1. APPLICATION OF TERMS AND CONDITIONS a) These terms and conditions apply to every dealing between Celmac Pty Ltd and Celmac Digital Pty Ltd "Celmac" and the “Customer”, and the Customer agrees to adhere to these Terms and Conditions and that they prevail over any other conditions whether verbal, implied or written to the extent permitted by law. b) These Terms and Conditions may be changed by Celmac from time to time and the then current version of the Terms and Conditions shall be binding upon the Customer.
2. CONDITIONS OF PROVISION OF CREDIT a) Celmac reserves the right to require the Customer to provide a bank guarantee or personal guarantee, or if the Customer is a company, to require that the directors and/or shareholders of the Customer provide personal guarantees. Celmac also reserves the right to change the terms and conditions or add further conditions at any time, to withhold supply or cease work at any time immediately upon written notice in its absolute discretion without a requirement to give any reasons. b) If the Customer is a company, in consideration of Celmac agreeing to supply the Customer, the directors of the Customer personally agree that they are jointly and severally obliged to pay to Celmac, all monies due to Celmac by the Customer whether prior demand has been made on the Customer or not. The directors agree to indemnify Celmac and this obligation shall be a continuing obligation. The Customer further agrees to provide any additional directors' personal guarantees upon demand.
3. ORDERS a) Orders are subject to acceptance by Celmac in whole or in part. The Customer should place a written order setting out full details and all of their requirements. If the Customer does not do this Celmac will not be responsible for any mistakes that may be attributed to the lack of written details. The Customer will be required to pay for such goods ordered by mistake. b) Celmac reserves the right to impose minimum order requirements which may be changed by Celmac from time to time. c) No order may be cancelled except with consent in writing from Celmac. The Customer will be responsible for and will indemnify Celmac for any and all loss suffered or incurred by Celmac by the cancellation. d) Any delivery fee may be charged to the Customer account in addition to the recorded cost of any goods and services without signature by or on behalf of the Customer. e) All goods shall be accepted at the sole risk of the Customer.
4. ACCEPTANCE OF ORDERS Orders will be deemed to have been accepted by Celmac at the earlier of: a) dispatch of the goods; or b) for Indent Items, when Celmac places an order for such goods; or c) if the Customer expressly asks for an acceptance in writing, upon the issuing of such acceptance in writing by Celmac. If the Customer wishes to change its order after acceptance of such order by Celmac, Celmac has no obligation to agree to any such change.
5. PRICES Celmac's price lists do not constitute an offer. Quotations are given and orders accepted only on the basis that the prices charged will be those applicable at the date of dispatch, subject to such discount, rebate, tax or other adjustment as may apply from time to time. All prices are subject to change without notice and are exclusive of GST. GST will also be charged on services and freight.
6. CREDIT TERMS - PAYMENT Without limiting the foregoing, in the event of Celmac granting a credit account to the Customer then the following shall apply: a) The credit account limit will be based on an assessment by Celmac of the Customer trade and other references. The level of credit provided is at the absolute discretion of Celmac. Celmac reserves the right to withhold supply of goods if the credit limit is exceeded. b) Subject to contrary written advice by Celmac, all invoices are due and payable 30 days from the date of invoice with the exception of Equipment and non-stock items which require a 25% deposit with the balance to be paid prior to delivery. c) Payments are to be made direct to Celmac Pty Ltd, PO Box 133, Brunswick West, Victoria, 3055. Payment may also be deposited directly into the Celmac bank account by request. d) Payments are not deemed to have been made until cleared funds are received into the Celmac bank account. The Customer shall be responsible for any fees incurred by Celmac if any payment is dishonoured. Such fees must be paid immediately, together with the balance owing on any original invoiced amount. e) Should the Customer default in its payment obligations hereunder Celmac is entitled to suspend deliveries and to cancel any existing contract for supply without notice. f) Celmac is entitled to charge interest on all accounts not paid by the due date for payment and the Customer undertakes to pay any interest so charged. Such interest shall be calculated on a daily basis from the due date for payment until Celmac receives payment at such rate up to but not exceeding 2% per month, g) All expenses, costs or disbursements incurred by Celmac in recovering any outstanding monies including but not limited to debt collection agency fees and solicitor’s costs on a solicitor and own client basis shall be paid by the Customer. h) Celmac may in its absolute discretion, at any time, request security or additional security to cover any amount of credit extended to the Customer, whether or not the Customer has defaulted in payment, and may withhold supply of any goods or credit arrangements until such security or additional security is provided.
