(a) In these conditions: Company: means Rossetto Group Pty Ltd (ACN 645 514 665) of 80 Invermay Road, Invermay in Tasmania. Customer: means any person offering to contract with the Company on these terms and conditions and any person who purchases Goods from the Company. Delivery Date: means the date of delivery as agreed between the Customer and the Company Goods: means all the products and services agreed to be supplied by the Company to the Customer under any contract, arrangement or understanding between the Company and the Customer.
2. Terms of Sale
All goods and services supplied by Rossetto Group Pty Ltd (Company) are supplied on these terms and conditions. Any reference to the Customer also includes its respective successors or permitted assigns. The singular includes the plural and the converse. If the Customer constitutes more than one person or entity, these Terms and Conditions bind each of them jointly and severally.
These conditions (which shall only be waived in writing signed by the Company) shall prevail over all conditions of the Customer’s order to the extent of any inconsistency.
Any order by the Customer for the supply of Goods shall:
a) If in writing, be signed by an authorised representative of the Customer;
b) Identify the Goods ordered;
c) Be subject to these Terms and Conditions; and
d) Specify the required date of delivery.
The Company may in its absolute discretion refuse to provide Goods or Services where:
a) Goods are unavailable for any reason whatsoever;
b) Credit limits cannot be agreed upon or have been exceeded; or
c) Payment for Goods or Services previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of the Company associated with the Customer under the same or another contract, has not been received by the Company. No order may be cancelled by the Customer except with the written consent of the Company. In the event of a cancellation of the order by the Customer, the Company has the right to claim indemnity against all losses suffered by the Company as a result of such
a) The Company is entitled to charge for delivery of the Goods.
b) The Company is not bound to accept any delivery date notified by the Customer
c) The delivery times made known to the Customer are estimates only and the Company is not liable for late delivery or non-delivery.
d) The Company is not liable for any loss, damage or delay occasioned to the Customer arising from late or non-delivery or late instillation of the Goods.
e) The Company is not liable to the Customer or any person claiming through the Customer for any loss or damage to the Goods in transit caused by any event of any kind or by any person (whether or not the Company is legally responsible for the actions of that person).
f) The Company will not supply labour required to unload the Goods on delivery. Any additional labour required to unload the Goods is the responsibility of the Customer and shall be undertaken at the Customers cost.
g) Delivery of the Goods shall be deemed to have occurred upon either the collection of Goods from the Company’s premises by the Customer or upon the arrival of Goods at the Premises as supplied by the Customer.
h) The Company may in its absolute discretion unload goods at any premises that the Customer nominates for delivery. If the Customer is not in attendance at any nominated premises, the Company may leave any good and the Company shall not be responsible for any claims, damages, costs or expenses arising or resulting there from including any claim that the goods were not delivered.
i) The risk in the Goods passes to the Customer immediately upon delivery.
j) If the delivered Goods are defective or damaged in transit, the Customer must notify the Company within 24 hours of delivery.
a) The Company reserves the right to charge a reasonable fee for storage if the Goods are required to be held by the Company in their factory or on their premises longer than one month beyond the date on the Sales Order, the date the deposit has been received by the Company, or from the date the Goods are received into stock, whichever is the later.
b) If the Goods are required to be held by the Company, the Company reserves the right to store the Goods inside or outside their factory, at the Company’s sole and absolute discretion. The Customer consents to the Goods being stored outside where they will be exposed to external weather conditions which may damage the packaging of the Goods.
7. Australian Consumer Law
a) Except as these terms and conditions specifically state, or as contained in any express warranty provided in relation to the goods or services, theses terms and conditions do not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods or services or any contractual remedy for their failure.
b) If the Customer is a consumer, nothing in these terms and conditions restricts, limits or modifies the Customer’s right or remedies against the Company for failure of a statutory guarantee under the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (ACL).
c) The Company is not liable or in connection with the sale, installation, use of, storage or any other dealings with the goods or services by the Customer or any third party.
d) The Company is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
e) The Customer acknowledges that:
(i) It has not relieved on any service involving skill and judgment, or on any advice, recommendation, information or assistance provided by the company in relation to the goods or services or their use or application.
(ii) It has not made known, either expressly or by implication to the company any purpose for which it requires the goods or services and it has the sole responsibility of satisfying itself that the goods or services are suitable for the use of the Customer.
f) The Company is not liable for failure of adhesives used to fix the Goods.
g) To the extent permissible by law, the company excludes all liability and accepts no responsibility for damage to goods caused by incorrect use, and or cleaning of goods other than as first grade goods are sold with all defects.
h) Nothing in these terms and conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
i) The Company shall not be liable for any incorrect colouring, optical hazing or crazing of goods once the goods have had adhesive or other fixing compounds placed on them.
