1:Interpretation
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1.1 Unless otherwise inconsistent
with the context the word "person" shall
also mean corporation;
1.2 "goods" shall include services.
1.3 Words importing the singular number shall be deemed to include
the plural and vice versa. Words importing the male gender shall
be deemed to include the female and neuter gender and vice versa.
1.4 "Hospitality Equipment 2020" shall
mean Hospitality Equipment 2020 Pty Ltd its successors and assigns.
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2:Offer and Acceptance, and Cancellation of orders
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2.1 Any quotation made by Hospitality Equipment 2020 is not an
offer to sell or to provide goods. Hospitality Equipment 2020 shall
not be bound by any order given in pursuance of any quotation until
it is accepted in writing by Hospitality Equipment 2020 or by the
commencement of supply or the provision of goods. Unless otherwise
agreed in writing, all orders are subject to acceptance by Hospitality
Equipment 2020 within 30 days of receipt by Hospitality Equipment
2020 of the order. These terms and conditions shall be deemed to
be incorporated into any agreement between Hospitality Equipment
2020 and the purchaser. Any terms and conditions contained in any
order, offer, acceptance or other document of the purchaser and all
representations, statements, terms and conditions and warranties
(whether implied by statute or otherwise) not embodied herein are
expressly excluded to the fullest extent permitted by law.
2.2 Cancellation of orders shall only be valid if accepted by Hospitality
Equipment 2020 in writing. Where the cancellation of an order has
been accepted by Hospitality Equipment 2020 then Hospitality Equipment
2020 may charge a cancellation fee of 15% of the list price value
or where there the goods are special products (not on the price list)
then a cancellation fee equivalent to any costs and charges incurred
by Hospitality Equipment 2020 in the production or supply of the
goods (this fee shall not be less than 15% of the price of the goods).
2.3 Insofar as goods or services supplied by Hospitality Equipment
2020 are not of a kind ordinarily acquired for personal domestic
or household consumption, and unless the purchaser establishes that
reliance on this provision would not be fair and reasonable, the
liability for breach of a condition or warranty; implied into this
contract by the Trade Practices Act 1974 (other than a condition
implied by Section 69) is limited:
(a) in the case of goods to any one of the following as determined
by ;
(i) the replacement of the goods or the supply of equivalent goods;
or
(ii) the repair of the goods; or
(iii) the payment of the cost of replacing the goods or of acquiring
equivalent goods; or
(iv) the payment of the costs of having the goods repaired;
(b) in the case of services to any one of the following as determined
by ;
(i) the supplying of the services again, or
(ii) the payment of the cost of having the services supplied again.
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3:Delivery
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3.1 Any date quoted for delivery is an estimate only unless a guarantee
shall have been given by Hospitality Equipment 2020 in writing. The
purchaser shall accept and pay for goods if and when tendered notwithstanding
any failure by Hospitality Equipment 2020 to deliver by the quoted
date. Written advice to the purchaser that goods are ready for delivery
whether in whole or in part shall constitute tendering and the terms
of payment shall apply.
3.2 Hospitality Equipment 2020 shall not be liable to any purchaser
or any other party for any loss or damage including direct or indirect
or consequential injury loss or damage whatsoever by reason of any
delay in delivery whether the same is due to the negligence of Hospitality
Equipment 2020 or any other party, actions constituting fundamental
breach of contract, strike or any other industrial action, or any
other cause whatsoever.
3.3 Hospitality Equipment 2020 reserves the right to deliver by instalments
and if delivery is made by instalments the purchaser shall not be
entitled to terminate or cancel the contract.
3.4 Any quotation containing a provision to supply goods "ex
stock" is subject to fulfilment of prior orders at the date
of receipt of the purchaser's
order.
3.5 All goods are sold under FOB or FOR basis. Freight costs are
not included in any prices contained in any price list or quote.
Should the
purchaser not provide instructions at the time of sale as to the
carrier to use then Hospitality Equipment 2020 may engage a carrier
of its own
choosing and the purchaser shall reimburse Hospitality Equipment
2020 the cost of the carrier.
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4:Prices and Payment
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4.1 Prices contained in any price
list are subject to change without notice.
4.2 Goods will be invoiced at the list price
as of the date of dispatch unless otherwise agreed.
