Product or services shown on any order, invoice or delivery docket for Selling and/or processing by:
Defab Weavers Pty Limited
(called the Seller in the Conditions set out hereon) are sold by the Seller to the Customer (called the Buyer in the conditions set hereon) in accordance with the said conditions shall be and are hereby incorporated in any such order, invoice or delivery docket
Delivery Of Product
1. The Buyer agrees and warrants that the product received by the Buyer is in proper condition and that the Seller shall not be responsible for damage caused by deterioration of the product while in possession of the Buyer.
2. The Buyer acknowledges and agrees that the product sold herein shall be at the risk of Buyer as from the date of the delivery to the first destination nominated by the Buyer
3. Any date of delivery stipulated by the Seller is an estimate only and the actual date or delivery shall be the date on which the product are ready at the Sellers works.
4. Where the sales provides for delivery by instalments the sale shall be divisible in respect of each instalment.
5. Every endeavour will be made to deliver the correct quantity ordered but owing to the difficulty of producing exact quantities, estimates and/or orders are conditional upon a margin of plus or minus ten percent (10%) being allowed for.
Commission Processing, Weaving And Buyers Instructions
6. Material which has been subjected to further processing or weaving or has been cut or made up into product by the Buyer will be deemed to have been woven or processed by the seller or received to the satisfaction of the Buyer, and no claim whatsoever shall be against the Seller, unless agreed upon in writing.
7. Material, which has been woven or processed by the Seller and delivered to the Buyer, will be deemed to be woven or processed and received to the satisfaction of the Buyer unless it gives, to the Seller, written notification to the contrary, within fourteen days of the delivery of the material.
8. Where any particulars or instructions are required to be supplied by the Buyer before the Seller can proceed with or complete this sale such particulars or instructions shall be supplied within a reasonable time to enable the Seller to deliver the product within a specified time. Failure by the Buyer to supply such particulars or instructions within a reasonable time shall constitute breach by the Buyer of this sale.
9. The seller shall not be liable for damage to the Buyers material or yarn, caused by Fire, Flood, Explosion, Earthquake, Storm, Tempest, Riot and Civil Commotion, damage by Aircraft or Articles dropped, Burglary, Theft, Pilferage or Accident either at the Sellers Premises or when in transit to or from those premises.
10. The Seller shall not be liable for damage to unprocessed material or yarns left with the Seller for longer than three calendar months without any weaving or processing instructions or any materials left with the Seller for more than one Calender month after completion of weaving or processing.
Title Of Product
11. All product delivered to the Buyer shall remain the sole and absolute property of the Seller as legal and equitable owners until such times as the full price thereof has been paid to the Seller for all product delivered to the Buyer. Risk in the product shall pass to the Buyer upon delivery to the Buyer or its agents or other persons to whom the Seller has been authorised by the Buyer to deliver the product
12. The Buyer acknowledges that it is in possession of the product solely as bailee and agent for the Seller on the terms and conditions hereof. The Buyer shall, if so instructed by the seller, store the product separately from the buyer’s own product or those of any other person and in a manner which makes them clearly identifiable as the product of the Seller.
13. Upon the occurrence of any of the following events the Seller may (without prejudice to any of its other rights and remedies) recover and resell product, which remain the property of the Seller and may enter on the Buyers premises by its servants or agents for that purpose without notice to the Buyer
i. If the Buyer fails to pay any amounts to the seller when due or fails to pay any other indebtedness to the Seller when due or;
ii. Any other term or condition of this sale is breached by the Buyer or;
iii. The buyer makes an assignment for the benefit of its creditors generally or proposes or enters into a compromise arrangement or scheme with or in favour of its creditors or any class of its creditors or;
iv. The buyer ceases or threatens to cease to carry on business or disposes of a substantial part of its business, property or assets without prior consent of the Seller or;
v. (Where the Buyer is a corporation) an application is made for the winding up of the Buyer and is not dismissed or withdrawn within 14 days or an order is made or an effective resolution is passed for the winding up of the Buyer (except in the course of a scheme of reconstruction or amalgamation previously approved by the Seller) or a receiver, receiver and manager, official manager, liquidator, provisional liquidator or other similar officer is appointed of the Buyer or of whole or a substantial part of its assets of any proceedings for such appointment are initiated (unless the proceedings are dismissed or withdrawn within 14 days of the commencement) or the Buyer is unable or deemed to be unable to pay its debts within the meaning of the expression in section 460 of the Corporations Law or;
vi. (where the Buyer is a natural person) the Buyer commits an act of bankruptcy within the meaning of section 40(1) of the Bankruptcy Act 1966 (Commonwealth) or a petition is presented for a sequestration order against the Buyer and is not dismissed within 14 days or a sequestration order is made against the Buyer.
