Westralian General Terms & Conditions of Sale

CREDITS & STOCK RETURN PROCEDURE

The Customer shall only be entitled to a credit on returned goods which are in a new and resalable condition. Merchandise which has been in the Customer’s inventory for more than twelve (12) months is not eligible for credit or replacement. The Customer shall pay to the Seller for all such resalable goods returned, a restocking fee being 10% of the price payable for those goods or a minimum processing fee of $30.00 per order whichever proves to be the greater. Should the returned goods not be in a saleable condition then a further fee shall apply to cover costs of packaging or reworking to bring the goods back to a resalable condition. All freight charges incurred for returned goods shall be borne by the Customer. Credit will not be given until goods are returned to the Seller and inspected by Westralian Quality control for acceptable condition.

The Process required for the Customer to return products for credit or exchange is as follows:

  1. The Customer is required to contact Westralian prior to the return of any products for credit or exchange to inform them of the reason for the return request.

  2. On receipt of the request Westralian will advise the purchaser if the return of products is agreed to and then will issue a product return number to be quoted in all communication and to be placed on the products when returned.

  3. On receipt of the products by Westralian they will be assessed for condition and will be subject to the conditions detailed in the “Returned Stock” section mentioned above and also in item number 14 ‘returned goods section’ stated in the general terms and conditions.

  4. If the returned products are in an acceptable condition to Westralian as detailed above, a credit will be posted to the Customer’s account or in the case of a non-account sale the credit will be refunded in a similar method to the original transaction.

  5. Products cannot be returned for credit or exchange unless all of the aforementioned conditions and processes for return of products are adhered to.

ADDITIONAL TERMS AND CONDITIONS

Clearance Items

  1. Discount only applies to sales of Clearance stock.

  2. Delivery charges are not included in the sale price. An additional charge will be made, if delivery is required.

  3. Your order will be subject to additional freight charges if you order clearance stock items from more than one warehouse.

  4. When ordering discontinued stock items, you will only be able to order the maximum available quantity. Your order will be adjusted down automatically.

  5. No refunds will be given if you have simply changed your mind.

  6. Stock counts are subject to change and variation without notice.

For the purpose of these Terms and Conditions of Sale, the expression ‘Customer’ means the purchaser of goods or any person acting on behalf of and with the authority of the Customer. The ‘Seller’ and ‘Westralian’ means Westralian Washroom Services Pty Ltd, ABN 40 009 378 19 and ‘Goods’ means the goods supplied by the Seller to the Customer under these Terms and Conditions of Sale. ‘Customer’s receiver’ means any person, premises or organization to whom the Customer directs that goods be delivered.

- An order placed by the Customer is deemed to be an order incorporating these Terms and Conditions of Sale (as set out below) notwithstanding any inconsistencies which may appear in the Customer’s order or other documentation provided by or on behalf of the Customer unless otherwise expressly agreed in writing by the Seller.

DEFECTS, WARRANTY & LIABILITY

  1. Subject to any statutory obligations of the Seller under the Australian Consumer Law the following provisions apply:

    1. The Seller’s liability for goods manufactured by it is limited to making good any defects by repairing the defects or at the Seller’s option by replacement, provided that:

      1. Defects have arisen solely from faulty materials or workmanship;

      2. The Goods have not received maltreatment, inattention or interference;

      3. The seals of any kind on the Goods remain unbroken; and

The Customer, within twenty four (24) hours of delivery of the Goods (time being of the essence), notifies the Seller in writing of any alleged defect and provides the Seller with a sample of the goods the subject of the defect. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defector issue.