4.3 Unless otherwise agreed in writing payment
terms are COD or where a credit account is open net cash 30
days from the date of the invoice.
4.4 Where payment is made by credit card Hospitality
Equipment 2020 may charge an additional fee of 1.5 to 4% of
the total value of the invoice.
4.5 These terms as to the payment shall be
of the essence of the contract.
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5:Title
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5.1 Notwithstanding the delivery of the goods or part
thereof the goods remain the sole and absolute property of Hospitality
Equipment 2020 as full legal and equitable owner until such time
as the purchaser shall have paid Hospitality Equipment 2020 the full
purchase price together with the full price of any other goods the
subject of any other contract with Hospitality Equipment 2020.
5.2 The purchaser acknowledges that he receives possession of and
holds goods delivered by Hospitality Equipment 2020 solely as bailee
for Hospitality Equipment 2020 until such time as the full price
thereof is paid to Hospitality Equipment 2020 together with the full
price of any other goods then the subject of any other contract with
Hospitality Equipment 2020.
5.3 Until such time as the purchaser becomes the owner of the goods,
he will;
(a) store them on the premises separately;
(b) ensure that the goods are kept in good and serviceable condition;
(c) secure the goods from risk, damage and theft; and
(d) keep the goods fully insured against such risks that are usual
or common to insure against in a business of a similar nature to
that of the purchaser.
5.4 (i) Until the goods are paid for in full, Hospitality Equipment
2020 authorises the purchaser to sell the goods as its agent. However,
the purchaser shall not represent to any third parties that it is
acting in any way for Hospitality Equipment 2020. Hospitality Equipment
2020 will not be bound by any contracts with third parties to which
the purchaser is a party.
(ii) Records shall be kept by the purchaser of any goods owned by
Hospitality Equipment 2020.
(iii) The proceeds of any sale of the goods shall be paid into a
separate account and held in trust for Hospitality Equipment 2020.
The purchaser shall account to Hospitality Equipment 2020 from this
fund for the full price of the goods.
(iv) The purchaser is entitled to a period of credit, but if prior
to the expiration of the period of credit the goods are sold and
the proceeds of sale received the purchaser shall account forthwith
to Hospitality Equipment 2020 for the price of the goods.
(V) Should the purchaser die, stop payment or call a meeting of its
creditors or become insolvent or subject to the bankruptcy laws or
being a company calls a meeting for the purpose of or to go into
liquidation or has a winding-up petition presented against it or
has a receiver or administrator appointed, Hospitality Equipment
2020 may at its option notwithstanding its waiver of such default
or failure and without prejudice to its other rights under this contract
suspend or cancel this contract or require payment in cash before
or on delivery or tender of goods or documents notwithstanding terms
of payment previously specified or may repossess and take over the
goods and dispose of the same in its own interest without prejudice
to any claim it may have for damages for any loss resulting from
such resale.
5.5 In the event that the purchaser uses the
goods/product in some manufacturing or construction process of
its own or some third
party, then the purchaser shall hold such part of the proceeds
of such manufacturing or construction process as relates to
the goods/product in trust for Hospitality Equipment 2020. Such
part
shall be deemed to equal in dollar terms to the amount owing
by the purchaser to Hospitality Equipment 2020 at the time of the
receipt of such proceeds.
5.6 If the purchaser does not pay for any
goods on the due date then Hospitality Equipment 2020 is hereby
irrevocably authorised
by the purchaser to enter the purchaser's premises or any premises
under the control of the purchaser as agent of the purchaser
and use reasonable force to take possession of the goods without
liability
for the tort of trespass, negligence or payment of any compensation
to the purchaser whatsoever.
5.7 On retaking possession of the goods Hospitality
Equipment 2020 may elect to refund to the purchaser any part
payment that may
have been made and to credit the purchaser's account with the
value of the goods less any charge for recovery of the goods,
or to resell
the goods.
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6:Risk
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Unless otherwise agreed in writing, risk in the goods
shall pass to the purchaser at the time when the goods have been
placed on the vehicle which is to effect delivery from Hospitality
Equipment 2020's store or warehouse or delivery to the purchaser
whichever is the sooner. The goods shall remain at the purchaser's
risk at all times unless and until Hospitality Equipment 2020 retakes
possession of the goods pursuant to these terms and conditions.
