Terms of Sale
Ankermann Pty Ltd ("Ankermann")
These are the entire Terms and Conditions of Sale of all goods merchandise and services ("the Goods") supplied by Ankermann Pty. Ltd. (ABN 29 137 930 762) hereafter referred to as "ANKERMANN" to any person, firm or company placing an order with ANKERMANN for the purchase of any Goods ("the Customer"). Except as otherwise expressly agreed upon in writing between a duly authorised officer of ANKERMANN and the Customer, these Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear on any order form or other document issued by any Customer.1 GENERAL
All orders placed with ANKERMANN shall only be accepted subject to these Terms and Conditions. ANKERMANN may at any time, and from time to time alter these Terms and Conditions of Sale and such altered Terms and Conditions of Sale shall apply after notification by ANKERMANN to the Customer.2 PRICES
All prices shall be those referred to in ANKERMANN's price lists and/or arrangements current at the date of invoice and prices shall be subject to change without notice.3 GST
The Customer must pay to the Supplier any amount, which the Supplier is required to pay on account of any GST as a consequence of any supply made or deemed to be made in connection with this agreement. The GST amount must be calculated at the prevailing rate of GST imposed by the government.4 PAYMENT
The Customer shall make payments of all amounts payable within the payment term stated on the invoice. If the Customer fails to make payment in accordance with this clause, all amounts owing by the Customer to ANKERMANN shall immediately become due and payable. The Customers shall not be entitled to withhold payment of any account by reason of any account query, dispute or set off.5 COLLECTION AND LEGAL FEES
If the Customer breaches these Terms and Conditions, ANKERMANN shall be entitled- to claim from the Customer all costs, expenses and charges incurred on any account whatsoever including but not limited to any action taken by ANKERMANN to recover monies or goods due from the Customer including but not limited to any mercantile agents costs and legal costs and disbursements on a solicitor-client basis, and
- to charge an interest charge at the rate of one point seven five per centum (1.75%) per month on a cumulative basis on all overdue amounts (including late payment charges andamounts 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 is a true measure of damages incurred by ANKERMANN. Payments received from the Customer will be credited first against any interest charge and all such fees shall be payable on demand
6 DELIVERY
All deliveries will incur a minimum delivery charge of 10 AUD with the exception of back order deliveries, which are part of an original order that has been partly fulfilled. Any date or time quoted for delivery is an estimate only and ANKERMANN shall endeavour to effect delivery at the time or times required by the Customer but failure to do so shall not confer any right of cancellation or refusal of delivery on the Customer or render ANKERMANN liable for any loss or damages directly or indirectly sustained by the Customer as a result thereof. The Customer shall not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery caused by any Force Majeure as described in clause 12. ANKERMANN's obligation to deliver shall be discharged on arrival of the goods at the Customer's nominated delivery destination, nominated transport company, nominated agent or the address appearing on the invoice. The Customer shall unload the goods upon delivery, provided that if the Customer is unable or unwilling to accept physical delivery of the goods when the goods are ready for delivery, ANKERMANN shall be entitled to charge a fee for any delay experienced or arrange for the storage of the good sat the risk and cost of the Customer including all transportation, storage and other consequential costs. ANKERMANN may, at its discretion, make and invoice partial deliveries and each partial delivery shall be a separate sale pursuant to these Terms and Conditions of Sale.7 INSPECTION
The Customer shall examine the goods immediately after delivery and ANKERMANN shall not be liable for any misdelivery, shortage, defect or damage unless ANKERMANN receives details in writing within seven (7) days of the date of delivery of the goods. ANKERMANN and the Customer agree that failure to notify by the Customer will be deemed to be acceptance of the goods as satisfactory and the Customer will have no further claim on ANKERMANN.8 RETURNS
a) Goods will not normally be accepted for return after (14) days from date of delivery.b) Acceptance of Goods returned does not imply agreement to issue a credit note.
c) A credit note will only be issued if the returned Goods are in original packs and found to be satisfactory by the Supplier in saleable condition. Delivery charge and small order surcharge will not be credited.
d) Freight on returns will be at the Customer's expense.
e) Customers will be subject to 20% handling and restocking charge, except in the case of Supplier error, or defective goods.
9 PROPERTY AND RISK
9.1 Notwithstanding delivery of the goods or their installation, property in any given goods shall remain with ANKERMANN until the Customer has paid and discharged any and all other indebtedness to ANKERMANN on any account whatsoever, including all applicable sales taxes and other taxes, levies and duties. Any payment made by or on behalf of a Customer which is later avoided by the application of any Statutory Provision shall be deemed not to discharge the Customer's indebtedness and, in such an event the parties are to be restored to rights which each respectively would have had if the payment had not been made.9.2 The risk in the goods shall pass to the Customer upon delivery to the Customer or his agent or to a transport company nominated by the Customer.
