|Terms & conditions
|Terms & Conditions of Sale
TERMS AND CONDITIONS OF SALE13.The Seller will gladly refund or credit Goods returned within a reasonable timeframe (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.
In these Terms and Conditions of Sale:
Company means Olicent Pty Ltd (ACN 118 768 531) as Trustee for the Bailey Holdings Trust, trading as ‘The Olive Centre’.
Customer means the Party or Parties named as the Customer in the “Customer details” section of this document.
A reference to one gender includes all genders including the neuter.
A reference to the singular includes the plural and vice versa.
This agreement is governed and construed in accordance with the laws of Queensland and is deemed to be made at the Company’s principal place of business, being 74 Castle Road, Cabarlah, Queensland.
The granting of credit to the Customer shall be at the sole discretion of the Company. These Terms may be varied by the Company from time to time at the Company’s absolute discretion. All changes to these Terms will be published on the Company’s web site: www.theolivecentre.com.
All goods and/or services supplied by the Company to the Customer are supplied in accordance with these Terms. These Terms can only be altered in writing by the Company’s Director, Secretary, Manager or Credit Manager. Previous dealings between the Company and the Customer shall not vary or replace these Terms or be deemed in any circumstances whatsoever to do so.
To the extent that there is any discrepancy between these Terms and any Special Terms agreed to by the Customer and the Company in writing, the Special Terms shall take precedence.
To the extent that there is any inconsistency in the Terms of agreement between the Company and the Customer, the following documents will be interpreted in the following order of precedence:-
1. Special Conditions;
2. these Terms;
3. Quotation (if any);
4. correspondence between the parties.
Terms means these Terms and Conditions of Sale including any written Special Terms stated by the Company that may be applicable to the type of goods being supplied;
Acceptance of Terms
1. Placing an order with the Company by the Customer for goods and/or services will be deemed acceptance of the Terms by the Customer.
2. In the event of any inconsistency between these Terms and any terms on the Customer’s order, the Customer agrees that these Terms shall prevail.
3. The Customer warrants and acknowledges that it is a condition of the approval by the Company that all information given in the Application for Credit is true and correct and the Company has relied on this information in giving its approval.
4. These Terms, any applicable written Special Conditions, the quotation (if any) and any other documents specified in the quotation, form the agreement between the Company and the Customer and any variations, alterations or additions must be acknowledged in writing by the Company.
5. The Customer accepts liability for all costs and expenses incurred by the Company, including legal costs (on an indemnity basis) and the costs of any mercantile or collection agent engaged by the Company to protect, recover or enforce any of the Company’s rights under these Terms.
6. The Customer agrees and acknowledges that until such time payment of all costs have been reimbursed to the Company in full, the Company may charge interest on the accrued costs in the same manner as it would for the non-payment of goods or services supplied by the Company to the Customer under these Terms.
7. Unless a written quotation issued by the Company expressly includes a fee for delivery of goods, the quoted price is deemed to be exclusive of all delivery charges and an additional fee will be charged for delivery. The Customer should contact the Company for details about delivery charges.
8. Where applicable, the Company will deliver goods to the address nominated by the Customer. If at the Customer’s request, the delivery vehicle leaves the road and enters the delivery site to unload, the Customer is responsible for providing suitable and safe access for the delivery vehicle and the Company’s agents and contractors. In addition, the Customer agrees to indemnify the Company and its agents and contractors from all damage and injury to any person and to any public or private property which may result including any costs associated with enabling the delivery vehicle to leave the site, and the cost of any returned product as a result of the Customer failing to provide suitable and safe access to the delivery site.
9. The Customer must be present at the delivery site at the time of delivery and must sign the Company delivery docket to acknowledge that the products and quantities described on the delivery docket have been delivered and comply with the Customer’s order.
10. Where the Customer does not sign or is not available to sign the delivery docket, the signature of the delivery driver on the delivery docket shall be prima facie evidence of delivery to the Customer of the products and quantities described on the delivery docket including any applicable charges.
11. If the Customer is not present at the delivery site, the goods may, at the Company’s discretion, be unloaded at the site or returned to the Company. If the goods are unloaded, the Customer releases the Company from any liability for loss or damage to the goods.
12. If the goods are delivered on pallets, the pallets remain the property of the Company. The Customer may be charged for such pallets but the Company will give the Customer a credit when the pallets are returned in good condition.
14. If the Customer believes that the goods and/or services supplied by the Company do not conform with the order placed by the Customer or that the price charged does not conform with any quotation given by the Company, the Customer shall notify the Company in writing as soon as practicable, detailing the way in which the goods or price do not conform.
