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GENERAL TERMS AND CONDITIONS OF SALE (“Terms”)

INTERPRETATION

In these  General Terms and Conditions of Sale ("Terms") the “Seller” means Fackelmann Housewares (FMHW Pty Ltd), ABN 89 601 910 776, and its operating divisions.  “Buyer” means the purchaser of the goods sold. These Terms supersede all other terms, conditions and agreements and apply to all future transactions between the Buyer and Seller.

 

APPLICATION

These Terms apply unless special arrangements have been agreed in writing by the Seller’s Management.

 

GENERAL

The following are the terms and conditions of sale for all goods sold by the Seller unless varied in a written quotation in which case these Terms as varied by the Seller's quotation will apply.

 

TERMS OF PAYMENT

  1. The granting of credit to a Buyer shall be at the absolute discretion of the Seller and unless otherwise demanded by the Seller, the Buyer shall make payment of all amounts payable within thirty (30) days after the end of the month of delivery. If the Buyer fails to make payment in accordance with this term, then the Seller shall be entitled to:-

    • a) Require the payment of cash before delivery of any further goods.

    • b) Charge an interest rate of one point seven five percent (1.75%) per month on a compounding basis on all overdue amounts (including late payment charges and amounts other than the price) calculated on a day to day basis on any monies due but unpaid, such interest charge to be computed from the due date for payment AND the parties agree that such interest charge is not a penalty but a true measure of damages incurred by the Seller. Payments received from the Buyer will be credited first against any interest charge and all such interest shall be payable on demand;

    • c) Claim from the Buyer all costs, expenses & charges incurred by the Seller on any account in connection with the Buyer's failure to pay including but not limited to any action taken by the Seller to recover monies or goods from the Buyer including but not limited to mercantile agents' costs & legal costs & disbursements on a solicitor-client basis.

  2. The Buyer shall not be entitled to withhold payment of any account by reason of any account query, dispute or set off.

 

FREIGHT CHARGES/MINIMUM ORDER

Goods will be delivered Free into Store in all capital cities of Australia, provided the value of the original order/shipment is in excess of $500. In all other places freight and transit insurance will be at the expense of the Buyer.

 

SMALL ORDERS

The Seller reserves the right to reject an order under $500.00 in wholesale value. If such an order is accepted, it will be subject to a $25.00 administration surcharge.

 

DUTIES, TAXES, ETC

In addition to the price, Buyer must pay to Seller the amount of any new or additional tax, duty, excise, primage or charge imposed by any authority after the date of Seller’s acceptance of Buyer’s order for the goods up to the date of dispatch of the goods.

 

CLAIMS, RETURNS AND ALLOWANCES

  1. The Seller's Sales Manager or Agent may in his/her absolute discretion agree to accept returns of undamaged goods for credit. Written authorisation from them is necessary before returning goods for credit. 

  2. Claims will not be accepted for short deliveries, damage in transit or faulty merchandise unless notification is received by Seller within fourteen (14) days of delivery to the Buyer’s premises.

  3. Any claims for damaged goods must refer to the official invoice number and date, and state the reason for the claim.

  4. No freight or other charges for goods returned by the Buyer will be accepted by the Company unless authorised. The Seller's nominated carrier must be used if qualified goods are returned.

  5. Acceptance of delivery of returned goods for credit does not signify the Seller's agreement to issue a credit note.  A credit note will be issue only after the goods have been inspected and found to be satisfactory in the reasonable opinion of the Company. In the event that a credit note is not issued, the Buyer will be advised and the goods made available for collection by the Buyer.

  6. Goods returned for credit may be subject to reasonable re-stocking charges.

  7. The following goods cannot be returned for credit under any circumstances (but subject to paragraph 8):

    • a) Any goods specially made or purchased for the Buyer.

    • b) Any goods damaged or altered in any way by the Buyer.

  8. Nothing in paragraphs 1 to 7 under this heading "Claims, returns and allowances" limits any of the Buyer's rights as set out under the heading "Liability" below.

  9. The Seller will not be responsible for pursuing any claim for replacement of any goods as a result of loss or damage resulting from the transport of merchandise via Parcel Post or a Commercial Carrier.

