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To the fullest extent legally possible all dealings between Fire Containment and any Customer relating to any products [“Products”] and/or services are
1. Payments to be made by cash, cheque, bank cheque or EFTPOS and without deduction unless otherwise agreed.
2. Interest will be charged on overdue accounts at the rate prescribed under the Penalty Interest Rates Act plus 2%.
3. Precedence: Even if Fire Containment grants any credit facility and/or time to pay:
a) property in Products shall not pass to the customer until payment in full and all monies owed to Fire Containment and Fire Containment reserves the right to take possession and dispose of Products as it sees fit at any time until full payment is received;
b) the Customer grants permission to Fire Containment to enter any property to recover Products and with such force necessary;
c) the Customer agrees that a certificate purporting to be signed by an officer of Fire Containment identifying Products as unpaid for shall be conclusive evidence that the Products have not been paid for and of Fire Containment’s title to those Products;
d) upon sale or disposition of any Products prior to full payment the Customer agrees to deposit all proceeds in a separate bank account, not mix such proceeds with any other monies and account to Fire Containment for the same as fiduciary and bailee;
e) without derogating from Fire Containment’s rights as a creditor of the Customer or arising under these Terms if Products are used in any construction, building, fabrication, and/or manufacturing process [“the Process”] which results in an entitlement of the Customer to receive money from any other person the Customer agrees to hold such part of any monies received by the Customer (or the corresponding book debt owed to the Customer in respect of those monies) as is equivalent to the value of any Products used in the Process as invoiced to the Customer by Fire Containment UPON TRUST for Fire Containment until payment in full for those Products and all monies owed to Fire Containment;
f) Products shall be deemed to be dealt with by the Customer on a “first in first out” basis at all times; and g) nothing in this clause is intended to create a charge over any Products and this clause shall be read down to the extent necessary to avoid any charge.
4. Limitation of Liability: The Customer agrees:
a) to limit any claim it makes to the cost of replacement of Products or of acquiring equivalent products;
b) that Fire Containment shall not be liable for any loss expense arising after seven days from delivery (or at all once Products have been unpacked, fixed, and/or otherwise used or applied) after which there shall be deemed to be unqualified acceptance;
c) that Fire Containment shall not be liable for any contingent, consequential, direct, indirect, special or punitive damages whether due to negligence or otherwise and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly; and
d) that no other term, condition, agreement, warranty, representation and/or understanding whether expressed or implied, in any way extending to, otherwise relating to or binding upon Fire Containment other than these Terms is made or given by or on behalf of Fire Containment other than by these Terms.
5. Exclusions: The Customer agrees that:
a) no dealing between Fire Containment and the Customer shall be or be deemed to be a sale by sample;
b) the Customer shall rely on its own knowledge and expertise in selecting Products for any purpose and any advice or assistance given for on behalf of Fire Containment shall be accepted at the Customer’s risk and shall not be deemed to have been given as expert or adviser nor to have been relied upon: and
c) Products are sold subject to each and every manufacturer’s trading terms and conditions and are protected by each and every manufacturer's warranty.
6. Cancellations and Returns: The Customer agrees that:
a) the Customer shall at no time cancel the whole or part of any order placed without Fire Containment's prior approval;
b) the Customer shall not return Products without Fire Containment's prior written approval and if Products are not in brand new and unused condition with undamaged packaging and if three weeks or more have passed since the earliest delivery date;
c) Fire Containment may otherwise elect to take back Products in saleable condition on such terms as Fire Containment considers to be reasonable;
d) the Customer shall in all cases pay to Fire Containment a restocking fee of 15% of the gross invoice value of all returns;
e) notwithstanding other provisions of these Terms the Customer shall not return Products without first providing to Fire Containment an original invoice as proof of purchase; and
f) notwithstanding any other provisions of these Terms the Customer shall not return any Products which have been custom made, custom cut, custom processed or custom acquired.
7. Orders: The Customer agrees that:
a) each order it places shall be deemed to include a representation that it is solvent and able to pay all of its debts as and when they fall due; and
b) when any order is placed the Customer shall inform Fire Containment of any facts which might reasonably affect any decision to accept the order and/or grant credit and that any failure to do so shall be deemed to create and constitute an inequality of bargaining position, the taking of an unfair advantage of Fire Containment and to be unconscionable, misleading and deceptive.
8. Minimum Invoice Policy and Purchase Price: The Customer agrees that:
a) the Customer shall at all times and in all respects comply with Fire Containment's minimum invoice policy as may at any time and from time to lime apply on such terms as Fire Containment considers to be reasonable; and
b) all sales are otherwise made by Fire Containment at its ruling price at the time of delivery and on such other terms as Fire Containment considers to be reasonable.
a) Fire Containment accepts no responsibility or duty to deliver but may elect to arrange delivery at its discretion and without liability and at the Customer's cost and risk in all things;
b) Fire Containment shall not be liable for delay, failure or inability to deliver;
c) Products shall be deemed to be delivered as soon as they are ready for delivery at which risk will be deemed to have passed to the Customer; and
d) Fire Containment may charge for frustrated delivery to cover Fire Containment's reasonable expenses.
10. Other Terms and Conditions: No terms and conditions sought to be imposed by the Customer upon Fire Containment shall apply.
11. Recovery Costs: The Customer shall pay all costs and expenses incurred by Fire Containment and/or its agents in respect of the Customer whether relating to any debt, possession of Products and/or otherwise.
12. Customer Restructure: The Customer shall notify Fire Containment in writing of any change in its structure and/or management including any change in director, shareholder and/or management and/or any change in partnership or trusteeship within seven days of the date of any such change.