    1. The Seller’s liability for a breach of a condition or warranty implied by Pt 3–2 Div 1 of the Australian Consumer Law is limited to:

      1. In the case of goods, any one or more of the following:

        1. The replacement of the goods or the supply of equivalent Goods;

        2. The repair of the Goods;

        3. The payment of the cost of replacing the Goods or of acquiring equivalent Goods;

        4. The payment of the cost of having the Goods repaired;

      2. In the case of services:

        1. The supplying of the services again;

        2. The payment of the cost of having the services supplied again.

  1. The Seller’s liability under s274 of the Australian Consumer Law is expressly limited to a liability to pay the Customer an amount equal to:

    1. The cost of replacing the Goods;

    2. The cost of obtaining equivalent Goods;

    3. The cost of having the Goods repaired, whichever is the lowest amount.

  2. Subject to any statutory obligations of the Seller under the Australian Consumer Law and except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of the Seller’s negligence or in any way whatsoever.

  3. Subject to any statutory obligations under the Australian Consumer Law, any descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of these Terms and Conditions of Sale. Without prejudice to that, any performance figures given by the Seller are estimates only. The Seller shall be under no liability for damages for the goods’ failure to attain such figures unless specifically guaranteed in writing and any such written guarantee shall be subject to the recognised tolerances applicable to such figures.

DELIVERY

The Seller will take no responsibility what so ever for damage to the Goods in transit (either cost or replacement) when freight is arranged at the request of the Customer’s or at the request of the Customer’s receiver. Reasonable efforts will be made by the Seller to deliver the Goods to the Customer on the date agreed between the parties, but the Seller shall be under no liability whatsoever should delivery not be made on that date. For deliveries outside the Perth metropolitan area, unless the Customer otherwise specifies, the Seller may use any carrier it deems appropriate. The Customer shall be responsible for the charges of the carrier for all deliveries made outside the Perth metropolitan area, (unless otherwise stated in writing by the Seller). For the purposes of this clause, “Perth metropolitan area” means that area which in the Seller’s opinion is within the metropolitan area of Perth.

The Seller reserves the right to make part deliveries of any order of Goods and each part delivery shall constitute a separatesale of the Goods upon these Terms and Conditions of Sale. A part delivery shall not invalidate the balance of any order by the Customer.

SHORTAGE

Subject to the law, the Customer waives any claim for shortage of any Goods delivered if the Customer has not lodged a written claim with the Seller within 48 hours from the date of receipt of the Goods by the Customer.

RISK

Risk of loss of or damage to the Goods shall pass to the Customer upon delivery of the Goods to the Customer or collection of the goods by the Customer or its agent or in the case of delivery outside the Perth metropolitan area upon delivery to the carrier.

TITLE

  1. Title of any and all Goods held by the Customer shall remain with the Seller and the Seller reserves the right to repossess all Goods and dispose of such Goods in realisation of any outstanding debt until such time as:

    1. Full payment is made for all amounts owing by the Customer to the Seller on account of all goods that have from time to time been supplied by the Seller to the Customer (“Customer’s Total indebtedness”) so that the Customer’s Total Indebtedness is discharged;

    2. The Customer sells the Goods to its customers in accordance with Clause 7

  2. Subject to clause 6 and the PPSA, if the Customer fails to pay any amount of the Customer’s Total Indebtedness when it is due to the Seller, the Seller may without notice and without prejudice to any of its other rights and remedies recover and/or resell the goods or any of them. For that purpose, the Customer:

    1. Authorises the Seller (without prior notice to the Customer) to enter any premises where goods title in which remains in the Seller (“Seller’s Goods) may be situated and to such reasonable force as may be required to enter any such premises and to take possession of the Seller’s Goods;

    2. Undertakes to the Seller to procure the consent of all persons having any interest in the premises where the Seller’s Goods may be situated, to entry of those premises by the Seller

    3. Indemnifies and keeps indemnified the Seller from all claims, actions or suits whatsoever out of or in connection with or in relation to the entry by the Seller to any premises where the Seller’s Goods may be situated;

    4. Shall reimburse the Seller for all expenses incurred by it in recovering and/or reselling the Seller’s Goods

  3. Until title passes to the Customer, the Customer shall separately store the Seller’s Goods in a way that clearly manifest the Seller’s title and is liable to the Seller for any losses caused by failure to do so.