7. SHIPMENT a) Representations by Celmac as to date and/or time for delivery are not guaranteed, except by special arrangement in writing. All representations are made in good faith, in the light of conditions and circumstances that are known to Celmac and prevailing at the time. b) Celmac shall not be liable for late deliveries or non-deliveries and under no circumstances shall Celmac be liable for any loss, damage or delay occasioned to the Customer or its customers arising from late or non-delivery of goods or service, whether such loss or damage is due to negligence or wilful act, misconduct or default of Celmac or any third party and whether or not if the same occurs in the course of the performance by Celmac of any contract or in circumstances which are foreseeable by Celmac or in circumstances which would constitute a fundamental breach of any contract or a breach of any fundamental term hereof. c) Goods will normally be shipped by the most convenient and economical method and route having regard to the nature of the goods. Celmac reserves the right to charge the Customer for delivery. If shipment is made at the Customer request via a method other than that which would normally be used by Celmac, such shipment will be made F.O.B. point of shipment and the Customer shall pay to Celmac the actual freight and any other charges incurred by Celmac in forwarding the order to its destination whether or not such charges appear on the invoice for the goods. d) Celmac may deliver by instalments. Each instalment shall be regarded as a separate contract and any defect in, or failure to deliver an instalment shall not give the Customer the right to cancel the balance of deliveries due under the order. e) The Customer will upon receipt inspect the goods and notify Celmac of any errors or shortages within three days after delivery quoting delivery docket numbers and all other relevant details.
8. DAMAGE OR LOSS IN TRANSIT Any claim for non-delivery, shortage in supply or damage occurring during the course of delivery by the Customer must be made in writing by the Customer to Celmac: a) within three days after delivery in the case of partial loss, damage or non-delivery of any separate part of a consignment, b) within fourteen days of the date of dispatch, as shown on the relevant invoice, in the case of non-delivery of the whole of a consignment. Celmac shall have the right at any time within 30 days after receipt of the claim to inspect the goods referred to in the claim. If the Customer disposes of such goods or any part thereof within the 30-day period without the written consent of Celmac, all claims in respect of the goods so disposed of shall be deemed to have been waived by the Customer.
9. TITLE AND RISK Celmac reserves the following rights in relation to stock until all amounts owed by the Customer to Celmac are fully paid: a) legal ownership of goods, b) to enter the Customer premises (or the premises of any third party where the goods are located) using reasonable force, to repossess the goods without the Customer being able to make a claim for trespass. All costs of repossession of goods by Celmac will be payable by the Customer, and c) to keep or resell any goods repossessed pursuant to (b) above. The Customer shall be bailee of goods in its possession but title for such goods remains with Celmac. If the goods are resold, or products manufactured using the goods are sold by the Customer, the Customer shall hold such part of the proceeds of any such sale as represents the invoice price of the goods sold or used in the manufacture of the goods in a separate identifiable account as the beneficial property of Celmac and shall pay such amounts to Celmac upon request. Notwithstanding the provisions above, Celmac shall be entitled to maintain an action against the Customer for the whole purchase price and any other loss suffered or incurred by Celmac. Risk in the goods supplied by Celmac shall pass to the Customer immediately on delivery and the Customer shall keep the goods fully insured, safe and readily identifiable.