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7:Claims and Warranty
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7.1 Subject to clause 2.3 herein and the balance of
this clause, Hospitality Equipment 2020 shall not be liable for any
loss or damage whatsoever and howsoever arising whether direct indirect
or consequential or in respect of any claim whenever and however
made for any loss or damage deterioration deficiency or other fault
or harm in the goods manufactured, work executed or services provided
by or on behalf of or in any arrangement with Hospitality Equipment
2020 or occasioned to the purchaser or any third or other party or
to his or their property or interest and whether or not due to the
negligence of Hospitality Equipment 2020 its servants or agents.
7.2 As soon as any of the facts or matters which form any part of
any claim or complaint whatsoever become known to the purchaser,
the purchaser shall within fourteen days notify Hospitality Equipment
2020 in writing of the same.
7.3 Hospitality Equipment 2020 shall not be liable in any circumstances
for any;
(i) defects or damages caused in while or in part by misuse, abuse,
neglect, electrical or other overload, nonsuitable lubricant, improper
installation repair or alteration (other than by ) or accident.
(ii) any transport freight charges installation removal labour or
other costs;
(iii) defects in goods not manufactured by it but will endeavour
to pass on to the purchaser the benefit of any claim made by Hospitality
Equipment 2020 and accepted by the manufacturer of such goods under
a warranty given by the manufacturer of such goods provided that
nothing contained in this subparagraph shall limit the rights of
the purchaser to proceed against Hospitality Equipment 2020 pursuant
to the Trade Practices Act 1974.
(iv) technical advice or assistance given or rendered by it to the
purchaser or not in connection with the manufacture construction
or supply of goods for or to the purchaser provided always that Hospitality
Equipment 2020 has rendered such services with due care and skill
and that any material supplied in connection with those services
are reasonably fit for the purpose for which they are supplied.
7.4 The exemptions, limitations, terms and conditions in these terms
and conditions shall apply whether or not the loss or damage is caused
by negligence or actions constituting fundamental breach of contract.
7.5 Hospitality Equipment 2020 warrants that the goods are free from
defects in parts for 12 months and defects in workmanship for a period
of 3
months from the date of delivery subject to the following;
(i) the repairs are carried out by approved and qualified personnel
and in accordance with Hospitality Equipment 2020's instructions,
except for microwave ovens or any other portable items in which case
any repairs must be carried out in Hospitality Equipment 2020's workshop
or by its agent in the agent's workshop.
(ii) All parts not covered by this warranty are to be paid COD unless
otherwise agreed or credit has been granted.
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8:Force Majeure
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If by reason of any fact, circumstance, matter or thing
beyond the reasonable control of Hospitality Equipment 2020, Hospitality
Equipment 2020 is unable to perform in whole or in part any obligation
under this agreement, Hospitality Equipment 2020 shall be relieved
of that obligation under this agreement to the extent and for the
period that it is so unable to perform and shall not be liable to
the purchaser in respect of such inability.
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9:Default
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Upon the occurrence of default by the purchaser in
compliance with these terms or any other agreement with Hospitality
Equipment 2020;
9.1 Hospitality Equipment 2020 may at its discretion withhold further
supplies of goods or cancel this agreement, or vary the terms of
this agreement without prejudice to its rights hereunder PROVIDED
HOWEVER that Hospitality Equipment 2020 may at any time and from
time to time upon such terms as it may determine waive any of its
rights under this Clause, but without prejudice to its rights thereafter
of any of the events hereinbefore referred to or upon the continuation
after any such waiver of any state of affairs the subject of such
waiver.
9.2 The purchaser shall pay to Hospitality Equipment 2020 interest
at the rate of 1.5% per month on daily balances in respect of any
amounts as may from time to time be overdue until paid and such money
together with all interest shall be recoverable forthwith from the
purchaser.
9.3 Without prejudice to any other right or remedy the purchaser
shall indemnify Hospitality Equipment 2020 against any costs' fees
charges and disbursements charged by any solicitor engaged for the
purpose of the collection or recovery of moneys due and payable by
the purchaser to Hospitality Equipment 2020 on an indemnity basis
and any fees, charges, disbursements or commissions charged by any
mercantile agency or debt collecting firm.
