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SEAGA GROUP AUSTRALIA
TERMS AND CONDITIONS OF SALE
1. VARIATIONS: Seaga reserves the right to change these terms at any time.
2. PRICE/TAXES: Prices are subject to change without notice and will be charged at the relevant price ruling on the date of invoice. Prices do not include any GST or other tax or duty, which is payable in addition to the price and is to be paid at the time of payment for the goods or services (if any goods are to be exported from Australia on a GST zero basis, it is a condition that such goods be exported within the applicable legal time limit and the Customer must pay any GST amount to Seaga on demand if the GST zero-rated status does not apply or is lost). Recommended retail prices are recommendations only and there is no obligation to comply with that recommendation.
3. PAYMENT: Where no credit arrangements have been agreed to in writing by Seaga, the total purchase price for the goods or services supplied shall be due for payment in cash or by cleared funds by electronic funds transfer prior to delivery. In the event a credit arrangement is approved, the Customer shall make payment within 30 day of invoice (unless otherwise agreed by Seaga) , free of any set off, counterclaim or any other deduction. Payments made using credit card will incur a fee, which fee will depend on the type of credit card used.
4. CREDIT ACCOUNT: Any credit facility granted by Seaga to the Customer shall continue until terminated by Seaga in its sole discretion. Notice of termination by Seaga of any credit facility may be communicated to the Customer in writing or verbally, and may take effect immediately.
Any credit account approved by Seaga is granted by Seaga based on information supplied by and representations made by or on behalf of the Customer. For that reason, the Customer shall inform Seaga of any changes in the ownership of the Customer whether total or partial, by forwarding to Seaga notice in writing within 14 days of that change occurring.
Until such notice is received by Seaga, the Customer (whether acting in its own capacity or as trustee of a trust), shall hold Seaga indemnified against all losses, unpaid accounts, interest, damages costs, charges, fees and expenses of any nature whatsoever incurred or suffered by Seaga in trading with any person, company (including the same company but with a different shareholder or shareholders) or other entity (including a trust) that uses the Customer’s previously approved credit account for that trading.
5. ORDERS: Orders by the Customer constitute an offer which is capable of being accepted by Seaga. Orders once accepted cannot be cancelled or varied without the prior written consent of Seaga. Any custom orders or orders of non-stock products are binding and such products are non-returnable. The Customer agrees that it relies on its own knowledge, skill and judgment in ordering products from Seaga and has not relied upon any representation by Seaga.
6. DELIVERY: The means of delivery shall be at Seaga’s discretion. The Customer must pay the cost of delivery. Seaga reserves the right to deliver goods in part deliveries. Special delivery arrangements may be charged to the Customer. Should the Customer request that Seaga provide proof of delivery and Seaga incurs any cost or out of pocket expense in doing so, the Customer must immediately reimburse Seaga for any such cost or out of pocket expense.
Seaga may, at any time prior to delivery of goods, cancel the contract in respect of such goods without penalty or compensation to the Customer other than refunding to the Customer the amount of the price paid to Seaga for such goods.
7. RETURNS: Delivered goods may not be returned unless defective or damaged in transit. Any goods returned must be at the Customer’s cost and must be in original and saleable condition. Seaga reserves the right to request proof of return.
8. STORAGE AND LABELLING: The Customer acknowledges being informed by Seaga that:
a. sensitised goods require proper storage, handling and display to maintain quality
b. films plates paper and packed chemicals may deteriorate if not stored and handled in original sealed packages;
c. our products are packaged for sale to Customer in their original packages on which are set out marks numbers references and other Information. Consumers may be disadvantaged or even misled if these packages are covered, defaced, altered, erased or otherwise misused
d. our suppliers’ trademarks and trade dress or get-up are protected by law from misuse, eg infringement forgery or passing off.
9. EQUIPMENT INSTALLATION: The price of goods does not include installation unless agreed in writing. Any installation by Seaga shall be during normal working hours and only after the site has been properly prepared by the Customer at the Customer’s expense.
10. DELAYS: Seaga shall not be liable for delays in delivery of goods or services. Delays shall not affect the Customer’s obligation to make payment for such goods or services.
11. CLAIMS: Claims for defective or damaged goods or order discrepancies must be made in writing within fourteen (14) days of delivery. Seaga will not be liable for any claim made after that time. Lodgement of a claim shall not affect the Customer’s obligation to make payment for such goods. For all claims for defective or damaged goods, the entire defective or damaged product must be returned to Seaga failing which the claim may be rejected.
12. TITLE AND RISK: The risk in the goods supplied shall pass to the Customer on delivery but title and ownership in them shall not pass until the Customer has made payment in full for such goods and all other amounts owing to Seaga by the Customer.
13. BAILEE: Until payment is made in full by the Customer for the goods, the Customer holds the goods as fiduciary bailee for Seaga. The Customer shall store the goods separately from other goods such that they are clearly identifiable as the property of Seaga, and in such a manner to prevent the deterioration of them. The Customer will keep separate records in respect of the all goods held as bailee for Seaga.
14. SECURITY INTEREST: To secure the obligations of the Customer arising under these terms, the Customer provides a charge over all goods supplied by Seaga to the Customer and the proceeds from the sale thereof, and all present and future property of the Customer including real property. The security interest given by the Customer is given as beneficial owner. If the Customer is the trustee of a trust, the Customer acknowledges that the security interest given by it applies to the assets of the trust. Seaga may register a financing statement on the PPSR in respect of the security interest and the Customer irrevocably waives any rights to receive a copy of the verification statement.
