TERMS AND CONDITIONS OF TRADE
The following terms and conditions ("Terms and Conditions of Trade") will apply to all transactions involving trade with Coffs Electrical Appliance Service ("CEAS") (A.B.N. 22 747 143 929) and it's related entities (collectively and separately, "Coffs Electrical Appliance Service"). Terms and Conditions of Trade are effective from the 1st of July 2007 and are subject to change in which case a new set of terms and conditions of trade will be sent by CEAS to the Customer ("New Terms").The New Terms will be effective 14 days after CEAS notifies the Customer in writing.
1. DEFINITIONS
"Customer/s" includes individuals, companies, wholesalers, retailers, buyers, selling agents and any party / entity that acquires Goods or Services from CEAS or its agents, or is distributed by them.
"Goods" or "Products" or "Services" means all goods or products or services distributed and/or performed by CEAS or it's consultants and agents to the Customer.
"G.S.T" means Goods and Service Tax as defined in A New Tax System (Goods and Services Tax) Act 1999.
"related entities" has the same meaning as in the Corporations Act 2001 (Cth).
2. CREDIT
2.1 Any Customer wishing to trade with CEAS on any form of credit must fully read and agree to these Terms and
Conditions of Trade for CEAS, and complete the application for credit form used by CEAS from time to time in a
true and accurate way and return it to CEAS.
2.2 CEAS may agree to provide credit or may decline to provide credit to the applicant Company without reasons.
2.3 All financial and other information provided by the Customer to CEAS must be fully accurate and up to date and
the Customer acknowledges confirms and agrees that CEAS will rely upon all information provided to it. CEAS is
authorised to make all enquiries about the Customer in relation to their application for credit and their continued
request for credit from time to time.
2.4 Any Customer who is a corporation agrees that its' directors and or shareholders may, at CEAS unfettered
discretion, be required to guarantee the purchase of any Goods and/or Services from CEAS and agrees to provide
such a guarantee if the Customer executes the relevant application for credit form used by CEAS from time to
time.
3. PRICES
3.1 Prices for the purchase of Goods and/or Services are those as determined from time to time by CEAS.
3.2 Prices and, where applicable, discount, excise and other taxes and duties (including but not limited to GST) that
are charged to the Customer are those that apply on the date of despatch and / or collection of the Goods and/or
Services from CEAS to the Customer.
4. ACCOUNTS
4.1 All invoices are due and payable in full by the Customer in accordance with CEAS payment terms as advised from time to time and / or which are printed on its monthly statements to Customers who have a line of credit with
CEAS, save that the Customer may deduct from its payment of an outstanding invoice the value of a credit note (if
any) issued by CEAS.
4.2 The Customer shall not deduct any sum for a promotional claim or discount passed onto a third party by it. CEAS agrees to promptly process any claim made by a Customer for such a deduction and to promptly settle any claim approved by it in part or in full.
4.3 Any credit card fees or bank charges associated with any payment by the Customer to CEAS for Goods and/or
Services will be charged to the Customer in addition to the cost of the Goods and/or Services as appears on the
invoice.
4.4 Notwithstanding any provision of these Terms and Conditions of Trade to the contrary and notwithstanding that
any period of credit previously granted by CEAS may not have expired, all amounts payable to CEAS in respect of
any Goods and/or Services supplied by it to the Customer shall be immediately due and payable if:-
4.4.1 CEAS makes demand in writing to the Customer that such amounts be paid forthwith; or,
4.4.2 The Customer commits any breach of these Terms and Conditions of Trade, or a credit applicant
breaches any terms of its application for credit with CEAS; or
4.4.3 The Customer offers to make any arrangement with its creditors; or
4.4.4 The Customer makes default in any payment or is unable or states that it is unable to pay its debts as
and when they fall due;
4.4.5 The Customer being an individual commits an act of bankruptcy or has a controller or trustee appointed
in respect of the Customer's estate or any of the Customer's property or assets;
4.4.6 The Customer being a company passes a resolution for its winding up or enters into liquidation or has an
application for winding up filed against it;
4.4.7 A receiver, receiver and manager, controller or voluntary administrator or provisional liquidator is
appointed over any part of the property or assets of the Customer;
4.4.8 The Customer experiences any analogous event having substantially similar effect to any of the events
specified above.
4.5 Disruption to supply (without liability to CEAS) will occur if the Customer's account is overdue at any time whether in whole or part or the credit limit is exceeded. In this case, the account may be placed on hold at the sole and unfettered discretion of CEAS. Any acceptance by CEAS of payment or part payment by the Customer shall not prejudice CEAS rights in relation to recovery of any other unpaid monies owing by the Customer to CEAS.
