KENBROCK TERMS AND CONDITIONS OF SALE
PART 1: DEFINITIONS & INTERPRETATION
“Carrier” means a carrier nominated to take delivery of the Products pursuant to clause 3.2 “Consignment Address” means the delivery address of the Purchaser stated in an Order or otherwise agreed of the Purchaser stated in an Order or otherwise agreed by Kenbrock; “Delivery Time” means: (a) When Products are supplied F.I.S., the time of delivery of the Products to the Consignment Address: and (b) Otherwise when the Products are delivered to a carrier; “F.O.B.” means that all the freight charges and insurance in respect of the products to the Consignment Address will be to the account of the Purchaser. Generally Kenbrock will arrange freight and insurance and make a charge accordingly: “Loss” means any loss, liability, damage, expense or cost whatsoever and includes (without limitation) indirect or consequential loss or damage or loss of profits; “Order” means an order placed with Kenbrock for the supply of Products: “Products” means the products supplied or to be supplied by Kenbrock as specified in an Order accepted by Kenbrock and including, without limitation, made or part made samples; “Purchaser” means any person which enters into a contract with Kenbrock for the purchase of Products including its successors and permitted assigns; “Related Body Corporate” has the same meaning as in the Corporations Law; and “Kenbrock” means, “Kenbrock Flooring Pty. Ltd.
PART 2: FORMATION OF CONTRACT FOR SALE OF PRODUCTS
2.1 Each Order constitutes an offer by the Purchaser to acquire the Products subject to these Terms and Conditions and to the exclusion of any other terms and conditions asserted by the Purchaser. A contract shall be made between Kenbrock and the purchaser for the supply of the Products only when an Order is accepted by Kenbrock in writing, orally or by conduct. 2.2 These Terms and Conditions supersede all previous terms and conditions and may only be varied if authorised in writing on behalf of Kenbrock.
PART 3: DELIVERY AND RISK
3.1 Risk of loss of, or damage to, the Products will pass to the Purchaser on and from the Delivery Time. The Purchaser appoints Kenbrock as its agent to delivery or procure the delivery of the products to the consignment Address stated on the Order. 3.2 Unless otherwise agreed between Kenbrock and the Purchaser, Kenbrock may, in its absolute discretion, select a Carrier to deliver the Products to the Purchaser. 3.3 Any terms as to quantity of Products to be delivered or time of delivery of products agreed between Kenbrock and the Purchaser are not of the essence. Whilst Kenbrock will use its best endeavours to deliver the Products to the Purchaser within the agreed time and at the Consignment Address no liability will arise on the part of Kenbrock in the event that the Products are not so delivered. Further, Kenbrock reserves the right to vary the delivery arrangements agreed between the Purchaser and Kenbrock, where, in the opinion of Kenbrock, it would be impractical to comply with such arrangements. 3.4 Kenbrock may make partial deliveries and invoice each partial delivery separately and the Purchaser cannot reject Products on the basis of partial or late delivery. 3.5 Should the Purchaser require delivery of the Products at an earlier time than agreed between Kenbrock and the Purchaser, Kenbrock will attempt to comply with the Purchaser’s request, however, all additional costs incurred by Kenbrock will be to the Purchaser. 3.6 The Purchaser acknowledges that any pallets used for delivery of Products are held by the Purchaser as bailee. The Purchaser agrees to indemnify Kenbrock for any Loss arising from any pallet not being returned to Kenbrock in good order and condition within twenty eight days of delivery of the Products. Further, the Purchaser agrees to pay a deposit (in an amount determined by Kenbrock) to Kenbrock in respect of such pallets, which will be refunded to the Purchaser upon return of the pallets to Kenbrock in good order and condition. 3.7 If the Purchaser requests, Kenbrock may, in its absolute discretion, arrange for the transfer or hire of pallets to the Purchaser and further, may allow pallets to be exchanged on a one-for-one basis at a depot to be nominated by Kenbrock.
