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Terms & Conditions of Sale
Terms and Conditions of Sale
Olicent Pty Ltd (ACN 118 768 531) as trustee for the Bailey Holdings Trust trading as The Olive Centre
1. In these conditions, the “Seller” means Olicent Pty Ltd as trustee for the Bailey Holdings Trust trading as The Olive Centre, the “Buyer” means the purchaser of the goods as specified in the sale contract and “Goods” means the products and if provided, services, as specified in the sale contract. Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Trade Practices Act 1974) and which by law cannot be excluded, restricted or modified.
2. These conditions (which may only be waived or modified if in writing signed by the Seller) shall prevail over all conditions of the Buyer’s order to the extent of any inconsistency. All Goods are supplied on these terms and conditions only and no person employed by or otherwise acting as an agent for the Seller has any authority to supply goods on any other terms and conditions or to vary these terms and conditions in any way whatsoever. The Goods and all other products sold by the Seller are sold on these terms and conditions.
3. Unless previously withdrawn, Seller’s quotations are open for acceptance within the period stated in them or, when no period is so stated, within 30 days only after its date. The Seller reserves the right to refuse any order based on this quotation within 7 days after the receipt of the order.
4. All specifications, drawings and particulars of weights and dimensions are approximate only and any deviation from any of these things does not vitiate any contract with the Seller or form grounds for any claim against the Seller. The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the Goods or of the description applied to the Goods.
5. The Seller will gladly refund or credit Goods returned within a reasonable time frame (generally 7 days) provided the Goods are in original condition, original packaging, current version and not a special order or clearance item or unless restricted by the manufacturer. In any other case, the Seller will use their best endeavours to arrange exchange with the manufacturer or accept the Goods back for resale. In this case, a restocking fee of up to 25% may apply. Freight to return products to the Seller’s premises is the responsibility of the Buyer. Without affecting the Seller’s retention of title in the product until payment, the following items are NOT returnable:
a) goods supplied as “not returnable” or “no credit”;
b) goods which have been used, installed or demonstrated;
c) goods which have been altered or damaged; and
d) goods which are special or unique to your purposes.
6. The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery. The Sellers is not liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery of the Goods. The Seller may at its option deliver the Goods to the Buyer in any number of installments unless there is a written agreement with the Seller to the effect that the Buyer will not take delivery by installments. If the Seller delivers any of the Goods by installments, and any one of those installments is defective for any reason, it is not a repudiation of the contract of sale formed by these conditions and the defectiveinstallment is a severable breach that gives rise only to a claim for compensation. If the Buyer fails or refuses to take delivery of the Goods, then in addition to all other rights and remedies of the Seller, the Buyer is liable for all loss and damage (including consequential loss and damage) incurred by the Seller. In the event that the Buyer defaults under this Agreement, the Seller may at is sole discretion, charge a restocking fee of up to 25% of the purchase price.
7. The goods shall be at the Buyer’s risk at the point of delivery. The Buyer, upon taking delivery of the Goods, shall immediately examine the Goods and give written notice to the Seller of any defect within five (5) days of such date, failing which the Goods shall be deemed to have been delivered in good order and condition and accepted by the Buyer.
8. The Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind by any person (whether or not the Seller is legally responsible for the person who caused or contributed to that loss or damage). The Seller must provide the Buyer with such assistance as may be reasonably necessary to press claims on carriers so long as the Buyer: has notified the Seller and the carriers in writing immediately after loss or damage is discovered on receipt of Goods and lodges a claim for compensation on the carrier within three (3) working days of the date of receipt of the Goods.
9. The Seller’s liability for Goods manufactured by it is limited to making good any defects by repairing the defects or at the Seller’s option by replacement, within a period not exceeding twelve (12) calendar months after the Goods have been dispatched so long as the defects have arisen solely from faulty materials or workmanship and the Goods have not received maltreatment, inattention or interference whether intentional or otherwise and accessories of any kind used by the Buyer are manufactured, distributed or approved by the Seller and the seals of any kind on the Goods remain unbroken and the defective parts are promptly returned free of cost to the Seller. If the Goods are not manufactured by the Seller the guarantee of the manufacturer of those Goods is accepted by the Buyer and is the only guarantee given to the Buyer in respect of the Goods. The Seller agrees to assign to the Buyer on request made by the Buyer the benefit of any warranty or entitlement to the Goods that the manufacturer has granted to the Seller under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable. Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Seller is not liable for and the Buyer releases the Seller from any claims in respect of faulty or defective design of any Goods supplies.
10. The Seller’s liability for a breach of a condition or warranty is limited to whichever is the lesser amount of the replacement of the Goods or the supply of equivalent Goods or the repair of the Goods or the payment of the cost of replacing the Goods or of acquiring equivalent Goods or the payment of the cost of having the Goods repaired. In the case of services it is limited to the supplying of the services again or the payment of the cost of having the services supplied again
11. The Seller’s liability under s 74H of the Trade Practices Act 1974 is expressly limited to a liability to pay to the Buyer an amount equal to the cost of replacing the Goods or the cost of obtaining equivalent Goods or the cost of having the Goods repaired, whichever is the lowest amount.
