a) “Seller” shall mean WISE Promotions
b) “Customer “shall mean the buyer or any person acting on behalf of and with the authority of the buyer.
c) “Goods” shall mean goods or services supplied by the Seller to the Customer.
d) “Guarantor” means that person or entity who agrees herein to be liable for the debts of the Buyer on a principal debtor basis
e) “Services” shall mean all services supplied by the Seller to the Customer and includes any advice or recommendations.
f) “Price” shall mean the cost of the Goods as agreed between the Seller and the Buyer subject to clause 4 of this contract.
a) Any instructions received by the Seller from the Customer for the supply of Goods and/or the Customers`s acceptance of Goods supplied by the Seller shall constitute acceptance of the terms and conditions contained herein.
b) Where more than one Customer has entered into this agreement, the Customer shall be jointly and severally liable for all payments of Price.
c) Upon acceptance of these terms and conditions by the Customer the terms and conditions are irrevocable and can only be rescinded in accordance with these terms and conditions or with the written consent of the manager of the Seller.
d) None of the Seller`s agents or representatives are authorized to make any representations, statements, conditions or agreements not expressed by the manager of the Seller in writing nor is the Seller bound by any such unauthorized statements.
e) No term or condition contained in the Customer`s acceptance or order or in any other document purporting to relate to this contract shall add to, amend or invalidate any part of the terms and conditions contained herein.
f) The Customer undertakes to give the Seller not less than fourteen(14) days prior written notice of any proposed change in the Customer`s name and/or any other change in the Customer`s details (including but not limited to, changes in the Customer`s address, facsimile number or business practice).
a) The Goods are as described on the invoices, quotation, work authorization or any other work commencement forms as provided by the Seller to the Customer.
4) Price and Payment
a) At the Seller`s sole discretion the Price shall be either:
i) As indicated on invoices provided by the Seller to the Customer in respect of Goods supplied; or
ii) The Seller`s quoted Price which shall be binding upon the Seller provided that the Buyer shall accept in writing the Seller`s quotation within fourteen (14) days.
iii) All quotations are subject to materials being available at the time an order is received.
b) The Seller reserves the right to change the Price in the event of a variation to the Seller`s order confirmation. Where a variation has been requested, the Customer may incur a variation fee, which amount shall be determined at the sole discretion of the Seller.
c) At the Seller`s sole discretion a deposit may be required. The deposit amount or percentage of the Price will be stipulated at the time of the order of Goods and shall become immediately due and payable.
d) Time for payment for the Goods shall be of the essence and will be stated on the invoice, quotation or any other order forms. If no time is stated then payment shall be on delivery of the Goods.
e) The seller may withhold delivery of the Goods until the Customer has paid for them, in which event payment shall be made before the delivery date.
f) The Price shall be increased by the amount of any GST and other taxes and duties which may be applicable, except to the extent that such taxes are expressly included in any quotation given by the Seller.
5) Delivery of Goods / Services
a) Delivery of the Goods shall be made to the Customer`s address. The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery, or delivery of the Goods shall be made to the Customer at the Seller`s address.
b) Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
c) The Customer shall make all arrangements necessary to ensure the Seller is provided full and clear access for delivery and will at its own expense provide all necessary assistance in unloading the Goods at the nominated place of delivery.
d) The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or less than the quantity purchased provided that:
i) Such discrepancy in quantity shall not exceed 10% and
ii) The Price shall be adjusted pro rata to the discrepancy.
e) The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
f) The delivery date is made in good faith as an estimate only and the Seller shall incur no liability whatsoever if such date is not met, nor will the Seller be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods promptly or at all.
a) If the Seller retains property in the Goods nonetheless, all risk for the Goods passes to the Customer on delivery. Where the Customer has requested special delivery arrangements (i.e. that is delivery to other than the Customer`s premises) then risk in the Goods shall pass to the Customer immediately the Goods leave the premises of the Seller In Sydney. The Seller will not be liable under any circumstances for damage, shortage or loss during transit.