PART 4: INSURANCE
4.1 The Purchaser must maintain adequate insurance cover with a reputable insurer to cover any insurable Loss in respect of Products however caused between the Delivery Time and the time that title in Products passes to the Purchaser, and the Purchaser must produce to Kenbrock upon request certificates of currency relating to such insurance.
PART 5: PRICES AND PAYMENT
5.1 Prices quoted by Kenbrock are open for acceptance by the Purchaser for a period of thirty days and, unless otherwise stated, are based upon F.O.B. However, Kenbrock reserves the right to increase any price quoted to the Purchaser either before or after acceptance of an Order as a result of any increase in production costs. The Purchaser agrees that any price quoted by Kenbrock does not include any costs which are attributable to any special delivery requirements and that such additional costs shall be to the account of the Purchaser. 5.2 If the Purchaser claims exemption from GST, this must be proven to Kenbrock’s satisfaction at the time an Order is made. Otherwise in addition to the price quoted, the Purchaser shall pay GST on the quoted price for the Products. The Purchaser warrants to Kenbrock that a sales tax exemption document furnished to Kenbrock is valid and that its contents and true and correct in all respects. In the event that the exemption document is not valid and/or the contents of such document are not true and correct then the Purchaser agrees to indemnify Kenbrock against all Loss arising from such invalidity or inaccuracy. 5.3 Payment for all Products must be made in the currency invoiced before the end of the month after the date of invoice or otherwise as agreed in writing. Punctual payment is of the essence. 5.4 Interest will be charged on all outstanding amounts. The rate will be the overdraft rate being paid by Kenbrock at the time. 5.5 The customer must not set off against any amount owing by the customer any amount owing or claimed to be owing by Kenbrock.
PART 6: TITLE IN PRODUCTS
6.1 Despite risk in Products passing to the Purchaser from the Delivery time, title in the Products delivered remains with Kenbrock and will not pass to the Purchaser until the Products have been paid for in full and all cheques and other negotiable instruments relating to payment have been cleared. 6.2 Prior to payment in full in cash of the purchase price and any other amounts owing by the Purchaser or any Related Body Corporate to Kenbrock for the Products, the Purchaser may, as fiduciary of Kenbrock, and in the ordinary course of the Purchaser’s business, sell the Products in which case the Purchaser must account to Kenbrock for all proceeds of sale. In addition, the Purchaser must keep a complete record of all s ales of Products. 6.3 The Purchaser grants to Kenbrock an irrevocable licence to enter the Purchaser’s premises (forcibly if necessary) exercisable in the event of a termination event occurring under clause 8.1, which licence permits Kenbrock as its sole option to repossess and remove all or any of the products
PART 7: WARRANTY/LIABILITY OF KENBROCK
7.1 Kenbrock agrees and acknowledges that the Purchaser is entitled to all rights and remedies in respect of Products which the Purchaser has under the Trade Practices Act and Similar State and Territory laws and which cannot be lawfully excluded, restricted or modified. These Terms and Conditions do not purport to, and do not have the effect of, excluding, restricting or modifying the exercise of any such right or remedy or the liability of Kenbrock in respect of any such right or remedy. 7.2 The Purchaser does not have any rights or remedies in respect of Products other than the rights and remedies expressly provided for in these Terms and Conditions or agreed and acknowledged by Kenbrock in these Terms and Conditions. 7.3 Subject always to clauses 7.1 and 7.4: (1) All conditions, warranties and guarantees other than those expressly provided for those Terms and Conditions or agreed and acknowledged by Kenbrock in these Terms and Conditions are excluded to the fullest extent permitted by law; and (b) Kenbrock will not be liable to the Purchaser for any Loss caused (in whole or in part) by or arising out of any use of the Products or any defect in the Products. 7.4 Where the Purchaser is a consumer under the Trade Practices Act or similar State and Territory laws and Products supplied or services produced to the Purchaser are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then unless the Purchaser establishes that reliance on this provision would not be fair and reasonable, the liability for a breach of a condition or warranty implied into these Terms and Conditions by Trade Practices Act or by any similar State or Territory laws (other than a condition implied by Section 69 of the Trade Practices Act or by the equivalent provisions of any similar State or Territory laws) is limited to the replacement of the Products or the supply or equivalent products. 7.5 The Purchaser acknowledges that it has not relied upon any representation made by Kenbrock which has not been stated expressly in these Terms and Conditions or upon any descriptions or illustrations or specifications contained in any document produced by Kenbrock or supplied to the Purchaser. 7.6 Samples and Warranties: due to variations in colour from batch to batch, no warranty or guarantee is given by Kenbrock to the Purchaser that the goods shall correspond in colour or texture with any sample, display, or goods previously sold or displayed. Kenbrock shall not be liable for any claim, loss or expense (whether direct or indirect) which is sustained or incurred by the buyer by reason of any variation in colour of the goods sold.