15. Failure to give such notification within seven (7) days of the date of supply or date of invoice (as applicable) shall raise the inference against the Customer that the goods are in accordance with the order and quotation.
16. The Customer shall be deemed to have accepted the goods as supplied if it fails to keep the goods in the condition they were in when supplied and/or declines a reasonable request by the Company to inspect the goods.
17. For goods supplied to a Customer who is undertaking the installation of those goods, the Customer agrees to indemnify the Company against any liability the Company may incur as a result of the failure of the Customer to follow generally accepted good practice, or due to a lack of ability, expertise, or skill with the particular type of goods being installed.
Liability and Continuing Obligation
18. Where the Customer comprises more than one person or entity, each of them are jointly and severally liable to meet the Customer’s obligations under these Terms and acknowledge that such obligations are a continuing obligation notwithstanding any change in the constitution of the Customer (or any of them).
Limitation of Liability for Breach of a Condition or Warranty
19. Pursuant to sections 64A and 276A of the Australian Consumer Law the following clause applies in respect of any of the goods and/or services supplied under this contract which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, provided that this clause will not apply if the Customer establishes that reliance on it would not be fair and reasonable.
20. The Company’s liability in respect of breaches of expressed or implied conditions, and warranties and guarantees, other than the warranty as to title, undisturbed possession and undisclosed securities, is limited to:
(a) where the Customer is a consumer (as defined in the Australian Consumer Law – “consumer”) any one of the following as determined by the Company: 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; or
(b) where the Customer has supplied the goods to a consumer: an amount equal to the lowest of the costs of the actions in paragraph (a).
The Company will not be liable for any damage arising out of or in connection with, special, consequential, direct or indirect loss, damage, cost, expense, harm or injury suffered or incurred as a result of such a breach unless such liability is mandatorily imposed on the Company by statute, notably the Australian Consumer Law.
21. In addition to Australian Consumer Law, the limitations of the Company’s liability in respect of breaches of express or implied conditions and warranties as expressed in the previous clause shall be varied to the extent required to also limit the Company’s liability to the extent permitted by relevant State and Territory legislation covering sale of goods and consumer protection.
22. The Customer agrees to make payment of all invoices issued by the Company pursuant to these Terms within seven (7) days of the invoice being issued to the Customer.
23. Should the Customer fail, refuse or neglect to pay the Company’s invoice in accordance with these Terms, the Company may, in its absolute discretion, charge the Customer interest at the rate of 18% per annum until the invoice has been paid in full.
24. Any applicable Goods and Service Tax (“GST”), value added tax, consumption tax or any tax of a similar nature or effect which at any time may be imposed as a result of any transaction entered into between the Company and the Customer shall be payable by the Customer without deduction or set off.
25. If the Customer pays any invoice by credit or debit card (e.g. Visa, MasterCard, Bankcard, American Express, Diners) the Customer must pay the Company, additional to all other amounts due and owing, an amount that is equivalent to the fee imposed on the Company by the Customer’s bank or card issuer.
26. The Customer must pay the Company the cost of any bank fees arising from dishonoured cheques paid by the Customer to the Company.
27. Acceptance by the Company of any late payment by the Customer or the Customer exceeding its credit limit set by the Company shall not amount to a waiver by the Company of its right to payment in accordance with these Terms, nor is it an agreement to provide credit other than in accordance with these terms.
28. The Company reserves the right to require the Customer to provide security for payment in a form acceptable to the Company prior to the supply of goods and/or services.
29. The Customer is not entitled to withhold any payment by way of retention or set off unless the terms and conditions of the retention or set off are agreed to in writing by the Company prior to supply.
Personal Property Securities Act 2009 (“PPSA”)
30. In this clause the terms ‘financing statement’, ‘financing change statement’, ‘security agreement’, and ‘security interest’ have the meaning given by the PPSA.
31. The Customer acknowledges and agrees:
(a) that these terms:
(i) constitute a security agreement for the purposes of the PPSA; and
(ii) create a security interest in any goods, inventory or equipment that has previously been supplied and that will be supplied in the future by the Company to the Customer;
(b) the Company is the holder of a purchase money security interest (‘PMSI’) by virtue of this agreement and/or the PPSA;
and consents to and appoints the Company to be an interested person, and the Customer’s authorised representative for the purposes of PPSA Section 275(9).
