Interpretation
1. In these conditions:
(1) “Vendor” means BAMBACH SADDLE SEAT PTY LIMITED ABN 84 000 863 570 which is the seller of the goods.
(2) “Purchaser” means the Purchaser of the goods.
(3) “Goods” means the products and, if any, services.
(4) Legislation in Australia may provide consumer guarantees or impose obligations which cannot be excluded, restricted or modified, or only to a limited extent. These Terms and Conditions are subject to such legislation, including the Australian Consumer Law.
(a) “Australian Consumer Law” means the law as set out in Schedule 2 of the Competition and Consumer Act 2010.
(b) “Consumer Contract” means a contract for the acquisition of goods or services as a ‘consumer’ is defined in section 3 of the Australian Consumer Law.
General
2. These conditions (which shall only be waived in writing signed by the vendor) shall prevail over all conditions of the Purchaser’s order to the extent of any inconsistency.
Terms of Sale
3. The goods and all other products sold by the Vendor were sold on these terms and conditions,
Vendor’s Quotations
4. Unless previously withdrawn, the Vendor’s quotations are open for acceptance within the period stated therein or, when no period is so stated, within 60 days only after its date. The Vendor reserves the right to refuse any order based on this quotation within 7 days after the receipt of the order.
Delivery
5. The delivery times made known to the Purchaser are estimates only and the Vendor shall not be liable for late delivery or non-delivery and under no circumstances shall the Vendor be liable for any loss, damage or delay occasioned to the Purchaser or its customers arising from the late or non-delivery or late installation of the goods.
Loss or damage in transit
6. The Vendor is not responsible for any loss or damage to goods in transit. The Vendor shall render the Purchaser such assistance as may be necessary to press claims on carriers provided the Purchaser shall have notified the Vendor and the carriers in writing immediately loss or damage is discovered on receipt of goods shall lodge a claim on the carrier within three days of the date of receipt of the goods.
Warranty
7. The Vendor warrants that:
(a) All goods will:
(i) Meet the functional and performance criteria set out in and otherwise conform with specifications;
(ii) Be free from defects in design, materials and workmanship;
(iii) Be of good and merchantable quality and fit for use; and
(iv) It will comply with all laws, ordinances, rules, regulations, codes and the requirements and direction of any relevant Commonwealth, State and Local Government departments or bodies in force from time to time.
(b) If at any time during the warranty Period of one year for goods the Vendor becomes aware or the Purchaser notifies the Vendor of any failure of those goods to comply with any of the warranties the Vendor, at its cost, will promptly correct that failure.
Implied Terms
8. (a) Subject to paragraph 11, any condition or warranty which would otherwise be implied in this contract is hereby excluded.
(b) Where legislation implies in this contract any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this contract. However the liability of the vendor for any breach of such condition or warranty shall be limited, at the option of the vendor, to one more of the following:
If the breach relates to the goods:
(i) The replacement of the goods or the supply of equivalent goods;
(ii) The repair of the goods;
(iii) The payment of the goods or of acquiring equivalent goods; or
(iv) The payment of the cost of having the goods repaired.
Prices
9. Unless otherwise stated all prices quoted by the Vendor are net, exclusive of sales tax and GST. Prices quoted are those ruling at the date of issue of quotation and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of wages, cost of materials and other charges affecting the cost of production ruling on the date the quotation is made and any alterations thereto either before acceptance of or during the currency of the contract shall be to the Purchaser’s account.
Payment
10. (1) The purchase price in relation to goods shall be payable net and payments shall be made on or before the thirtieth day of the month next following the delivery of the goods unless other terms of payment are expressly stated in writing.
(2) The Purchaser shall pay interest on all overdue amounts at the rate of 1½ percentum per month from the due date until the date of actual payment. The Purchaser acknowledges that such interest is a genuine pre-estimate of the Vendor’s loss for its unpaid accounts.
Rights in relation to goods
11. (1) Title to the goods shall remain vested in the Vendor, and shall not pass to the Purchaser until the purchase price is paid in full and received by the Vendor.
(2) The Purchaser agrees at the Vendor’s request, to do all acts matters and things including sign all documents (provided they are on terms similar to or having the same effect and are on terms no more onerous on the Customer than these Terms and Conditions) to ensure the Vendor holds a valid and perfected security interest under the Personal Property Securities Act 2009 (Cth).
Purchaser’s property
12. Any property of the Purchaser under the Vendor’s custody or control shall be entirely at the Purchaser’s risk as regards loss or damage caused to the property or by it.
Consequential loss
13. The Vendor shall be under no liability to the Purchaser for any consequential loss or profit or death, destruction or expense arising in connection with this agreement. The Purchaser hereby indemnifies the Vendor against any liability, damage, loss or expense to any third party in connection with this Agreement. In no event shall the Purchaser be entitled to damages of any kind whether general, special or otherwise for late performance or failure to perform.
Storage
14. The Vendor reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Purchaser within fourteen days of a request from the Vendor for such information.
Returned Goods
15. The Vendor shall not be under any obligation to accept goods returned by the Purchaser and specifically the Vendor rill not accept returned good where the Vendor’s quality assurance labels have been removed, obliterated or tampered with and the Vendor considers this to be a breach of an essential term of the contract. Other returns will only be accepted by the Vendor after approval by the office of the Managing Director.
Goods Sold
16. All goods to be supplied by the Vendor shall be described on the purchase order agreed by the Vendor and the Purchaser and the description on such purchase order modified as so agreed shall prevail over all other descriptions including any purchaser’s specification or enquiry.
Cancellation
17. No order may be cancelled except with consent in writing and on terms which will indemnify the Vendor against all losses.
Place of Contract
18. The contract for sale of the goods is made in the State of New South Wales and the parties agree to submit all disputes arising between them to the courts of such state at and court competent to hear appeals therefrom.
Assignment
19. This agreement is personal between the Vendor and the Purchaser and is not assignable without the prior written consent of the Vendor.
Waiver
20. Any failure by the Vendor to insist upon strict performance of any of these terms and conditions or any delay by the Vendor in exercising any of its remedies shall not constitute a waiver or variation of such terms or waiver of any default.
21. The Purchaser agrees to be bound by these terms and conditions in consideration of the Vendor granting the Purchaser a Terms Account.