- CUSTOMERS
STATUTORY RIGHTS
These conditions do not affect the rights, entitlements and
remedies conferred on the Customer who is a Consumer under the
Trade Practices Act.
- INTERPRETATION
Except to the extent that such interpretation is excluded by or
repugnant to the context, wherever the following words are used in
these Conditions "Stalco" means Stalco Continuous Gutters Pty Ltd;
"Bankrupt" means and includes the situation where
execution has been levied upon the whole or any part of the assets
of the Customer and, in respect of a Customer who is an individual,
the situation where the Customer has committed an act of bankruptcy
or is or becomes bankrupt or subject to any deed of assignment,
arrangement or composition with his creditors in accordance with
the bankruptcy laws, and in respect of a Customer who is a
corporation, the situation where the Customer is wound up or is the
subject of the presentation of a petition or the making of an order
or the passing of a resolution for its winding up, or is placed
under official management, or causes a meeting of its creditors to
be summoned for the purpose of placing it under official
management, or has a receiver or a receiver and manager appointed
in respect of all or any part of its assets, or has an inspector
appointed in respect to all or any part of its affairs or is
subject to an application for any such appointment, or has a
compromise or arrangement proposed between itself and its creditors
or any class of them;
"Conditions" means these Conditions of Sale and any
further or other conditions of sale amending or adding to these
Conditions;
"Consumer" has the meaning given to it in the Trade
Practices Act 1974, as amended, consolidated or replaced from time
to time;
"Consumer Goods" means goods of a kind ordinarily
acquired for personal, domestic or household use or
consumption;
"Customer" means the customer referred to on the
front of a Stalco Invoice and / or Stalco Application for
Credit;
"Goods" means the goods described on the front of a
Stalco Invoice and includes the terms Rainwater Goods and
Continuous Guttering as used in this document;
"Trade Prices" means the net amounts, excluding GST,
charged for Goods;
"Trade Practices Act" means and includes the Trade
Practices Act 1974 and relevant State or Territory Fair Trading or
other consumer protection legislation and includes any statute
amending, consolidating or replacing the same from time to
time.
- ENTIRE CONTRACT top of page Unless
there are other or different terms and conditions set out in
another document signed by a duly authorised representative of
Stalco these conditions constitute the entire contract between
Stalco and the Customer and, without limiting this:
- any terms and conditions set out in any order or other document
submitted by or on behalf of the Customer shall be inapplicable
unless any particular part of those terms and conditions or other
modification or addition to these Conditions is expressly agreed to
in writing by Stalco;
- except as provided in these Conditions, and except for those
conditions and warranties implied by the Trade Practices Act which
may not be modified or excluded, the Customer agrees that it has
not relied on any inducement, representation or statement made by
or on behalf of Stalco in purchasing the Goods and that there are
no implied conditions or warranties herein and no collateral
contracts in existence.
- ADVICE top of page
Subject to Condition 1 any advice, recommendation, information,
assistance or service provided by Stalco in relation to the
application or use of the Goods is given in good faith and is
believed by Stalco to be appropriate, but is given without any
liability or responsibility on Stalcos part.
- TRADE PRICES & CHARGES top of page
Notwithstanding prior quotations or acknowledgments the Trade
Prices, delivery and other charges specified for or in relation to
the Goods may, at Stalco's option, be subject to alteration without
prior notice.
- TAXES top of page
The Customer shall pay any sales, GST and other taxes on the Goods
and charges.
- STOCK AVAILABILITY top of page
Stalco reserves the right to alter or vary, delete and/or add
Goods, without notice. No liability of any kind whatsoever shall be
accepted by Stalco in the event of Stalco being unable to fulfil a
Customers order as a consequence of such changes or
variations.
- SPECIFICATION top of page
The Goods supplied are subject to the dimensions, finishes, and
physical properties as listed in Stalco's Product Specification
Brochure. Goods may be supplied that vary from the specifications
set out in the Stalco Product Specification Brochure but such Goods
are of such quality as to be generally acceptable in the
trade.
- DELAYS top of page
The date for delivery (if any) shown on the front of a Stalco
invoice is the estimated date for delivery only and Stalco shall be
under no liability for any loss or damage howsoever arising if the
Goods are not delivered by that date. Where Stalco is unable to
deliver the Goods because of insufficient stock, accidents and/or
breakdowns to machinery or vehicles, or any cause beyond Stalco's
reasonable control, the estimated date for delivery shall be
extended until the cessation of the effect of such matter or
matters.
- DELIVERY BY INSTALMENTS top of page
Stalco reserves the right to deliver the Goods in whole or by
instalments, as well as to deliver prior to the date for delivery
(if any) shown on the front of the Stalco invoice. Where the Goods
are to be delivered by instalments each instalment shall be deemed
to be sold under a separate contract. Any failure on the part of
Stalco to deliver within the time stated shall not entitle the
Customer to repudiate the contract with regard to the balance
remaining undelivered.