PART 8: TERMINATION
8.1 Kenbrock shall be entitled to terminate any Order with the Purchaser or revoke any credit terms granted if the Purchaser fails to punctually pay monies due to Kenbrock, has any security enforced against it, commits an act of bankruptcy or being a company, passes a resolution for winding up (except if the purposes of reconstruction) or a court makes an order winding up the company or if Kenbrock notifies the Purchaser that it is in financial difficulties. 8.2 Upon the occurrence of a termination event referred to in clause 8.1 Kenbrock reserves the right to cancel an Order with the Purchaser (to extent that the Order remains unperformed) in whole or part without liability attaching to Kenbrock, stop any products in transit and dispose of the Products produced for the Purchaser to a third party and all monies owing to Kenbrock in respect of any Order shall be immediately payable. 8.3 Termination is without prejudice to any right or obligation which may have accrued prior to termination.
PART 9: CLAIMS AND DISPUTES
9.1 Any claims as to quality or quantity of Products supplied must be made within seven days of delivery of the Products to the Consignment Address. In the event of a dispute between the Purchaser and Kenbrock relating to either the production or delivery of the Products the Purchaser agrees to pay Kenbrock all such amounts owing to Kenbrock by the Purchaser until such time as the dispute is resolved. 9.2 Where a product is sold at a reduced price due to it being a “seemed”, “faulty”, “damaged”, “discontinued” or similar, no further price reduction or claim can be made.
PART 10: GOODS RETURNED
10.1 Goods returned will not be accepted unless prior notification is given in writing and consent given by Kenbrock. 10.2 Return of resalable goods after 30 days will be at the Company’s discretion and subject to a 10% handling charge.
PART 11: FORCE MAJEURE
11.1 Kenbrock will not be liable for any loss incurred as a result of delay or failure to meet an accepted Order or to observe any of these Terms and Conditions (other than an obligation to pay money) due to an event of force majeure, being any cause or circumstances beyond Kenbrock’s control, including but not limited to any failure or delay in performance caused by any strikes, lock-outs, labour disputes, fires, acts of God or public enemy, malicious or accidental damage, delays in transport, breakdowns in machinery or restrictions or prohibitions by any government or semigovernment authorities or embargoes. 11.2 During the continuance of an event of force majeure affecting Kenbrock, its obligations hereunder shall be suspended, and will resume as soon as possible after the cause or circumstances has ceased to have effect.
PART 12: SEVERABILITY
12.1 If any of these Terms and Conditions infringes any law in Australia it must be read down so that it does not infringe that law, otherwise it will be deemed void and severable.
PART 13: ASSIGNMENT
13.1 The Purchaser must not assign charge or otherwise dispose of any of the burdens of any contract with Kenbrock without the prior written consent of Kenbrock.
PART 14: NOTICES
14.1 All notices to be given under these Terms and Conditions shall be in English and in writing and may be given to the other party by hand delivery, prepaid post, or facsimile addressed to other party at its last known address.
PART 15: GOVERNING LAW
15.1 These Terms and Conditions are governed and must be construed in accordance with the laws of Victoria and the Purchaser hereby agrees to submit to the exclusive jurisdiction of the courts of Victoria and any court of appeal there from.