9.4 The purchaser shall pay to Hospitality Equipment 2020 an administration
fee of $50.00 on the occurrence of every event of default.
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10:Charge
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The Purchaser hereby charges with payment of any indebtedness
to Hospitality Equipment 2020 all beneficial interest (freehold and
leasehold) in land and personal property held now or in the future
by the Purchaser. The Purchaser agrees that if demand is made by
Hospitality Equipment 2020, the Purchaser receiving such a demand
will immediately execute a mortgage or other instrument of security,
or consent to a caveat, as required, and against the event that the
Purchaser fails to do so within 7 days of being so requested, the
Purchaser hereby irrevocably and by way of security, appoints any
credit manager or solicitor engaged by Hospitality Equipment 2020
to be its true and lawful attorney to execute and register such instruments.
Notwithstanding any other provision in this clause and in addition
thereto Hospitality Equipment 2020 may lodge a caveat noting the
interest given by this charge on the title of any property of the
Purchaser whenever it so wishes.
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11:GST
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The Purchaser must pay to Hospitality Equipment
2020 any amount which is payable by Hospitality Equipment 2020
in respect
of any supply to the Purchaser on account of GST. Each charge or
fee for a supply rendered by Hospitality Equipment 2020 does not
include an amount to cover the liability of Hospitality Equipment
2020 for GST on any supplies made under this agreement which are
taxable supplies within the meaning of the GST Act. In relation
to taxable supplies made under this agreement Hospitality Equipment
2020 agrees to issue the Purchaser with a tax invoice in accordance
with the GST Act or a document satisfying the minimum information
requirement set out in GSTR 2000/2003 to entitle a recipient of
a
taxable supply to claim an input tax credit without holding a tax
invoice. “GST” means GST as defined in a New Tax System
(Good and Services Tax Act 1999). “Supply” means supply
as defined in a New Tax System (Goods and Services Tax Act 1999).
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12:Trusts
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12.1 This clause applies if the Purchaser is a trustee
and whether or not Hospitality Equipment 2020 has notice of the Trust.
12.2 Where the Purchaser comprises two or more persons and any of
those persons is a Trustee this clause applies to such Trustee.
12.3 The Purchaser agrees that even though the Purchaser enters into
this Agreement as Trustee of the Trust, the Purchaser also shall
be liable personally for the performance and observance of every
covenant to be observed and performed by the Purchaser expressed
or implied in this Agreement.
12.4 The Purchaser warrants its complete, valid and unfettered power
to enter into this Agreement pursuant to the provisions of the Trust
including power to obtain the credit facility from Hospitality Equipment
2020 and to enter into the covenants to be observed and performed
by them expressed or implied in this Agreement and warrants that
its entry into this Agreement is in the due administration of the
Trust.
12.5 The Purchaser covenants that the rights of indemnity which it
may have against the property of the Trust have not been, and in
the future will not be, excluded, modified, released, lost or diminished
(whether by agreement, breach of trust or otherwise).
12.6 The Purchaser shall not, without Hospitality Equipment 2020's
prior written consent:
(i) resign or be removed as Trustee of the Trust or appoint or allow
the appointment of a new or additional Trustee of the Trust;
(ii) amend or revoke any of the terms of the Trust;
(iii) vest or distribute the property of the Trust or advance or
distribute any capital of the Trust to a beneficiary or resettle
any of the property of the Trust;
(iv) permit a beneficiary to have the use, occupation, employment
or possession of the property of the Trust;
(v) do or permit or omit to do an act or thing in breach of the Trust
or which would permit the Trustee to be removed as Trustee of the
Trust;
(vi) exercise or permit or allow to be exercised a power to change
the vesting date of the Trust or provide for an early determination
of the Trust;
(vii) lend any money, give any guarantee or incur any debt other
than in the ordinary course of business of the Trust; or
pay any of the income of the Trust to any beneficiary of the Trust
if such payment will prejudice or affect the Purchaser's ability
to
Pay all monies due to .
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13:Service
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The parties agree that service of any notices, demands,
proceedings summons suits or actions (process) upon the Purchaser
may be effected by Hospitality Equipment 2020 or its solicitors sending
such process by prepaid post to the address given in the Credit Application
as the address of the Purchaser. Service shall be deemed to have
been effected two business days after the posting of the process. |
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