10. PRODUCT WARRANTY AND RETURNS Goods are non-refundable with the exception of faulty materials. The Customer is responsible for testing and determining the suitability of the material for the purpose for which it is intended to be used. Celmac withdraws and shall not be bound by any representation, warranty, condition or statement affecting the provision of any goods and services to the Customer by Celmac and the Customer acknowledges such withdrawal prior to any sale of any goods or provision of services by Celmac. Claims for faulty materials must be made in writing 7 days from date of delivery. Claims made after 7 days will only be accepted at Celmac's discretion. No returns will be accepted without prior authority from Celmac. Celmac will issue a return approval number and will nominate a transport company. A $20.00 restocking fee applies. Credits will be issued based on the quantity of stock (meters) returned by the customer. Celmac reserves the right to discontinue any product or to change any product materials, design specification or colour without prior notice. As the application of our product is beyond the control of Celmac, no warranty is expressed or implied in relation to the performance of any product in any given situation.
11. INSTALLATION The price of equipment does not include installation by Celmac except as expressly agreed in writing by Celmac. Installation shall take place during Celmac's normal working hours and the Customer shall, at its own expense and prior to the goods being delivered, prepare its premises and in all respects make the same safe and suitable for the installation of the goods and shall provide all electrical or other fittings required to receive and install the goods, provided that all such fittings shall be suitable and in accordance with the manufacturer's specifications.
12. EXCLUSION OF LIABILITY AND INDEMNITY Celmac shall not be liable for any loss or damage of whatever nature and howsoever arising (including without limiting the generality of the foregoing liability for consequential loss or damage) from its sale of the goods to the Customer or by the use or misuse of such goods by the Customer or any third party, and all conditions and warranties are hereby excluded to the extent permitted by law. Where permitted by law, Celmac's liability to the Customer in respect of any breach of condition or warranty implied by law which has not otherwise been excluded, shall be limited to the following, at Celmac's option; in the case of goods: a) the replacement or repair of the goods, or b) payment of the cost of replacing or repairing those goods and/or in the case of services: a) the supply of the service again or b) payment for the cost of the service. Subject to the exceptions hereinbefore contained, Celmac shall not be liable to any user of the goods and the user shall indemnify and keep Celmac indemnified against all losses, costs, claims, demands, expenses and liabilities of whatsoever nature including without prejudice to the generality of the foregoing, claims for death, personal injury, damage to property and consequential loss (including loss of profit) which the user, the Customer or any other person may sustain, pay or incur as a result of or in connection with the use of the goods, whether or not in accordance with instructions or advice given by Celmac and whether or not directly or indirectly attributable to negligence or wilful act, misconduct or default of Celmac or any third party and whether or not the same occurs in the course of the performance by Celmac of any contract or in circumstances which are foreseeable by Celmac or in circumstances which would constitute a fundamental breach of any contract or a breach of any fundamental term hereof.
13. CHANGE OF OWNERSHIP The Customer shall no later than 14 days prior to any proposed changes of ownership, name, address, internal structure and/or alteration, addition to the shareholding or directorship, provide full details of the proposed change, alteration or addition to Celmac and the Customer shall be liable for any goods supplied by Celmac after such change, alteration or addition unless Celmac has acknowledged by writing acceptance of the proposed change, alteration or addition.
14. MISCELLANEOUS a) This Agreement shall be governed by and interpreted in accordance with the laws of Victoria and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that jurisdiction and any appeal courts from them. b) The Customer shall not assign, transfer or novate its rights and obligations under this Agreement, without the prior written consent of Celmac. c) If any provision of these terms and conditions is, for any reason, wholly or partly held to be illegal, void, invalid or unenforceable by a court of law or other competent authority, that provision shall be severed in the relevant jurisdiction and all other provisions of the terms and conditions shall continue in full force and effect. d) The Customer and the directors of the Customer hereby charge any real property or part of real property legally or beneficially owned by them and consent to the lodging of a caveat over any such real property by Celmac.
15. ACCEPTANCE The material has been supplied on the basis that these conditions form part of the sale. Acceptance of goods by the Customer will be deemed to constitute acceptance of these conditions.