  4. The Customer acknowledges that until the Customer’s Total Indebtedness is discharged, it holds the goods as bailee of the Seller and that a fiduciary relationship exists between them.

  5. Upon default by the Customer under these Terms and Conditions of Sale the Seller has the right to the Goods and the beneficial interest in and conduct of any claims, suits, demands or actions which the Customer may have against any other person arising from the sale of the Goods. The rights contained in this sub-clause shall not be affected by the part performance by the Customer of any of its obligations under these Terms and Conditions of Sale.

  6. If the Customer adds any parts or accessories to the Seller’s Goods, the Seller shall become the owner of those added parts and accessories as security for full payment by the Customer of all monies due to the Seller by the Customer for the Seller’s Goods (as long as the value of the total security is less than 5 times the amount due to the Seller by the Customer) and the term “Seller’s Goods” for the purpose of this sub-clause shall here appropriately be read and construed accordingly.

  7. If the Customer makes new goods or other goods from or with the Seller’s Goods or if the Seller’s Goods become a constituent part of or mixed with other goods, the Seller shall become the owner of those new goods or other goods as security for full payment by the Customer of all monies due to the Seller by the Customer for the Seller’s Goods (as long as the value of the total security is less than 5 times the amount due to the Seller by the Customer), and the term

“Seller’s Goods” for the purpose of this sub-clause shall where appropriately be read and construed accordingly.

PERSONAL PROPERTIES & SECURITIES ACT (“PPSA”)

  1. In this clause:

    1. Financing statement has the meaning given to it by the PPSA;

    2. Financing change statement has the meaning given to it by the PPSA;

    3. Security agreement means the security agreement under the PPSA created between the Seller and Buyer by these terms and conditions;

    4. Security interest has the meaning given to it by the PPSA.

  2. Upon agreeing to these Terms and Conditions of Sale in writing the Customer acknowledges and agrees that these Conditions of Sale:

    1. Constitute a security agreement for the purposes of the PPSA; and

    2. Create a security interest in:

      1. All Goods previously supplied by the Seller to the Customer (if any);

      2. All Goods that will be supplied in the future by the Seller to the Customer.

  3. The Customer undertakes to:

    1. Promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to:

      1. Register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

      2. Register any other document required to be registered by the PPSA;

      3. Correct a defect in a statement referred to in clause 6A.3(a)I or 6A.3(a)II;

    2. Indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;

    3. Not register a financing change statement in respect of a security interest without the prior written consent of the Seller;

    4. Not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Seller; and

    5. Immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.

  4. The Seller and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms and Conditions of Sale.

  5. The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

  6. The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

  7. Unless otherwise agreed to in writing by the Seller, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.

  8. The Customer shall unconditionally ratify any actions taken by the Seller under clauses 6A.3 to 6A.5.

SALE OF GOODS BY CUSTOMER

The Seller authorises the Customer to sell on the Seller’s behalf the Goods or any part of them title in which is retained by the Seller provided such sale is made in the ordinary course of the Customer’s business and is for full value. The Customer shall keep the proceeds from all such sales in a separate identifiable account as the beneficial property of the Seller and shall account to the Seller for such proceeds until such time as the Customer’s Total Indebtedness is discharged.

PRICE

The price of the goods payable by the Customer shall be the price published in the Seller’s current published price list issued, or as negotiated in writing from time to time by the Seller. All pricing quoted excludes G.S.T. unless otherwise stated. The Seller reserves the right to change prices in the current price list without prior notification to the Customer.

CREDIT TERMS FOR 30 DAY ACCOUNTS

Unless otherwise agreed in writing credit terms are as stated below:

  1. At the end of each month the Customer will receive a statement of account, which clearly indicates the total of Customer’s account is in debt for at the end of each month.

