or
administrator appointed to that person or any of its assets. |
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5.3.5 |
The guarantors or any one of them becomes bankrupt or insolvent under administration. |
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Seller’s rights if it ends contract |
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5.4 |
If the contract is ended because of the purchaser’s default and the purchaser owes the seller money: |
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5.4.1 |
the money becomes payable immediately to the seller and bears interest in accordance with clause 5.1 |
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5.4.2 |
the seller is entitled to enter the purchaser’s premises and repossess any of the goods in the
purchaser’s possession or control |
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Seller’s rights if unable to perform |
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5.5 |
If the seller’s ability to perform its obligations under the contract of sale is adversely affected by: |
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5.5.1 |
war |
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5.5.2 |
strike |
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5.5.3 |
trade dispute |
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5.5.4 |
damage to plant or machinery |
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5.5.5 |
shortage of any material or labour; or |
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5.5.6 |
any cause beyond the seller’s control.
The seller may, if it chooses, end the contract of sale or suspend if for up to 3 months by giving the
purchaser written notice. The seller will not be liable for any loss, damage or liability which the purchaser
incurs. |
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Seller’s other rights and remedies |
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5.6 |
The rights and remedies provided in clauses 5.3, 5.4 and 5.5 will not affect any other rights or remedies
available to the seller. |
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6. Guarantor’s obligations |
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6.1 |
The Guarantors do hereby jointly and severally guarantee each of the obligations of the purchaser as set
out in this agreement |
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6.2 |
The guarantors do hereby indemnify the seller against any and all losses claims demand suits or actions
that they may incur by reason of the breach by the purchaser of any of its obligations. |
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7. Miscellaneous |
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Assignment |
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7.1 |
Neither party may assign any right under the contract of sale without the other party’s written consent. |
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Cancellation |
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7.2 |
An order may only be cancelled with the seller’s written consent. The seller is entitled to charge 30% of the
price for the goods as a condition of consent. |
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Description of goods |
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7.3 |
The description of the goods specified in the invoice is given for identification only and does not create a
contract of sale by description. |
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Governing law |
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7.4 |
The contract of sale is governed by the law of the State of Victoria. |
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Severability |
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7.5 |
If a clause or part of a clasue can be read in a way that makes it illegal, unenforceable or invalid, but can
also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any
clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed
from this document, but the rest of this document is not affected. |
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Waiver |
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7.6 |
The fact that either party fails to do, or delays in doing, something is entitled to do under the contract of
sale, does not amount to a waiver of its right to do it. Any waiver must be in writing. A written waiver by [the
client] is only effective in relation to the particular obligation or breach in respect of which it is given. It is
not to be taken as an implied waiver of any other obligation or breach; or as an implied waiver of that
obligation or breach in relation to any other occasion. |
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8. Charge |
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8.1 |
Each of the purchasers and each of the guarantors does hereby charge all of their respective right title and
interest in any real estate asset owned by them in the State of Victoria in favour of the seller for the purpose
of better security any obligation that has arisen or may hereafter arise under the terms of this agreement. |
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8.2 |
Each of the purchaser and each of the Guarantors does hereby acknowledge that the seller shall be at
liberty to lodge a caveat in the office of the Registrar of Titles to secure the charge hereby granted. |
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