4.6 The Customer is liable for all GST on the Goods and/or Services.
5. INTEREST
5.1 Interest on the daily balance of overdue accounts will be charged to the Customer by CEAS at the rate 4% higher than the rate of interest prescribed by the Uniform Civil Procedure Rules 2005 from time to time for its overdue accounts or that portion of the Customer's account that remains. No demand or notice to the Customer by CEAS shall be required.
5.2 Interest shall accrue and be payable immediately on the invoiced amount if payment is not received by the due
date and, at the option of CEAS in its absolute discretion, may be capitalised monthly.
5.3 Interest on overdue accounts shall not merge with interest recoverable under a judgment in respect of an action
for any overdue account monies.
6. COSTS AND EXPENSES
6.1 The Customer shall be liable for and shall pay to CEAS on demand, all costs and expenses incurred or charged to CEAS (in the case of legal costs on a full indemnity basis) as a result of attempts and/or actual recovery of any
overdue payment or interest (including costs charged to CEAS upon the lodgement of an overdue account with a
mercantile collection agency) and of the actual enforcement of any rights or powers of CEAS in relation to the
Goods and/or Services or any amounts owing by the Customer to CEAS.
6.2 Without limiting the operation of clause 6.1 above, the Customer shall be liable for any bank fees incurred by
CEAS for each dishonoured cheque together with CEAS's administration fee of $21.00.
7. OWNERSHIP
7.1 Ownership in Goods and/or Services supplied by CEAS shall remain with CEAS until the Customer has paid
CEAS in full the purchase price and/or service fee and any interest owed for such Goods and/or Services and all
other sums whatsoever due to CEAS.
7.2 Payment is not deemed to have occurred until funds are cleared in CEAS account.
7.3 Pending payment the following conditions shall apply to the Goods and/or Services:
7.3.1 The Customer acknowledges that until ownership in and of the Goods and/or Services passes to the
Customer in accordance with this clause, the Customer holds the Goods and/or Services or any such
new product as created by the Customer using the Goods and/or Services, as a bailee of CEAS and that
a fiduciary relationship exists between the Customer and CEAS whereby the Customer holds the Goods
and/or Service and / or any other proceeds, rights and claims to the Goods and/or Services, or any new
product created by the Customer using the Goods and/or Services, in a fiduciary capacity for CEAS.
7.3.2 The Customer may sell the Goods and/or Services or any new product created using the Goods and/or
Services in the ordinary course of business but shall hold the proceeds of such sale or sales in a fiduciary
capacity for and to the account of CEAS until the Customer has paid all sums whatsoever due to CEAS.
The Customer shall take all steps necessary to keep such proceeds separate from any other monies, and
to pay over such proceeds to CEAS to the extent necessary to discharge in full the Customer's
indebtedness to CEAS.
7.4 In the event that the Customer mixes the Goods and/or Services with any other product or goods, or otherwise
deals with the Goods and/or Services in any manner which results in extinguishing CEAS' ownership of the
Goods, the Customer agrees:
7.4.1 To keep monies not less than the value of the affected Goods and/or Services and not greater than the
total monies owed to CEAS by the Customer from time to time on trust for CEAS, such monies to be held
in trust from the date that CEAS' title in the Goods and/or Services is affected or from when the
Customer surrenders custody over the Goods and/or Services to a third party, which ever occurs first in
time; and
7.4.2 To make timely payment to CEAS upon such terms as are contained in clauses 4 and 5 of these Terms
and Conditions of Trade.
7.5 If ownership in and of the Goods and/or Services has not passed to the Customer in accordance with this clause, the Customer's implied right to sell the Goods and/or Services shall immediately terminate upon the happening of any of the following events:
7.5.1 the Customer makes default in any payment or is unable or states that it is unable to pay its debts as and
when they fall due;
7.5.2 The Customer being an individual commits an act of bankruptcy or has a controller or trustee appointed
in respect of the Customer's estate or any of the Customer's property or assets;
7.5.3 the Customer being a company passes a resolution for its winding up or enters into liquidation or has an
application for winding up filed against it;
7.5.4 a receiver, receiver and manager, voluntary liquidator, controller or voluntary administrator is appointed
over any part of the property or assets of the Customer ;
7.5.5 the Customer experiences any analogous event having substantially similar effect to any of the events
specified above.
7.6 If CEAS, for whatever reason, ceases to grant credit to the Customer but continues to supply Goods and/or
Services on the basis that cash equal to or greater than their sale price is paid at the time of or prior to delivery of
the Goods and/or Services, CEAS may at its option (and without notice to the Customer) apply all or any part of
the cash so paid in or towards payment of any amount outstanding for Goods and/or Services supplied to the
Customer. In that event, the payment by the Customer shall be deemed to be in respect of such Goods and/or
Services previously supplied and the provisions of clauses 6 and 7 shall apply in all respects to the Goods and/or
Services delivered at the time such cash payment is made on the basis that such Goods and/or Services are
being supplied on credit.