  2. At the end of the next month the balance of the statement is payable in full and shall only be treated as being paid once the payment has been received by the Seller.

SHOULD A CUSTOMER NOT COMPLY WITH THESE TERMS THE SELLER RESERVES THE RIGHT TO ACTION ONE OF THE FOLLOWING:

  1. Customer’s account will be put on “Stop Supply”, meaning further orders will not be supplied until payment is made

OR

  1. Customer’s account will be closed.

IF AT ANY TIME THE CREDIT WORTHINESS OF THE CUSTOMER BECOMES IN THE SELLER’S OPINION UNSATISFACTORY, THE SELLER RESERVES THE

RIGHT TO DEMAND IMMEDIATE PAYMENT OF ALL OUTSTANDING AMOUNTS AND MAY CHARGE INTEREST ON ANY OUTSTANDING SUMS AT

COMMONWEALTH BANK MAXIMUM OVERDRAFT RATES.

IMMEDIATE PAYMENT

Notwithstanding these Terms and Conditions of Sale and in particular clause 9, payment shall become due immediately upon the Customer (being a natural person) committing any act of bankruptcy or the Customer (being a company) committing any act which entitles any person to apply to wind up the Customer, or a receiver or receiver and manager of the Customer is appointed.

INTEREST ON OVERDUE AMOUNTS

If the Seller is not paid for any goods on the due date specified in these Terms and Conditions of Sale, without prejudice to any other right or remedy, all outstanding monies shall bear interest of daily balances until paid at a rate of interest per annum equal to the interest rate charged by the Commonwealth Bank of Australia on overdraft accounts for sums up to $50,000 and such money together with all interest shall be recoverable by the Seller from the Customer. For the purposes of these Terms and Conditions of Sale, the term “Customer’s Total Indebtedness” shall be deemed to include all interest payable to this clause.

PLACING OF ORDER & DESPATCH OF GOODS

  1. Orders must be made using Westralian Code Number, as stated in the Pricelist of the Seller or on the Website of the Seller.

  2. The Seller will not accept responsibility for wrongly supplied products where codes are incorrect or not quoted when placing orders, and in particular telephone through orders or hand written faxes, which are sometimes unclear as to the Customer’s intention.

No order may be cancelled except with consent in writing of the Seller and on terms which will indemnify the Seller against all losses.

WAIVER

Failure by the Seller to insist upon strict performance of any part of these Terms and Conditions of Sale shall not be deemed as a waiver of them or of any rights the Seller may have and no express waiver shall be deemed a waiver of any subsequent breach of any part of these conditions of sale.

LAW

All contracts entered into between the parties for the sale of goods upon these Conditions of Sale shall be deemed to be made in the State of Western Australia and the parties agree to submit all disputes arising between them to the courts of that state.

COMPLIANCE

The Customer must comply with all laws, bylaws and statutory and regulating authority applicable to the Customer and in particular without limitation all those relating to the environment, safety, dangerous goods, storage, handling, insurance and sale of goods supplied by the Seller under these Terms and Conditions of Sale.

VARIOUS

  1. Westralian may at any time amend these Terms and Conditions of Sale without notification to Customer. All purchases are subject to the Terms and Conditions of Sale, as amended from time to time, in the version accessible at Westralian website (http://www.Westralian.com.au/) (“Westralian Site”) on the date of placing an order. By placing an order, Customer agrees to be bound by and comply with these Terms and Conditions of Sale without reservation.

  2. Customer’s use of the Westralian Site is regulated by the Westralian Website Disclaimer accessible on the Westralian website.

  3. If any provisions of these Terms and Conditions of Sale shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

  4. If any provisions of these Terms and Conditions of Sale are inconsistent with the PPSA, the PPSA shall prevail to the extent of the inconsistency.

  5. Nothing in these Terms and Conditions of Sale is intended to have the effect of contracting out of the applicable provisions of the Australian Consumer law except to the extent permitted by that law.

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