 

PRICE

  1. Prices are those applicable as at the date of despatch ex-warehouse. The prices quoted were current at time of printing and are subject to change without notice.

  2. The list price excludes Goods & Services Tax (GST).  GST will be charged on those goods that attract GST at the applicable rate and the Buyer must pay the GST inclusive amount on the supply at the same time as it pays the purchase price (subject to the Seller issuing a valid tax invoice).

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RISK

Risk in relation to the goods passes to the Buyer when the goods are collected or dispatched from the Seller's premises.

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LIABILITY

  1. Any description of goods in this document is by way of identification only and use of such description will not constitute a sale by description.  The Buyer will take the goods at the Buyer’s own risk as to their corresponding sample (if any) or as to their quality, condition or sufficiency for any purpose.

  2. To the extent permitted by law, all conditions and warranties that are not expressly set out in these Terms are excluded. This does not limit any applicable statutory conditions or warranties provided under the Competition and Consumer Act 2010 (Cth) (or any successor legislation) or equivalent State legislation that cannot be excluded.

  3. If the Goods do not comply with any applicable statutory conditions or warranties, the Seller’s liability to the Buyer is, to the extent permitted by law, limited to:

    • a) replacement of the goods or the supply of equivalent goods, or payment of the cost of replacing the goods or of acquiring equivalent goods; or

    • b) repair of the goods, or payment of the cost of having the goods repaired as determined by the Seller in its discretion. 

  4. Despite any other provision of these Terms and to the extent permitted by law, the maximum liability of the Seller to the Buyer for breach of contract, negligence or otherwise in connection with goods supplied is limited to the amount paid or payable by the Buyer for the relevant goods.

  5. Without limiting paragraph 4, the Seller is not liable for any direct or indirect or consequential loss or damage suffered by the Buyer in respect of goods supplied by the Seller.

 

LEGAL CONSTRUCTION

  1. The construction, validity and performance of these Terms shall be governed by the laws of New South Wales.  The Buyer consents to any proceedings being heard by any appropriate Court in New South Wales applying the laws of New South Wales.

  2. The Buyer agrees that these Terms form a binding agreement between the Seller and the Buyer.

  3. Without limiting paragraph 2, the signing of a manifest of delivery document for goods received by the Buyer will constitute acceptance of these Terms with respect to those goods.

 

TITLE AND PERSONAL PROPERTY SECURITIES ACT​

  1. Title to the goods remains with the Seller and does not pass to the Buyer until the Buyer has paid in full for the goods and all other goods supplied by the Seller to the Buyer ("Other Goods").

  2. If the Buyer sells any goods to third parties, then the Buyer must hold the proceeds of sale on trust for the Seller and must immediately account to the Seller for those proceeds of sale (up to the aggregate amount owing by the Buyer to the Seller for the goods and all Other Goods).

  3. The Buyer acknowledges that paragraphs 1 and 2 create a Security Interest in favour of the Seller for the purposes of the Personal Property Securities Act (Clth) ("PPSA").  The Security Interest attaches to the goods when the goods are collected or dispatched from the Seller's premises. The Seller is entitled to register the Security Interest on the register created under the PPSA.

  4. The Buyer agrees that the Seller is not obliged to give any notice, or to provide copies of any documents or information, under the PPSA (and the Buyer waives any entitlement to these things) unless the notice, document or information is required under the PPSA and cannot be excluded.

  5. The Buyer must immediately upon the Seller's request procure from any person that the Seller reasonably considers to be relevant to its security position such agreements and waivers in relation to the goods and the Other Goods as the Seller may require. 

  6. The Seller may allocate amounts received from the Buyer in any manner the Seller determines, including in any manner required to preserve any Security Interest it has in the goods.

  7. For the purposes of section 275(6) of the PPSA, the parties agree that this Agreement and any information pertaining to the sale of the goods shall be kept confidential by each of them at all times.

  8. The Buyer undertakes that it will not do anything, or allow anything to be done, that might adversely affect the Seller's Security Interest in the goods.

  9. To the extent permitted by law, the parties contract out of sections 95, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143 of the PPSA.

  10. Terms used in paragraphs 1 to 8 that are defined in the PPSA have the same meaning as in the PPSA.

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