Terms & Conditions
BACK AT THREE PTY LTD
T/AS MR SHOWBAGS
TERMS AND CONDITIONS OF TRADE
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Definitions
In these Terms:
"Agreement" means any agreement entered into for the provision of goods by Mr Showbags to the Customer;
"Customer" means a person, firm or corporation, jointly and severally if there is more than one, acquiring goods from Mr Showbags;
"Mr Showbags" means Back At Three Pty Ltd trading as Mr Showbags (ABN 68 090 040 896);
"goods" means goods supplied by Mr Showbags to the Customer;
"GST" means the Goods and Services tax as defined in A New Tax System (Goods and Services Tax) Act 1999 as amended; and
"Terms" means these Terms and Conditions of Trade. -
Basis of Agreement and Orders
2.1 Unless otherwise agreed by Mr Showbags in writing, the Terms apply exclusively to every contract for the sale of goods by Mr Showbags to the Customer and cannot be varied or supplanted by any other terms, including the Customer's terms and conditions of purchase (if any).
2.2 Any written quotation provided by Mr Showbags to the Customer concerning the proposed supply of goods is valid for 30 days, is an invitation to treat only, and is subject to the Customer offering to enter into an Agreement and accepting these Terms.
2.3 The Terms may include additional terms in Mr Showbags' quotation.
2.4 The Agreement is accepted by Mr Showbags when Mr Showbags confirms its acceptance of an order from the Customer in writing or electronic means or provides the Customer with the goods.
2.5 Mr Showbags in its absolute discretion may refuse to accept any order.
2.6 It is the Customer's responsibility to provide Mr Showbags with its specific requirements in relation to the goods, including the intended age group and location for distribution of the goods. -
Pricing
3.1 Prices quoted, whether by written quotation or verbally, for the supply of goods exclude GST and any other taxes or duties imposed on or in relation to the goods. In addition to payment of the price of the goods, the Customer must pay any GST and any other taxes or duties imposed on the goods.
3.2 If the Customer requests any variation to the Agreement, Mr Showbags may adjust the price to account for the variation.
3.3 Where there is any change in the costs incurred by Mr Showbags in relation to goods, Mr Showbags may vary its price for the goods to take account of any such change, by notifying the Customer. -
Payment
4.1 Unless otherwise agreed in writing:
- (a) Subject to 4.1(b), payment for the goods must be made within 7 days of the date of Mr Showbags' invoice.
- (b) Mr Showbags reserves the right to require payment in full on or before delivery of the goods.
5.1 If the Customer defaults in payment by the due date of any amount payable to Mr Showbags, then all money which would become payable by the Customer to Mr Showbags at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Mr Showbags may, without prejudice to any other remedy available to it:
- (a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Vic) plus 4 per cent for the period from the due date until the date of payment in full;
- (c) charge the Customer for, and the Customer must indemnify Mr Showbags from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Terms, to recover any goods, or to recover any sum due;
- (d) cease or suspend for such period as Mr Showbags thinks fit, supply of any further goods to the Customer;
- (e) by written notice to the Customer, terminate any Agreement with the Customer so far as unperformed by Mr Showbags;
- without effect on Mr Showbags' accrued rights under any contract.
- (a) where the Customer is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors; or
- (b) where the Customer is a corporation and enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors, or has a liquidator or similar functionary appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
6.1 Until full payment in cleared funds is received by Mr Showbags for all goods supplied by it to the Customer, as well as all other amounts owing to Mr Showbags by the Customer:
- (a) title and property in all goods remain vested in Mr Showbags and do not pass to the Customer;
- (b) the Customer must hold the goods as fiduciary bailee and agent for Mr Showbags;
- (c) the Customer must keep the goods separate from its goods and maintain the Mr Showbags' labelling and packaging;
- (d) the Customer is required to hold the proceeds of any sale of the goods on trust for Mr Showbags in a separate account however failure to do so will not affect the Customer's obligation to deal with the proceeds as trustee;
- (e) the Customer must not destroy, dispose of (other than by sale in the usual course) or damage the goods; and
- (f) Mr Showbags may without notice, enter any premises where it suspects the goods may be and remove them, and for this purpose the Customer irrevocably licences Mr Showbags to enter such premises and also indemnifies Mr Showbags from and against all costs, claims, demands or actions by any party arising from such action.
7.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise will pass to the Customer immediately on the goods being dispatched from Mr Showbags' premises.