8. Limitation of Liability
a) In the case of Goods, the Company’s liability for a breach of a condition or warranty implied by Part 3-2 Division 1 of the ACL is limited to any one or more of the following:
(i) The replacement value of the Goods or the supply of equivalent Goods;
(ii) The repair of the Goods;
(iii) The payment of the cost of replacing the Goods or of acquiring equivalent Goods;
(iv) The payment of the cost of having the Goods repaired.
a) Unless otherwise stated, all prices are net, exclusive of Goods and Services Tax (GST).
(b) GST means any goods and services tax, value added tax or other like tax;
(c) GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(a) Payment of all invoices shall be made in full by the Customer thirty (30) days from the last trading day of the month in which the goods were purchased.
(b) The Customer is responsible for payment of all goods or services for any order put in to the Company by the Customer, its employees, agents or contractors.
(c) In the event there is any dispute as to the charge for the goods or services in an invoice or account, the Customer will pay for all other charges appearing on the invoice not in dispute when they fall due, pending an investigation of the charges in dispute.
(d) The Customer agrees that failure to pay on or before the due date in accordance with this clause is a default pursuant to these Terms and Conditions and will result in:
(i) All monies owed by the Customer to the Company on or before the due date becoming immediately due and payable to the Company;
(ii) Interest accruing on all amounts due and payable to the Company at a rate of 1.5 per cent per month from the date due for payment until the date of actual payment.
(iii) The provision of credit to the Customer may be suspended indefinitely at the absolute discretion of the Company.
(iv) Withholding of Goods ordered until overdue payments are paid.
(v) Enforcing any security interest
(e) All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of the Company, are to be paid by the Customer as a debt due and payable under these terms and conditions.
11. Rights in relation to Goods
The Customer agrees that:
(a) The Company retains legal and equitable title in any Goods supplies to the Customer until payment in full for or in connection with the supply of the relevant goods has been received by the Company.
(b) Until such time as title to the goods passes to the Customer, the Customer agrees to store the goods and end products in such a way as the Goods can be recognised as the property of the Company, and to keep separate records of sales of goods or end products the property of the Company
(c) Until such time as title to the goods passes to the Customer, the Customer may convert the goods into other products, but if the goods are so converted and become part of other goods, the Company retains the right to enforce their security in the goods to the value of the goods provided, and trace and receive a portion of the sale proceeds if so relevant.
(d) Risk in the goods shall pass from the Company to the Customer immediately on delivery of the goods to the Customer nominated premises.
(e) The retention of title arrangement described in this clause constitutes the grant of a security interest or a purchase money security interest (PMSI) by the Customer in favour of the Company in respect of all present and after acquired goods supplied to the Customer by the Company.
(f) This clause applies notwithstanding any agreement subsequent to this agreement by which the Company agrees to allow the Customer extended time to pay for the goods beyond that provided in Clause 3(a) (Payment).
(g) Where the Customer sells the goods to a third party, the Customer agrees to hold the proceeds of sale in a separate account on trust for the Company.
(h) The Customer agrees not to sell the goods to a third party without payment for the goods first being made to the Customer.
12. Personal Property Security Act (2009) (Cth) (PPSA).
(a) The terms used in this clause have the meanings given to them in, or by virtue of the Personal Property Securities Act 2009 (Cth) (PPSA).
(b) The Customer grants the Company a security interest or a purchase money security interest (PMSI) in the Goods;
(c) The Customer agrees that any of the Goods or proceeds of sale of the Goods supplied after the date of these Terms of Trade will be supplied subject to: 1. the security interest or PMSI granted in these Trading Terms and Conditions Terms of Trade; and 2.the terms of these Terms and Conditions.
(d) The Customer agrees that the security interest or PMSI has attached or will attach to all goods supplied now or in the future to the Customer when the Customer takes possession of the Goods and that the attachment of the security interest or PMSI has not in any way been deferred or postponed from the date of these Terms and Conditions.
(e) The Customer consents to the Company registering its security interest on the Personal Properties Security Register (PPSR) and agrees to provide all assistance reasonably required by the Company to facilitate registration.
(f) Until such time as title in the goods has passed to the Customer as contemplated by clause 10, the Customer agrees not to in any way assign, charge, lease or otherwise deal with the goods in such a manner as to create, a security interest over, the goods in favour of the Customer or any third party.
