Standard Conditions of Sale
DH GIBSON PTY LTD
Standard Conditions of Sale
These conditions of sale are deemed to apply to all sales by DH Gibson Pty Ltd (“DHG”) (which also trades as Gibson Shopfitters) to its customers unless they are specifically varied in writing by DHG.
2. PURCHASE ORDERS
Purchase orders placed by any person, or any firm or company through its employees, whether in writing or verbally, are deemed to incorporate these terms and conditions. Orders for equipment specially manufactured to a customer’s specifications or any equipment modified from DHG’s standard equipment as shown in its current catalogue cannot be cancelled.
Unless otherwise expressly stated by DHG in writing, all goods will be charged at the prices ruling on the date the purchase order is accepted and are subject to the applicable GST. Prices include standard packing where applicable but the cost of any special or export packing shall be to the customer’s account.
Payment is required by account customers within 14 days from date of invoice, unless otherwise expressly arranged in writing. However DHG reserves the right to require payment in advance or cash on delivery to any customer. To the fullest extent legally possible, if DHG grants any credit facility or nominates any credit limit, this is an indication only of its intention at the time. DHG can vary or withdraw any credit facility at its unfettered discretion, without liability to the Customer or any other party.
Export sales are subject to the provision of an Irrevocable Documentary Letter of Credit in favour of DHG.
5. PROPERTY AND RISK
(a) Unless the customer is a Consumer as defined by the Australian Consumer Law, DHG and the customer agree, if permitted at law, that nothing in this clause creates a charge in favour of DHG which is registrable under the Corporations Act 2001 (Cth) or the bills of sale security interest legislation.
(b) It is agreed that all the goods and fittings that are supplied are personal property registrable in favour of DHG and over which DHG has a security interest. It is further agreed that in accepting the terms and conditions of this agreement the customer (grantee) accepts that this sale is registrable under the Personal Property Securities Act 2009 (PPSA).
(c) Until full payment in cleared funds is received by DHG for all goods supplied by it to the customer, as well as all other amounts owing to DHG by the customer under any other contract:
(i) legal title and property in all goods supplied under this contract remain vested in DHG and do not pass to the customer;
(ii) the customer holds the goods as fiduciary agent and bailee for DHG;
(iii) the customer must keep the goods separate from other goods and maintain the labelling and packaging of DHG so that they are readily identifiable as the property of DHG, however failure to comply with these requirements will not affect DHG’s title and property to the goods;
(iv) the customer must not sell the goods except in the ordinary course of the customer’s business;
(v) the customer holds and agrees to hold the proceeds of any sale of the goods on trust for DHG in a separate account in to which no other monies shall be paid; however failure to deposit the proceeds of a sale into a separate account or to keep those monies separate will not affect the customer’s obligation to deal with the proceeds as trustee of the proceeds for DHG. The proceeds of the sale of goods supplied will be held on trust for DHG until actual payment of the proceeds is made to DHG;
(vi) DHG may without notice, enter any premises where it suspects the goods may be located and remove them without committing a trespass, notwithstanding that they may have been attached to other goods or land not the property of DHG, and for this purpose the customer irrevocably licences DHG to enter such premises and also indemnifies DHG from and against all costs, claims demands or actions by any party arising from such action.
(d) DHG and the Customer agree that this clause creates relevant, valid and enforceable retention of title by DHG irrespective of any credit arrangement between DHG and the customer
6. RETURN OF GOODS
Return of goods due to the customer simply changing their mind is subject to prior written approval by DHG and is applicable only to standard catalogue equipment returned in good condition within seven days of delivery. All goods returned are subject to a 10% handling charge and the customer is responsible for payment of freight on goods returned. DHG undertakes to manufacture special items to approved customer specifications and drawings but any claims for replacement or rectification of these goods due to the customer simply changing their mind will only be accepted within seven days of delivery.
Where DHG has followed a design or instruction given by a customer, the customer will indemnify DHG against all damages, penalties, costs and expenses to which DHG may become liable through any work required to be done in accordance with those instructions involving an infringement of any patent, trademark, registered design, copyright or common law right.
8. PRODUCT SPECIFICATIONS
DHG reserves the right to vary product specifications without notice.
It is acknowledged by the customer that no warranty, condition, description or representation in relation to goods supplied is given by DHG, expressly or impliedly. To the extent permitted at law, all warranties, terms and conditions in relation to the state, quality or fitness of the goods and of every other kind whether implied by use, statute or otherwise are hereby excluded.
When any legislation implies into this contract any warranty, term or condition and that Act prohibits or voids provisions in a contract excluding or modifying the application of or exercise of, or liability under such warranty, term or condition, such warranty, term or condition shall be deemed to be included in this contract. However, if permitted at law, DHG’s liability for any breach of such warranty, term or condition shall be limited, at DHG’s option, to any one or more of the following:
(a) If the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) If the breach relates to services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again, as available to DHG.
To the extent permitted at law, DHG shall not be liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply of the goods and or services, arising out of DHG’s negligence or in any way whatsoever.
CERTAIN LAWS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES OR IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU AS A CONSUMER, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Without prejudice to any other rights DHG may have, the customer shall indemnify DHG for any loss, damage or expense incurred by DHG should the customer cancel any order or breach any term hereof. The customer shall include signatory directors of the customer to credit applications with DHG.
11. PAYMENT CLAIMS
Any claim for payment is a payment claim under the Building and Construction Industry Security of Payment Act 1999 NSW, whenever the Act is applicable to the Contract of supply.
12. CONSUMER SALES
FOR THE AVOIDANCE OF DOUBT, THESE STANDARD CONDITIONS OF SALE DO NOT EXCLUDE THE REMEDIES RELATING TO CONSUMER GUARANTEES APPLICABLE TO THE SALE OF GOODS AND OR SERVICES WHICH ARE AVAILABLE TO CONSUMERS AND DHG UNDER PART 5-4 OF THE AUSTRALIAN CONSUMER LAW.
Revised July 2012