b) If any of the Goods are damaged or destroyed prior to property in them passing to the Customer, the Seller is entitled, without prejudice to any of its other rights or remedies under these Terms and Conditions (including the right to receive payment of the balance of the Price for the Goods) to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract.The promo codes production of these terms and conditions by the Seller is sufficient evidence of the Seller`s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
7) Customer`s Disclaimer
a) The Customer hereby disclaims any right to rescind or cancel the contract or to sue for damages or to claim restitution arising out of any misrepresentation made to him by any servant or agent of the Seller and the Customer acknowledges that he buys the Goods relying solely upon his own skill and judgment and the Seller shall not be bound by nor responsible for any term, condition, representation or warranty other than the warranty given by Manufacturer which warranty shall be personal to the Customer and shall not be transferable to any subsequent Customer.
8) Defects / Returns
a) The customer shall inspect the Goods on delivery and shall within seven (7) days of delivery notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Customers believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions, the Goods shall be conclusively presumed to be in accordance with the terms and conditions and free from any defect or damage. For defective Goods the Seller`s liability is limited to either (at the Seller`s discretion) crediting the costs of the faulty Goods, or replacing the Goods, or repairing the Goods provided that:
i) The Customer has complied with the provisions of clause 8a;
ii) The Goods are returned at the Customer`s cost within seven (7) days of the delivery date;
iii) The Seller will not be liable for Goods which have not been stored or used in a proper manner;
iv) The Goods are returned in the condition in which they were delivered.
a) The warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall be under no liability whatsoever, except for the express conditions as detailed and stipulated in the manufacturers warranty.
10) Intellectual Property
a) Where the Seller has designed or drawn Goods for the Customer, then the copyright in those designs and drawings shall remain vested in the Seller, and shall only be used by the Customer at the Seller`s discretion.
b) Conversely, in such a situation, where the Customer has supplied drawings, the Seller in its sale conditions may look for an indemnity (the specifications and design of the Goods(including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller)
c) Where any designs or specifications have been supplied by the Customer for manufacture, by or to the order of the Seller then the Customer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.
11) Default & Consequences of Default
a) Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% compounding per calendar month and shall accrue at such a rate after as well as before any judgement.
b) If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Seller from and against all the Seller`s costs and disbursements including on a solicitor and own client basis and in addition all of the Seller`s nominees costs of collection.
c) Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Seller may suspend or terminate the supply of Goods to the buyer and any of its other obligations under the terms and conditions. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller exercised its rights under this clause.
d) If any account remains unpaid at the end of the second month after supply of the Goods or Services an immediate amount of the greater of $20.00 or 10% of the amount overdue shall be levied for administration fees which sum shall become immediately due and payable.
e) In the event that:
i) Any money payable to the Seller becomes overdue or in the Seller`s opinion the Customer will be unable to meet it`s payments as they fall due; or
ii) The Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
iii) A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer,
then without prejudice to the Seller`s other remedies at law
The Seller shall be entitled to cancel all or any part of any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies; and
All amounts owing to the Seller shall, whether or not due for payment, immediately become payable in addition to the interest payable under clause 12a hereof.
a) It is the intention of the seller and agreed by the Customer that property in the Goods shall not pass until:
i) The Customer has paid all amounts owing for the particular Goods, and
ii) The Customer has met all other obligations due by the Seller in respect of all contracts between the Seller and the Customer, and that the Goods shall be kept separate until the Seller shall have received payment and all other obligations of the Customer are met.
b) It is further agreed that:
i) Until such time as ownership of the Goods shall pass from the Seller to the Customer the Seller may give notice in writing to the Customer to return the Goods or any of them to the Seller. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease.
ii) If the Customer fails to return the Goods to the Seller then the Seller or the Seller`s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any other premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods, without being responsible for any damage thereby caused.
iii) The Customer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods on trust for the Seller.
iv) The Customer shall not deal with the money of the Seller in any way which may be adverse to the Seller.
v) Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognized and until then the Seller`s ownership of rights in respect of the Goods shall continue.
vi) The Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller.
vii) The Seller may require payment of the Price or the balance of the Price due together with any other amounts due from the Customer to the Seller arising out of these terms and conditions, and the Seller may take any lawful steps to require payment of the amounts due and the Price.
viii) The Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer.
ix) Until such time the Customer has the Seller`s authority to convert the goods into other products and if the goods are so converted, the parties agree that the Seller will be the owner of the end product.