12. Unless otherwise stated all prices quoted by vendor are net, exclusive of Goods and Services Tax (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 water, cost of materials and other charges affecting the cost of production ruling on the date is made. If the Seller makes any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Buyer’s account.
13. The purchase price in relation to goods is payable net and payment of the price of the Goods plus GST must be made on or before the thirtieth (30th) day of the month next following the delivery of the goods unless other terms of payment are expressly stated in these conditions in writing. In the event of the Buyer’s default, the Seller may charge and recover costs incurred for the collection of payment (such as but not limited to collection agency fees and legal costs), cheque dishonour fees, interest at the current bank overdraft rate plus two percent per annum from the due date for payment until payment in full. The Seller may charge a late fee, being the rate of 2% per month for the whole time which the Buyer is on default of the credit terms with the Seller.
14. Until full payment in cleared funds is received by the Seller for all goods supplied by it to the Buyer, as well as all other amounts owing to the Seller under any other agreement between the parties:
a) legal title and property in all goods supplied under this contract remain vested in the Seller and do not pass to the Buyer;
b) the Buyer holds the goods as fiduciary agent and bailee for the Seller;
c) the Buyer must keep the goods separate from other goods and maintain the labelling and packaging of the Seller so that they are readily identifiable as the property of the Seller, however failure to comply with these requirements will not affect the Seller’s title and property to the goods;
d) the Buyer must not sell the goods except in the ordinary course of its business;
e) the Buyer holds and agrees to hold the proceeds of any sale of the goods on trust for the Seller in a separate account in to which no other monies shall be paid; however failure to deposit the proceeds of sale into a separate account or to keep those monies separate will not affect the Buyer’s obligation to deal with the proceeds as trustee of the proceeds for the Seller. The proceeds of the sale of goods supplied will be held on trust for the Seller until actual payment of the proceeds is made to the Seller;
f) The Buyer hereby irrevocably authorises the Seller to enter any premises where, in the Seller’s reasonable opinion, the Seller suspects goods supplied pursuant to this agreement are located and to remove those goods without committing a trespass. Such right shall extend to all goods supplied under this agreement irrespective of whether those goods are attached to other goods or to land that is not the property of the Seller, and for this purpose, the Buyer irrevocably licenses the Seller to enter such premises and also indemnifies the Seller from and against all costs, claims demand or actions by any party arising from such action; and
g) In the event the items supplied by the Seller to the Buyer under this agreement have been consumed so that they no longer exist or have been incorporated into a new product so as to form an integral part of that product, the Buyer hereby grants the Seller a charge on the new product to the exclusion of all others.
15. The Seller reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Buyer within fourteen days of a request by the Seller for such instructions. The parties agree that the Seller may charge for storage for the first day after the Seller requests the buyer to provide delivery instructions.
16. All Goods to be supplied by the Seller to the buyer are as described on the purchase order agreed by the Seller and the Buyer and the description on such purchase order modified as so agreed prevails over and all other descriptions including any specification or enquiry of the Buyer.
17. No order may be cancelled except with consent in writing and on terms which will indemnify the Seller against all losses.
18. In the event of non-payment of an amount owing to the Seller by the Buyer, the Buyer hereby irrevocably grants the Seller an equitable mortgage over all real property (freehold or lease hold) owned by the Buyer, to the extent necessary to secure the amount owing. The Buyer hereby irrevocably authorises the Seller to register a Caveat over the said land which is irrevocably agreed to be a consent Caveat.
19. If at any time within six months of the date of a payment to the Seller, the Buyer is wound up, enters into Voluntary Administration or is made Bankrupt and the Seller is obliged to or agrees to make a refund of any money received from the Buyer, the Seller may treat such receipt as if it had not occurred. The Seller is then entitled to enforce its rights under this sales contract as if the receipt had never occurred.
20. The Buyer indemnifies the Seller against all liabilities, costs, charges, losses, damages, expenses or fees (including legal fees on a full indemnity basis) that the Seller may suffer or incur arising out of or in any way related to the Buyer’s breach of this sales contract.
21. If there is more than one Buyer named in
the sales contract, their obligations are joint and several.
22. Any provision of this sales contract which is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability and will not invalidate any other provision of this sales contract.
23. The contract for sale of the Goods under this contract is deemed to have been made in the state of Queensland regardless of the location of the Buyer. The parties submit all disputes arising between them to the courts of Queensland and any court competent to hear appeals from those courts of first instance.
24. If a dispute arises in relation to the Goods supplied by the Seller to the Buyer then the Seller may at any time prior to determination by a Court require that such dispute or part thereof be determined by arbitration according to the Commercial Arbitration Act 1990 (Qld). There will be a single arbitrator appointed by agreement between the parties, or failing agreement as nominated at the request of either party by the President of the Queensland Law Society. The arbitrator’s decision is final and binding subject to any right of appeal under the Commercial Arbitration Act 1990 (Qld).
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