32. The Customer undertakes to:
(a) promptly undertake such acts and sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Company may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document registrable under the PPSA; or
(iii) correct a defect in a statement referred to in this sub-clause;
(b) indemnify and upon demand reimburse the Company for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA, or releasing any Goods and/or Equipment charged thereby;
(c) not register any financing change statement in respect of a security interest which will or could compete with or affect any security interest created by any agreement between the Company and the Customer without the prior written consent of the Company;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or the Equipment in favour of a third party without the prior written consent of the Company;
(e) immediately advise the Company of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
33. The Company and the Customer agree that Sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Conditions, and the Customer waives its rights:
(a) to receive notices under Sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA; and
(b) to receive a verification statement in accordance with Section 157 of the PPSA.
34. Nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA except to the extent permitted by such Act.
Power of Attorney
35. The Customer hereby irrevocably appoints the Company, its secretary and each of its directors to be their lawful joint and several attorneys and to sign all such documents as may be necessary to effect registration of the mortgage, caveat or other encumbrance referred to in clause 18 hereof.
36. The Customer agrees that in accordance with the provisions of the Privacy Act 1988 (Cth) (“Privacy Act”), that disclosure and use by licensed credit reporting agents of any relevant information may occur for the purpose of assessing the Customer’s Application for Credit and acknowledges that these Terms shall survive termination of this agreement or closure of the Customer’s credit account.
37. The Customer acknowledges that according to Section 18E(8)(c) of the Privacy Act certain items of personal information in this application may be disclosed to a credit reporting agency.
38. The Customer acknowledges that according to Section 18N(1)(b) of the Privacy Act that information from a report or the entire report may be disclosed to or obtained from another credit provider.
39. Immediately upon delivery of the goods into the Customer’s possession, the Customer accepts liability for loss of or damage to goods, except where the Company is at fault.
40. The Company shall not be liable for any injury, loss or damage claimed by the Customer against the Company or by a Third Party against the Company arising out of the supply of the goods or the use to which the goods are put by the Customer or arising out of the non-delivery or late delivery thereto other than as required under the prevailing consumer legislation. The Customer shall indemnify the Company against any such claim, including for the Company’s legal fees on an indemnity basis.
41. Without limiting the scope of the prevailing consumer legislation, the Company agrees to repair or replace, free of charge, any goods supplied by it which are returned by the Customer (carriage paid) to the Company within seven (7) days of delivery to the Customer and which, in the Company’s opinion, have a minor defect. The Company will replace, repair, provide a credit, refund or compensation for a major defect at the option of the Customer where required under the prevailing consumer legislation.
Security & Charge
42. As security for the performance of the Customer’s obligations under these Terms, the Customer hereby charges in the Company’s favour all of his/her/its estate and interests in any land which the Customer now has or may later acquire and any other asset or trust asset with payment of all monies owed to the Company by the Customer.
43. The Customer further agrees that immediately upon demand being made by the Company, the Customer will irrevocably consent to, execute and deliver to the Company such mortgage, caveat or other instrument of security as the Company may require.
44. Each clause or sub-clause of this Agreement is severable from the others and if any is invalid or unenforceable for any reason such invalidity or unenforceability shall not affect in any way the validity or enforceability of any other part.
Title and Ownership
45. Legal and equitable title in all goods supplied by the Company does not pass to the Customer until all moneys owing by the Customer have been paid in clear funds to the Company.
46. The Customer acknowledges that until full payment is made for the goods, the Customer holds the goods as bailee of the Company and that a fiduciary relationship exists between the Customer and the Company.
47. Until payment is made in full, the Customer shall hold the goods in such a manner that they are clearly identifiable as the property of the Company. The Customer acknowledges that if it sells any of the Company’s goods, it sells the goods as a fiduciary agent of the Company provided that such sales shall not give rise to any obligations on the part of the Company.
48. In the event that the Customer breaches this Agreement for any reason and the Company decides to retake possession of goods supplied pursuant to these Terms, the Customer irrevocably consents to the Company’s nominated representative entering upon any premises (rented, hired or otherwise) occupied by the Customer (with force if necessary) and further irrevocably consents to the Company’s representative breaking any lock (if necessary) and entering any locked part of the Customer’s premises to retake possession of the goods.
49. The Company warrants that the goods delivered by the Company or otherwise received by the Customer from the Company are those specified in the invoice or the delivery docket (as the case may be), are owned by the Company, are free from third party claims, undisclosed securities and are of acceptable quality as defined in the Australian Consumer Law.
50. All other conditions, warranties and guarantees which would be imported into these Terms by statute are negated except to the extent that such negation is specifically forbidden by statute.