- RISK top of page
The risk in the Goods shall, unless otherwise agreed in writing,
pass to the Customer upon delivery to the Customer or its agent or
to a destination nominated by the Customer or to a carrier
commissioned by the Customer.
- PROPERTY top of page
- Property in the Goods shall remain with Stalco and Stalco
reserves the right to dispose of the Goods until such time as:
- full payment is made for all amounts owing by the Customer to
Stalco under these Conditions; or
- the Customer sells the Goods (whether in their original form,
or altered, or as part of other products) to its customers in the
ordinary course of business.
- If the Customer fails to pay all or any part of the Customer's
total indebtedness to Stalco under these Conditions or an event of
default as specified in condition 14 occurs, Stalco may without
notice and without prejudice to any of its other rights and
remedies recover and/or resell the Goods or any of them and may
enter upon the Customer's premises by its servants or agents for
that purpose.
- Until payment in full, for all amounts owing by the Customer to
Stalco under these Conditions:
- the Customer shall store the Goods in a way that clearly
manifests Stalco's title;
- the Customer shall hold the Goods as bailee and as a fiduciary
for Stalco and;
- in the event of sale of the Goods (whether in their original
form, or altered, or as part of other products), the Customer in
its position as a fiduciary shall:
- assign to Stalco the benefit of any claim against a Customer;
and
- account fully to Stalco for the proceeds of sale.
- TRADING TERMS top of page
- Payment of Accounts:
The Customer shall pay the balance outstanding on any credit
account, operated by Stalco in their name, within 30 days of the
date of the monthly debtors statement issued by Stalco, or within
another period of time agreed and acknowledged by Stalco, in
writing. Where a credit account has not been established by Stalco,
in the Customers name, the Cus tomer shall pay Stalco for the Goods
and any charges, by cash, bank cheque or credit card at the time of
delivery, before delivery or after delivery. The method and time of
payment shall be at Stalco election.
- Returns for Credit:
All Goods returned for credit by the Customer shall be returned to
Stalco's warehouse in prime saleable condition. Stalco shall have
the right to inspect the Goods to determine their condition. If the
Goods are accept able to Stalco a charge equal to 10% of the
original invoice value shall be deducted from any credit given or
payment made to the Customer. Stalco will not accept back for
credit any Continuous Guttering or other manufacturers Goods
purchased by Stalco for exclusive sale to the Customer.
- DEFAULT top of page
Should default be made by the Customer in paying any sum due under
this or any other contract between Stalco and the Customer as and
when it becomes due or should the Customer be or become bankrupt:
- Stalco may (without having to give notice thereof to the
Customer) suspend all further deliveries until the default has been
made good or cancel this or any further contract with regard to
future deliveries;
- Stalco may refuse, change or withdraw extensions of credit at
any time, and may demand the immediate cash payment of all monies
owing under this or any such other contract; and/or
- the Customer shall, on demand by Stalco, pay to Stalco a
default interest charge at the rate equivalent to the prime rate
for an overdraft of $100,000 and over for the time being applied by
the Commonwealth Bank of Australia, plus 2 percentage points,
calculated on a daily basis on any monies due but unpaid, such
interest to be computed from the due date for payment without
prejudice to any other right or remedy of Stalco under or in
respect of these Conditions or such event.
- WARRANTY top of page
- Stalco warrants that:
- the Goods delivered pursuant to the contract shall conform to
the description shown on the front of the Stalco invoice; and
- Subject to paragraph (b) of this Condition, the Goods shall be
free from defects in material and workmanship except such defects
as are normally regarded as being commercially acceptable.
-
- In the event that Stalco issues an express written warranty in
respect of the Goods these Conditions shall be read and construed
subject to the terms and conditions of the warranty, and in the
event of any inconsistency the terms and conditions of that
warranty shall prevail.
- So far as surface coatings (if any) are concerned Stalco's
warranty is as stated in any express written warranty, as referred
to in the preceding paragraph i) of this paragraph and no other
representation, condition or warranty is given in respect of the
same.