13. Jurisdiction: The Customer agrees that all contracts made with Fire Containment shall be deemed to be made in the State nominated by Fire Containment and the Customer agrees to submit to the jurisdiction of the appropriate Court nominated by Fire Containment in the capacity of that State. If no State is nominated then New South Wales shall be deemed to be the nominated State.
14. Credit Limit: The grant of any credit facility or nomination of any credit limit is an indication only of Fire Containment's intention at the time. Fire Containment may vary and/or withdraw any credit facility at any time at its discretion and without any liability to the Customer or any other party.
15. Security for Payment: The Customer agrees upon request to charge in favour of Fire Containment with payment of all monies owing to Fire Containment in such form as Fire Containment requires:
(i) by way of a fixed charge all of the Customer’s books of account, financial records, goodwill, documents of title and current and later acquired real property and intellectual property; and
(ii) by way of a floating charge the whole of the Customer's other undertakings, property and assets.
16. Forward order: The Customer agrees:
a) to pay for so much of any forward order as is from time to time invoiced by Fire Containment;
b) that no delay or failure to fulfill any part of such order shall entitle any cancellation or variation of any order or delay or reduce any payment; and
c) to pay any demurrage and/or other costs and expenses of Fire Containment in handling and/or holding Products once ready for delivery.
17. Force Majeur: Fire Containment shall not be or be deemed to be in default or breach of any contract as a result of Force Majeur. Force Majeur shall include any cause beyond the reasonable control of Fire Containment including strikes and lockouts.
18. Attornment: For the purpose of giving effect to the Customer's obligations under these Terms (in particular clause 15. of these Terms) the Customer hereby irrevocably appoints the National Credit Manager (or like equivalent) for the time being of Fire Containment as the Customer’s attorney in all things.
19. Disputes: The Customer agrees to pay into an interest-bearing trust account in the joint names of Fire Containment and the Customer any amount claimed by Fire Containment as a condition precedent to any dispute by the Customer of any such claim on the basis that upon resolution of the dispute the trust fund and any interest shall be dispersed according to the resolution. This clause shall operate as a bar to any defence or claim by the Customer until fully complied with.
20. Abnormal Payments: The Customer agrees to pay an administration fee of 2% (calculated on the amount paid) on any payment which is made other than as provided in clause 1. of these Terms which fee is agreed as the liquidated cost of processing such abnormal payments.
21. Defaults: Upon default or breach of these Terms by the Customer Fire Containment may inter alia retain all monies paid, cease further deliveries, recover from the Customer any loss of profits arising and/or at its election take immediate possession of Products not paid for without prejudice lo any other rights Fire Containment may have and without Fire Containment being liable in any way to any person.
22. Severability: Any part of these Terms being a whole or part of a clause shall be capable of severance without affecting any other part of these Terms.
23. Goods and Services tax [GST]: The Customer agrees to pay prices adjusted in accordance with ACCC Guidelines to take into account GST.
24. Warranty Policy: No warranty is given where Fire Containment is not the manufacturer or fabricator of Products other than the warranty offered by the manufacturer or fabricator. Where Fire Containment is or might be deemed to be a manufacturer or fabricator then the Fire Containment Standard Warranty applies for the period applicable to specific Products. Details of the Fire Containment Standard Warranty and the schedule of periods applicable are available upon request from Fire Containment's Head office at 26A Ferndell Street, South Granville NSW 2142 Australia.
25. Suitability for Purpose: The Customer acknowledges:
a) having relied upon The Customers own skill, knowledge and judgment in selecting any equipment, design or installation.
b) Fire Containment shall not be liable for any inaccuracies in any drawings, specifications or other information supplied to it by the Customer. In particular Fire Containment will not be responsible for or in any respect of any over supply or under supply of goods resulting from its inaccurate estimates of goods required where based wholly or partly on information supplied by the Customer;
c) technical advise and information is provided to the best of our knowledge and belief. Fire Containment is not responsible if recipients of test reports, assessments, or literature misinterpret the contents and wrongly use products based on those misinterpretations. No liability is accepted for error omissions in any of Fire Containment’s published documents;
d) Fire Containment reserves the right to change Product specification without notice;
e) this contract does not permit the Customer to manufacture, or to license other manufacturers to incorporate Fire Containment’s products into systems, for which Fire Containment owns the intellectual property, other than that agreed (in writing);
f) the Customer is responsible for ensuring products are appropriate for their intended purpose. If unsure, the Customer can contact Fire Containment and request further information;
g) technical documents (drawings, calculations, construction suggestions, etc.) and samples shall remain the property of Fire Containment. In the case that goods are not transacted, any work performed by the seller shall be compensated for, in an appropriate way by the buyer if use is made of the results of such work; and
h) samples and patterns shall be deemed to be approximate examples of quality, dimensions and colour. They shall not, however, be deemed a guarantee of certain properties, which shall be the subject of an express agreement.
26. Credit Information: The Customer irrevocably authorises Fire Containment and its servants and agents to make sure enquiries as may be deemed necessary to investigate the credit worthiness of the customer at any time including enquiries with persons nominated as trade references, bankers of the Customer and any credit provider or credit reporting agency and including personal credit and Customer credit information [“the Sources”]. The Customer by this clause authorises the Sources to disclose to Fire Containment all information concerning the Customer which is in the Sources’ possession. The Customer agrees that all relevant trading information arising from any dealings between the Customer and Fire Containment may be disclosed to any interested person.
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