8. BREACH BY CUSTOMER
8.1 In the event that the Customer fails to make payment to CEAS in accordance with these Terms and Conditions of Trade, or if the Customer is a company which has made an application for and been granted a line of credit with
CEAS and commits any breach of the terms of that credit application with CEAS, then CEAS may revoke the right
of the Customer to sell, dispose of, or in any way deal with or use the Goods and/or Services, and request the
Customer to deliver immediately any Goods and/or Services in its possession or under its control directly to CEAS
or take possession of the Goods and/or Services from the Customer in whatever manner it might think fit including
but not limited to holding a lien over any item whatsoever of the Customer's relating to the Services provided by
CEAS and in the possession from time to time of CEAS at the time of the Breach by the Customer (without
prejudice to any of CEAS other rights or remedies).
8.2 In the event of non-payment by the Customer to CEAS, or if an application for the winding up of the Customer is
issued, or if the Customer is placed into administration, liquidation or official management or if a receiver, manager
or agent in possession is appointed, then:
8.2.1 The Customer expressly and irrevocably authorises CEAS to enter the premises of the Customer and
remove any Goods and/or Services that are owned by CEAS equal to but not in excess of all monies
owing at any given time to CEAS by the Customer;
8.2.2 In the event that legal proceedings are instituted for the recovery of monies held in trust in accordance
with clause 7 of these Terms and Conditions of Trade, the Customer irrevocably acknowledges the
existence of monies held on trust as described in these Terms and Conditions of Trade.
9. DELIVERY
9.1 Any and all risk in the Goods and/or Services shall pass to the Customer and the Customer shall carry the
responsibility for any loss arising from damage to the Goods and/or Services to which CEAS retains title
howsoever caused, effective from:
9.1.1 when CEAS delivers the Goods and/or Services, from such time as the Goods and/or Services arrive at
the agreed delivery address as designated by the Customer; or
9.1.2 where the Customer otherwise takes possession or causes another (whether an employee, contractor or
independent carrier) to take possession of the Goods and/or Services, then as from the time the Goods
and/or Services leave the custody of CEAS.
9.2 CEAS will endeavour to fulfil the Customer's orders and comply with the Customer's delivery instructions, but shall not be liable to the Customer if it is unable to supply all or part of the Goods and/or Services ordered or for any
delay in the delivery of the Goods and/or Services.
10. CLAIMS
10.1 A credit will be allowed on defective and/or damaged Goods and/or Services while in CEAS custody for any
amount that is deemed valid by CEAS:-
10.1.1 if a claim supported by CEAS' invoice/delivery note is made in writing within 7 business days of the
delivery date and the Customer, if required to do so by CEAS, produces to CEAS the original cases (if
applicable) and packaging (if applicable) of all defective Goods and/or Services as evidence that the
Goods and/or Services were supplied by CEAS, and where applicable, damaged whilst in the custody of
CEAS; and
10.1.2 if the claim relates to defective Goods and/or Services, the Customer must also notify CEAS as soon as
is reasonably possible after the discovery of the alleged defect and allow CEAS an opportunity to inspect
and/or test the Goods and/or Services for defects.
11. ACQUIESCENCE
Release, waiver or acquiescence by CEAS of any one or more of these conditions shall not be deemed to be a
permanent variation of that condition, and nor shall it affect any other condition as contained in these Terms and
Conditions of Trade.
12. EXCLUSIONS AND WARRANTIES
12.1 No failure or delay in the part of either of the parties to enforce at any time any of the provisions of these Terms and Conditions of Trade shall be construed as a waiver of that right under these Terms and Conditions of Trade.
12.2 If any term, clause or provision of these Terms and Conditions of Trade or part thereof shall be or be deemed or judged to be invalid for any reason, such invalidity shall not affect the validity or operation of any other term,
clause or provision of these Terms, except to the extent necessary to give effect to such invalidity.
12.3 Any provision of these Terms and Conditions of Trade which is illegal or unenforceable shall be ineffective to the extent of such illegality, voidness or unenforceability without invalidating the remaining provisions.
12.4 CEAS expressly excludes all liability to the Customer, save that in the event of a breach by CEAS of:-
12.2.1 any warranties or terms implied into this agreement by legislation (such as the Trade Practices Act); and/or
12.2.2 any breach of contract, tort or otherwise in respect of the goods and/or services or the supply of the goods
and/or services; then CEAS liability shall be limited to the amount of the purchase price of the Goods and/or service fee charged for the Services.
13. GOVERNING LAW
These conditions and any variation of these conditions and any dispute that may arise shall be governed and
construed in accordance with the Law of New South Wales.