- Sale to Non-Consumers:
- Where the Customer is not a Consumer, if the Customer alleges
and Stalco agrees that any of those Goods do not correspond with
the description of them on the front of the Stalco invoice, or are
defective, as the case may be, then, provided that those Goods are
preserved intact and available for inspection by a representative
of Stalco and are returned to Stalco in the same order and
condition as that in which they were delivered, Stalco shall at its
option replace those Goods or reimburse the Customer for the amount
of the purchase price paid for them or repair the Goods or
reimburse the Customer for the cost of having the Goods repaired,
but any claim must be made within seven (7) days from the date of
delivery of those Goods. In no circumstances will Stalco incur any
liability, in respect of or arising out of or in connection with
any special, consequential, direct or indirect loss, damage, harm
or injury suffered or incurred by the Customer; and
- If the Customer duly calls upon Stalco to indemnify it pursuant
to a right accruing to the Customer under the Trade Practices Act
in respect of any liability of the Customer to a Consumer as a
result of a breach of a condition or warranty implied by the Trade
Practices Act in contract for the supply of Goods by the Customer
to that Consumer,sub-paragraph i) will not apply and in espect of
Goods that are Consumer Goods, Stalco's liability is limited to
indemnifying the Customer in accordance with the Trade Practices
Act, while in respect of Goods that are not Consumer Goods Stalco's
liability is, subject to the Trade Practices Act, limited to a
liability to pay to the Customer an amount equal to the cost of
obtaining equivalent Goods or the cost of having the Goods
repaired, whichever is the lowest amount.
- Sale to Consumers.In the case of Goods supplied by Stalco to a
Customer who is a Consumer, to the extent that the Goods are not
Consumer Goods, the liability of Stalco to that Customer for breach
of any warranty or condition (other than a warranty or condition
implied by Section 69 or other equivalent section of the Trade
Practices Act) or for breach of any duty of care shall in all cases
be limited, at the option of Stalco, to any one or more of the
replacement of the Goods or the supply of equivalent Goods, the
repair of the Goods, 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, and (without limiting this) shall not
include any liability in respect of or arising out of or in
connection with any special, consequential, direct or indirect
loss, damage, harm or injury suffered or incurred as a result of
such breach.
- Limitations of liability to Customers, who are not Consumers
and those who are Consumers, regarding installation of Goods.Stalco
shall not be held responsible for any defects in the Goods, where
the conditions and exclusions, or any one or all of them, as
contained in Stalco's written or published Warranty, current at the
time of purchase of the Goods, are not satisfied.
- ORDERS top of page
- Orders for lengths of Continuous Guttering shall only be
accepted in increments of 100mm.
- The maximum length of any one piece of Continuous Guttering is
20 metres. Lengths ordered over 20 metres will not be delivered
unless prior special handling arrangements have been made at the
time of ordering. Stalco shall not assume any responsibility for
gutter shape or straightness for lengths over 20 metres. It is the
responsibility of the Customer to satisfy themselves regarding the
maximum lengths for various gutter profiles, by reference to the
relevant Australian Standard, before placing an order.
- The minimum order quantity for rollout of Continuous Gutter to
be roll formed on site is one length of 5 metres.
- ORDER VARIATIONS top of page
- Alterations to orders - alterations to the size, dimensions or
physical properties of Goods will not be accepted in regard to
orders which are either completed or in production.
- Cancellation of orders - where the Customer cancels all or part
of an order prior to commencement of production of the Goods it
shall pay to Stalco as liquidated damages an amount equal to 5% of
the value of the cancelled Goods plus GST; where the Customer
cancels all or part of the order after the commencement of
production of the Goods it shall pay to Stalco as liquidated
damages the full value of the Goods plus GST, cancelled less the
current scrap value thereof as determined by Stalco.
- Deferment of delivery - where the Customer requests a deferment
of delivery of the Goods and such deferment is agreed to by Stalco,
the date to which delivery is deferred shall be deemed to be the
date on which delivery is to be made for the purposes of Condition
9. From the originally nominated delivery date until the date of
actual delivery the Customer shall pay a warehousing fee as
nominated by Stalco.
- DELIVERY CHARGES top of page
- An order delivered for a Customer, will attract the charge for
delivery as specified, in the Stalco List of Trade Prices.
- An order delivered for a Customer, consisting of Goods
purchased by Stalco exclusively for the Customer will attract a
charge for delivery, which is the higher of the amount of the
delivery charge invoiced to Stalco by its supplier or the
applicable Stalco charge for delivery.
- A charge for delivery, as specified in the Stalco List of Trade
Prices shall apply to a redelivery of Goods, where it was known by
the Customer that the initial delivery could not be made without
special .handling and/or transport arrangements being made, and the
Customer failed to inform Stalco, with adequate notice, prior to
Stalco attempting to effect delivery.
- WAIVER top of page
The failure by Stalco to enforce any of these Conditions or to take
action in respect of any breach shall not be a waiver of any of
these Conditions even if such failure or breach is continuing and
habitual or repeated from time to time and no estoppel may be
pleaded against Stalco either at law or in equity in any
circumstances whatsoever.
- GOVERNING LAWS top of page
These Conditions shall be governed by and construed in accordance
with the law of New South Wales.
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