(g) the Customer acknowledges that the Company reserves the right to register a financing statement in respect of any Goods supplied by the Company to the Customer under these Terms of Trade and that the cost and expense of registering a financial statement or a financing change statement is to be paid by the Customer.
(h) The Customer must immediately notify the Company if they become aware of any person taking steps to register a financing statement in relation to the goods.
(i) The Customer irrevocably grants to the Company the right to enter their property or premises without notice, and without being in any way liable to the Customer or any third party, if the Company has cause to exercise any of their rights under section 110 of the PPSA, and the Customer agrees to indemnify the Company from any claims made by any third party as a result of that exercise.
(j) Until such time as title has passed to the Customer, the Company may demand the return of the Goods, upon which the Customer must immediately return to the Company those Goods; (k) The Company may retain, sell or otherwise dispose of the Goods on any terms and in any manner it sees fit.
(k) The Company and the Customer agree that this agreement and all related information and document(s) are confidential (Confidential Information) and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by this agreement or required by law. The Company and Customer agree that the Company will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA. This clause does not limit the Company’s right to request information other than under section 275.
(l) The Customer hereby waives any rights the Customer may otherwise have to receive any notice under the PPSA (including notice of verification statement) unless the notice is required by that Act and cannot be excluded.
(m) Unless the goods are used predominantly for personal, domestic or household purposes, the Customer and the Company agree each of the following requirements or rights under the PPSA do not apply to the enforcement of the Company’s security interest in the goods or of this agreement:
a. section 95 (notice of removal of accession), to the extent that it requires the secured party to give notice to the grantor;
b. section 96 (when a person with an interest in the whole may retain an accession);
c. section 118 (enforcing security interests in accordance with land law decisions), to the extent that it allows a secured party to give notice to the grantor;
d. subsection 121(4) (enforcement of liquid assets — notice to grantor);
e. Subsection 123(2)
(notice to guarantor to seize property)
f. section 125 (obligation to dispose of or retain collateral);
g. 129(2)-(3) (obligation to give notice)
h. section 130 (notice of disposal), to the extent that it requires the secured party to give a notice to the grantor;
i. Section 132(1) (statement of account on request from guarantor)
j. Subsection 132(3)(d) (statement of amounts paid to other secured parties)
k. subsection 132(4) (statement of account if no disposal);
l. section 135 (notice of retention);
m. section 142 (redemption of collateral); and
n. section 143 (reinstatement of security agreement).
o. For the purposes of section 115(7) the Company need not comply with sections 132, 137(3), and 157(3).
13. Returned Goods
(a) Except for any provisions to the contrary contained in this agreement, the Company is not under any duty to accept Goods returned by the Customer and will do only do so if the Goods are returned within thirty (30) days of the date of the invoice, are in full boxes, in a resalable condition, in a current line of Goods, and were not on sale at the time of purchase.
(b) If the Company agrees to accept returned Goods from the Customer under para (a) of this clause, the Customer must return the Goods to the Company at the Company’s place of business referred to at the head of these conditions.
(c) A handling charge of twenty per cent (20%) of the purchase price will be charged on any Goods returned to the Company.
(d) Except as when required by the ACL, the Company will not accept returns on Goods which were the subject of a special order.
In the event that:
a) Any money payable to the Company becomes overdue; or
b) In the Company’s opinion the Customer will be unable to meet its payments as they fall due; or
c) The Customer becomes insolvent, convenes a meeting with its creditor or proposes or enters into an arrangement with creditors or makes an assignment for the benefit of its creditors; or d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer then:
(i) The Company shall be entitled to cancel all or any part of any order which remains unperformed;
(ii) All amounts owing to the Company will, whether or not due for payment, become immediately payable; and
(iii) The Company may terminate any contract.
(e) Either party may terminate this agreement if the other party is in material breach of any of its obligations under this agreement and if the breach is capable of remedy fails to remedy the breach for a period of 30 days after receipt of a written notice by the other party requiring rectification of the breach.
If any provision of these Conditions is or becomes invalid, illegal or unenforceable the provision shall so far as possible to read won to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of these terms and conditions shall not in any way be affected or impaired.
16. No Waiver
The failure by the Company to exercise, or any delay in exercising any right, power or privilege available to it under these terms and conditions will not operate as a waiver thereof or preclude any other or further exercise thereof or the exercise of any other right or power.
17. Force Majeure
The Company is not liable for any delay or the failure to perform any obligation in the Customer’s favour arising as a result of any event beyond the Company’s control.
18. Place of contract
The parties submit all disputes arising between them to the courts of the State of Tasmania and any court competent to hear appeals from those courts of first instance.