13) Security and Charge
a) Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
i) Where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Seller or the Seller`s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and or the Guarantor acknowledge and agree that the Seller (or the Seller`s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
ii) Should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Seller from and against all the Seller`s costs and disbursements including legal costs on a solicitor and own client basis.
iii) To give effect to the provisions of clause 14a i) and ii) inclusive hereof the Customer and/or Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Seller or the Seller`s nominee as the Customer`s and/or Guarantor`s true and lawful attorney to execute mortgages and charges (whether registerable or not)including such other terms and conditions as the Seller and/or the Seller`s nominee shall think fit in his absolute discretion against the joint and/or several interest of the Customer and/or the Guarantor in any land, realty or asset in favour of the Seller and in the Customer`s and/or Guarantor`s name as may be necessary to secure the said Customer`s and/or Guarantor`s obligations and indebtedness to the Seller and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Seller`s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause.
a) The Seller may cancel these terms and conditions or cancel delivery of Goods at any time before the Goods are delivered by giving written notice. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
b) At the Sellers sole discretion the Customer may cancel delivery of the Goods. In the event the Customer cancels delivery of the Goods the Customer shall remain liable to pay for a minimum of 25% of the value of the Goods, which amount may be further adjusted at the sole discretion of the Seller.
15) Privacy Act 1988
a) The Customer and/or the Guarantor/`s agree for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and the Guarantor/s in relation to credit provided by the Seller.
b) The Customer and/or the Guarantor/s agree that the Seller may exchange information about Customer and Guarantor/s with those credit providers named in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes:
i) To asses an application by the Customer
ii) To notify other credit providers of a default by the Customer
iii) To exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and
iv) To assess the credit worthiness of Customer and/or Guarantor/s.
c) The Customer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit.
d) The Customer agrees that Personal Data provided may be used and retained by the Seller for the following purposes and for other purposes as shall be agreed between the Customer and Seller or required by law from time to time:
i) Provision of Services & Goods
ii) Analyzing, verifying and/or checking the Customer`s credit, payment and/or status in relation to provision of Services/Goods
iii) Processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and
iv) Enabling the daily operation of the Customer`s account and/or the collection of amounts outstanding in the Customer`s account in relation to the Services and Goods
e) The Seller may give information about the Customer to a credit reporting agency for the following purposes.
i) To obtain a consumer credit report about the Customer; and
ii) Allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
16) Unpaid Seller`s Rights to Dispose of Goods
a) In the event that:
i) The Seller retains possession or control of the Goods; and
ii) Payment of the Price is due to the Seller; and
iii) The Seller has made demand in writing of the Customer for payment of the Price in terms of this contract; and
iv) The Seller has not received the Price of the Goods
then whether the property in the Goods has passed to the Customer or has remained with the Seller, the Seller may dispose of the Goods and may claim from the Customer the loss to the Seller on such disposal.
a) All Goods supplied by the Seller are subject to the laws of New South Wales and the Seller takes no responsibility for changes in the law which affect the Goods supplied.
b) The Seller shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of breach by the Seller of these terms and conditions
c) In the event of any breach of this contract by the Seller the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of the Seller exceed the Price of the Goods.
d) The Customer shall not set off against the Price amounts due from Seller
e) The Seller reserves the right to review these terms and conditions at any time from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the seller notifies the Customer of such change.
f) The Seller shall not be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.