The Customer agrees not to grant any security interest over any of its personal property (except in the ordinary course of business) or a security interest in any account as original collateral under s64 of the PPSA.
15. EVENT OF DEFAULT: If an event of Default occurs or is continuing all monies owing by the Customer to Seaga will become immediately due and payable in full and Seaga may immediately enforce these terms, which action may (without prejudice to any of its other rights) include;
a. Demand payment in full of all monies due
b. Cancel or suspend any outstanding orders or the delivery of any goods
c. Recover and resell any or all unpaid goods supplied by Seaga and enter upon the Customer’s premises or any other place where the goods are stored by its servants or agents for that purpose. The Customer grants to Seaga an irrevocable right and authority to so enter, recover and re-sell.
d. Recover from the Customer or deduct from or set-off against any amount Seaga may owe to the Customer, including amounts for any damages, loss or cost (including legal costs on a full indemnity basis, general debt recovery costs, out of pocket expenses and any costs resulting from the entry, recovery and re-selling of goods) to Seaga relating to the Default by the Customer or the enforcement of these terms by Seaga.
e. Appoint a receiver and manager to any of the Customer’s real or personal property. The Customer agrees that any such receiver and manager has the powers conferred by the Corporations Act 2001 (Cth).
f. Enforce any security interest.
16. INTEREST: The Customer will pay interest on any overdue amount at the rate prescribed by the Penalty Interest Rates Act 1983 (Vic) plus 2% calculated on a daily basis until paid in full.
17. WARRANTIES: Seaga warrants to the Customer that clear title to goods passes to the Customer when ownership passes. To the extent permitted by law, Seaga excludes all conditions warranties, terms and consumer guarantees implied by law (including the Australian Consumer Law) arising in connection with a supply of goods or services.
18. LIMITATION OF LIABILITY: To the extent permitted by law, Seaga excludes any liability in contract, tort (including negligence) or otherwise, in connection with the supply of goods and services for any indirect damages or losses, or for any special, punitive or exemplary damages.
To the extent permitted by law, Seaga’s liability in any case of defect or fault is limited to:
a. Replace the goods or supply equivalent goods;
b. Repair the goods;
c. Pay the cost of replacing or acquiring equivalent goods
d. Pay to repair the goods
e. Supply the service again; or
f. Pay the costs of that service
19. INDEMNITY: The Customer shall indemnify Seaga against any loss or damage (including legal costs on a full indemnity basis, disbursements, general debt recovery costs, and out of pocket expenses) arising out of any act of Default or any act, omission or representation made by the Customer or a servant or agent of the Customer.
20. UN CONVENTION EXCLUDED: The United Nations Convention on Contracts for the International Sale of Goods does not apply.
21. WAIVER: No delay or failure to act is a waiver. No waiver is effective unless it is in writing. A waiver of a breach is not a waiver of any other breach.
22. NO AUTHORITY: The Customer has no authority to pledge the credit of Seaga or represent to any party that Seaga has an interest in the Customer’s business. The Customer must not represent that it is an agent of Seaga.
a. If the Customer comprises more than one person, each of those persons’ liability is joint and several.
b. These terms form an essential part of the contract between the parties.
c. The terms contain the entire agreement in respect of the supply of goods or services to the Customer. If these terms are inconsistent with any terms of a Customer’s order, these terms shall prevail.
d. If any provision of these terms are unenforceable for any reason, it will not invalidate any other provision which will remain in full force and effect despite that invalidity.
e. If any dispute arises in connection with the supply of any goods or services arises, the Customer agrees to pay Seaga the amount of any disputed invoice. To the extent permitted by law, until complied with, the obligation to pay the invoiced amount shall operate as an absolute bar to any defence, claim or action by the Customer.
f. Each indemnity and payment obligation of the Customer under these terms is a continuing obligation, separate and independent from all other obligations, and survives termination of these terms.
g. Any certificate signed by Seaga or its representative as to the amount due and payable by the Customer or as to the delivery of goods is conclusive evidence of such matters as at the date of any such certificate, unless proven wrong.
h. These terms are governed by the laws of Victoria and the Customer submits to the non-exclusive jurisdiction of Victoria.
24. INTERPRETATION and DICTIONARY: In this contract, unless the context otherwise requires or is specifically otherwise stated;
a. References to a party or a person includes any form of that entity and their respective successors, assigns and representatives
b. Amounts are in Australian dollars
c. Customer means the party placing an order with Seaga for the purchase of goods or the performance of services, and the applicant of an application for credit account
d. Default means:
i. If the Customer has failed to pay any money when due to Seaga;
ii. The Customer breaches these terms and conditions; or
iii. An Insolvency Event occurs or is occurring.
e. Insolvency Event means:
i. The Customer is, or under any legislation is presumed to or taken to be, insolvent;
ii. The Customer goes into administration or liquidation, or an order is made, proceedings are commenced, or a resolution is passed or proposed in a notice of meeting for the Customer to be placed into administration or liquidation;
iii. A receiver or receiver and manager is appointed in respect of the Customer, or the Customer amalgamates with any other person(s) without the prior written consent of Seaga; or
iv. The Customer ceases, suspends or threatens to cease or suspend the conduct of all or a material part of its business or disposes of or threatens to dispose of a material part of its assets.
f. PPSA and PPSR means the Personal Property Securities Act 2009 (Cth) and the Personal Properties Securities Register, respectively