9.3 The Customer acknowledges that it is in possession of the goods solely as a bailee for ANKERMANN until payment as defined in clause 4 has been made in full to ANKERMANN and until such payment:
(a) the Customer shall be fully responsible for any loss or damage to the goods whatsoever and howsoever caused following delivery;
(b) the Customer shall store the goods separately from its own goods and those of any other party and in a manner which clearly identifies the goods, whether as separate chattels or as components, as the property of ANKERMANN.
(c) the Customer shall maintain records of goods owned by ANKERMANN identifying them as ANKERMANN's property, of the persons to whom the goods are sold or disposed to and of the payments made by such persons for such goods. The Customer shall allow ANKERMANN to inspect these records and the goods themselves on request.
9.4 The Customer hereby irrevocably grants to ANKERMANN, its agents and servants, an unrestricted right and licence, without notice to enter premises occupied by the Customer to identify and remove any of the goods the property of ANKERMANN in accordance with the Terms and Conditions of Sale without in any way being liable to the Customer or any person claiming through the Customer. ANKERMANN shall have the right to sell or dispose of any such goods removed or otherwise in its sole discretion and shall not be liable for any loss occasioned thereby.
9.5 The Customer shall be at liberty to agree to sell the goods (independently or affixed to other materials) subject to the condition that until payment has been made in accordance with clause 4, the Customer shall sell as an agent and bailee for ANKERMANN and that the entire proceeds from the sale thereof shall be held in a separate account on trust for ANKERMANN.
9.6 The right to on-sell, deal or otherwise dispose of the goods in the normal course of trade may be revoked at any time by ANKERMANN and shall automatically cease if a Receiver is appointed over any of the assets on the undertaking of the Customer or if a winding up order is made against the Customer or if the Customer goes into voluntary liquidation (otherwise than for the purpose of reconstruction or amalgamation) or administration or calls a meeting of, or makes any arrangement or composition with, creditors or commits any act of bankruptcy or where the Customer is in default of any of its obligations to ANKERMANN.
10 WARRANTY
Subject to payment in full being made as defined in clause 4, ANKERMANN shall use its best endeavours to pass on to the Customer the benefit of any warranties or guarantees it receives in respect of goods or parts thereof supplied to the Customer.11 LIMITATION OF LIABILITY
a) The Supplier will not be liable in respect of any loss or damages (including consequential loss or damage), howsoever caused (whether by negligence or otherwise), which may be suffered or incurred or which may arise directly or indirectly in respect of the Goods, howsoever acquired where any person has:(i) modified or in any way altered the Goods or changed the formulation or make-up of the Goods;
(ii) failed to use the Goods in accordance with the instructions or recommendations of the Supplier published from time to time in connection with the use of the Goods;
(iii) failed to use the Goods in accordance with any applicable laws or regulations.
b) The Supplier will not be under any liability in respect of any loss or damage (Including consequential loss or damage) however caused (whether by negligence or otherwise) which may be suffered or incurred or which may arise directly or indirectly in respect of any technical advice or assistance given or rendered by it to the Customer whether or not in connection with the manufacture, preparation or supply of Goods and/or Services to the Customer, provided that the Supplier has provided such technical advise or assistance with due care and skill.
c) Where any applicable legislation implies any term, condition or warranty into the relationship between the Supplier and the Customer or into these Terms and Conditions of Sale or a contract of sale between the Supplier and the Customer in relation to the sale or supply of Goods/Services, or otherwise gives the Customer a particular remedy the Supplier and that legislation or any legislation avoids or prohibits provisions excluding or modifying the application of, or exercise of, or liability under, such term, condition, warranty or remedy, then that term, condition, warranty or remedy shall be deemed to be included in these Terms and Conditions of Sale, or, as the case may be, apply to that relationship. However, the Supplier's liability for any breach of such term, condition or warranty or under such remedy shall be limited, at the Supplier's option, in any one or more of the ways permitted by that legislation including, where so permitted:
(i) if the breach relates to any Goods, to:
(A) the replacement of those Goods or the supply of equivalent goods;
(B) the repair of those Goods;
(C) the payment of the cost of replacing those Goods or acquiring equivalent goods; or
(D) the payment of the cost of having those Goods repaired; and
(ii) if the breach relates to any Services to:
(A) the supply of those Service again; or
(B) the payment of the cost of hiving those Service supplied again
(d) If there is any inconsistency between the express terms of these Conditions and any term, condition, warranty or remedy deemed to be included in these Conditions pursuant to sub-clause 9(c), that term, condition, warranty or remedy shall prevail to the extent of the inconsistency,
(e) The description, illustrations and other material contained in the catalogue, price list, brochure, leaflet or other material provided by or on behalf of the Supplier shall not form part of these Conditions or any contract between the Supplier and the Customer for the supply of Goods or Services and shall not amount to any representation or warranty (whether collateral thereto or otherwise), nor shall the use of such material constitute a contract of sale by description. All Goods and Services supplied by the Supplier shall be in conformity with the Supplier's standard commercial specifications at the time of supply, subject to the Supplier's right without notice to incorporate such minor modifications thereto as it thinks fit or any modifications of whatever nature necessary to comply with any relevant law.