7.2 The Customer assumes all risk and liability for loss, damage or injury to persons or to property of the Customer, or third parties arising out of the use or possession of any of the goods sold by Mr Showbags.
8.1 Any period or date for delivery of goods stated by Mr Showbags is intended as an estimate only and is not a contractual commitment. Mr Showbags will use its reasonable endeavours to meet any estimated dates for delivery of the goods.
8.2 A completed drivers manifest or delivery docket whether signed by the driver or by the Customer or its employee or agent will be proof of delivery of goods invoiced.
9.2 The Customer must provide reasonable and proper access to the location specified for delivery.
9.3 The Customer indemnifies Mr Showbags against any loss or damage suffered by Mr Showbags, its sub-contractors or employees as a result of delivery or attempted delivery, except where caused by Mr Showbags' negligence.
10.1 Except as specifically set out herein, or contained in any warranty statement provided with the goods, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the goods, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
10.2 Replacement of the goods is the absolute limit of Mr Showbags' liability howsoever arising under or in connection with the sale, use of, storage or any other dealings with the goods by the Customer or any third party.
10.3 Mr Showbags 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.
10.4 Mr Showbags will not be liable for any loss or damage suffered by the Customer or any third party where Mr Showbags has failed to deliver goods or fails meet any delivery date or cancels or suspends the supply of goods.
10.5 Nothing in the Terms 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 which cannot be excluded, restricted or modified.
11.1 The Customer acknowledges that:
- (a) it has not relied on any service involving skill and judgment, or on any advice, recommendation, information or assistance provided by Mr Showbags in relation to the goods or their use or application.
- (b) it has the sole responsibility of satisfying itself that the goods are suitable for the Customer's use or any contemplated use, whether or not such use is known by Mr Showbags, and that the goods meet with all relevant applicable Standards or regulations.
- (c) to the extent permitted by law, Mr Showbags has made no warranties or representations concerning the suitability of the goods for any age group or location, or that the goods meet with any particular Standards or regulations.
- (d) any description of the goods provided in a quotation or invoice is given by way of identification only and the use of such description does not constitute a contract of sale by description.
12.1 If, through circumstances beyond Mr Showbags' control, Mr Showbags is unable to effect delivery or provide the goods, then Mr Showbags may cancel the Customer's order (even if it has already been accepted) by written notice to the Customer.
12.2 No purported cancellation or suspension of an order or any part of it by the Customer is binding on Mr Showbags after that order has been accepted.
12.3 Notwithstanding clause 12.2, if the Customer cancels the order after acceptance by Mr Showbags, then Mr Showbags will be entitled to damages for breach of contract.
13.1 Mr Showbags will accept excess goods for return and refund up to 20% of the value of the original order placed, provided that:
- (a) the excess goods are returned within 30 days of invoice date;
- (b) the Customer pays all freight charges associated with return of the excess goods; and
- (c) full payment of the original invoice has been received prior to the return of the excess goods by the Customer.
- (a) contain perishables or food products;
- (b) have been specifically produced, imported or acquired to fulfil any contract;
- (c) have been altered in any way; or
- (d) are not in their original condition and packaging.
14.1 The law of Victoria from time to time governs the Terms and the parties agree to the non-exclusive jurisdiction of the courts of Victoria, the Federal Court of Australia, and of courts entitled to hear appeals from those Courts.
14.2 Failure by Mr Showbags to enforce any of these Terms shall not be construed as a waiver of any of Mr Showbags' rights.
14.3 If any of the Terms are unenforceable it shall be read down so as to be enforceable or, if it cannot be so read down, the term shall be severed from these Terms without affecting the enforceability of the remaining terms.
14.4 A notice must be in writing and handed personally or sent by facsimile, email or prepaid mail to the last known address of the addressee. Notices sent by pre-paid post are deemed to be received upon posting. Notices sent by facsimile or email are deemed to be received upon the sender's facsimile or email machine confirming such transmission.
15.1 Mr Showbags is bound by the Privacy Act 1988 and takes steps to ensure that all personal information obtained in connection with the Customer will be appropriately collected, stored, used, disclosed and transferred in accordance with the National Privacy Principles ("NPPs"). Such information may be accessed by request to Mr Showbags in accordance with the Privacy Act.
15.2 Mr Showbags requires that the Customer comply with the NPPs in connection with any personal information supplied to it by Mr Showbags in connection with this Agreement.
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