14. Subject to the terms and conditions herein the Buyer is authorised by the Seller to resell the product supplied by the seller hereunder on the express condition that the buyer does so as bailee and agent of the Seller (provided however that the buyer does not hold itself out as such) and the buyer agrees to identify and keep indemnified the Seller against all damages, costs, liabilities, losses, expenses or claims which the seller may suffer or incur consequent upon or arising directly or indirectly from such resales, and until such time as the full price of the product has been paid to the Seller the entire proceeds of the sale thereof are held on trust for the Seller and if so instructed by the seller shall not be mingled with other moneys or paid into an overdrawn bank account and shall be identified at all times as the Sellers money.
15. The buyer is licensed and authorised by the Seller to process the product supplied hereunder in such fashion as the buyer may wish and/or to incorporate the said product in or with any other product or products.
Terms Of Payments
16. The buyer shall pay for the sale within thirty (30) days net of the sale unless alternative terms have been agreed to between the seller and the buyer
17. The seller shall be entitled to interest on all amounts overdue for payment by the buyer at a rate equal to the rate for overdrafts in excess of $100,000 for prime commercial customers quoted from time to time by either National Australia Bank or Commonwealth Bank of Australia, which interest shall accrue and be calculated on a daily basis from the date on which such payment becomes overdue to the date on which payment in full is received by the seller.
18. If any amount due by the Buyer to the Seller remains overdue for more than thirty (30) days the Seller may suspend further deliveries until payment in full has been received by the Seller. The rights conferred upon the Seller by this clause shall be in addition to and not in substitution for any other rights whether under this sale or arising by operation of law the Seller may have.
Liability And Indemnity
19. The “Buyer in consideration of the “Seller” at the request of the director(s) of the buyer (as the director or business proprietor hereby acknowledges) permitting the buyer to purchase goods on an account pursuant to the credit application(hereinafter called the “said agreement”) made between the Seller and the buyer and the buyer of even date to hereby covenant with the Seller that so long as the money shall remain unpaid and owing by the buyer to the seller, the buyers directors, proprietors, executors and administrators (hereinafter called the “guarantor” shall hereby guarantee to the Seller the due observance, performance and compliance by the buyer of all and singular the terms and conditions of the said agreement contained or implied and on the part of the within named buyer to be observed and performed and the guarantor declare that the guarantee shall be a continuing guarantee and the liability hereunder of the guarantor shall not be impaired or discharged by any indulgence or extension of time granted to the said buyer or by any extension of the term or any variation of the trading terms or other conditions contained in the said agreement and further it shall not be necessary for the guarantor to be given prior notice of a default by the buyer before a demand is made upon such guarantor pursuant to this guarantee and further, any notice or demand required under this guarantee or by law to be given or made by the guarantor shall be deemed to be duly given or made if the same be in writing and executed by the Seller entitled to make a claim or its solicitors or duly authorised agent of the Seller and delivered to the guarantor or sent through the post in a prepaid envelope addressed to that guarantor at his/her place of abode or business last known to the Seller or its agent and any notice or demand so served shall be deemed in all respect to have been validly and effectively given or made. Any notice which is posted shall be deemed have been served forty-eight hours after the hour of posting and where necessary to the context the singular shall include the plural and vice versa.
20. No claim whatsoever in respect of any material commission woven or processed by the Seller shall be made against the Seller, beyond the cost of either weaving or processing as charged by the Seller. Any such claim must be supplied in writing within fourteen days from the date of delivery to the Buyer.
21. No deduction from the sellers account shall be made by the Buyer unless the Seller has previously agreed in writing of such deduction.
22. The seller will not accept claims on account of samples.
23. The seller shall only be liable for the Sellers faults in excess of one unit (Eg. One linear metre or one kilogram) or unless otherwise agreed by the Seller in writing. Furthermore the Seller will only be liable for the product fault sold to the buyer for the authorised claim only. No other claim for the Buyers costs is eligible for claim
24. Any claims against the Seller in respect of product sold shall be made in writing by the Buyer within 14 days of delivery of such product. The Seller will not recognise any claims by the Buyer that do not conform to this condition.
25. The purchase by the buyer of “seconds” is done at the buyer’s own risk. The Seller will not, under any circumstances accept claims by the Buyer in respect of the sale of such product.
26. The purchase by the Buyer of product manufactured specifically for the Buyer is done at the Buyers own risk the seller will supply to the Buyer a sample of such product prior to completion of the sale. The seller will not, under any circumstances, accept claims by the Buyer in respect of such product after completion of such sale.
27. If any dispute arises with regard to the quality, quantity, out-turn or condition of any product or otherwise in connection with or under this sale the Buyer shall nevertheless make due a full payment for each delivery by the Seller under or in purported compliance with this sale to the intent that the Buyer shall not be entitled to deduct from any invoice any money by way of retention set off or otherwise.