Stress Free Marine Pty Ltd
ABN 72 110 746 944
TERMS & CONDITIONS OF SALE
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1.1 In these terms and conditions:
“Stress Free Marine” means Stress Free Marine Pty Ltd, ABN 72 110 746 944, and its successors and assigns;
“Claim” against any person means any claim, action, proceeding, loss, damage, cost, expense or liability whatsoever incurred or suffered by, or brought or made or recovered against, that person, no matter how arising (whether or not presently ascertained, immediate, future or contingent);
“Customer” means the person(s) or body(ies) corporate to whom the Terms are directed;
“Goods” means all goods from time to time ordered from Stress Free Marine by the Customer;
“Order” means an order for Goods placed with Stress Free Marine by the Customer; and
“Terms” means these terms and conditions.
1.2 The Terms shall not be interpreted against a party on the basis that that party prepared the Terms or any part of them.
1.3 The Terms shall be all of the operative terms and conditions of the sale of Goods by Stress Free Marine to the Customer from time to time, in the absence of a written agreement to the contrary.
1.4 Each word, phrase, sentence and clause of the Terms is severable.
1.5 The Terms prevail over any terms and conditions of the Customer in relation to the purchase of Goods.
1.6 Where the Customer comprises 2 or more persons and/or bodies corporate, the obligations on the part of the Customer in the Terms binds them jointly and each of them severally.
1.7 Any failure to exercise or enforce a right or privilege, including a right of indemnity, or any delay in doing so, by Stress Free Marine shall not prejudice its ability to exercise that right in the future.
1.8 Completion or termination of a transaction shall be without prejudice to Stress Free Marine’s accrued rights.
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2.1 Stress Free Marine shall use reasonable endeavours to ensure that the Goods are supplied to the Customer on or before the date (if any) specified in the relevant Order, but Stress Free Marine shall not be liable for any Claim arising in connection with any failure by Stress Free Marine to deliver the Goods on or before that date.
2.2 The Customer shall be deemed to have accepted Goods upon delivery of the Goods to the Customer.
2.3 Stress Free Marine reserves its rights at all times to suspend the supply of further Goods (whether on credit or otherwise) to the Customer without being required to give reasons, and Stress Free Marine shall not be responsible in any way for any loss suffered or incurred by the Customer due to such suspension.
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Prices for Goods are subject to change without notice, and are those prevailing at the date of receipt by Stress Free Marine of the Order for those Goods.
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4.1 Title to Goods shall not pass to the Customer until Stress Free Marine has been paid in full for all moneys owing to Stress Free Marine for or in relation to those Goods and all Goods the subject of any prior Order, and the Customer shall hold the Goods as bailee and fiduciary agent for Stress Free Marine until title passes.
4.2 The Customer shall be entitled to sell the Goods, in respect of which payment in full has not been made, as fiduciary agent of Stress Free Marine. In that case the proceeds of such sale shall be held in trust for Stress Free Marine and shall not be mingled with other moneys, but shall be paid into a separate trust account, and the Customer shall not be entitled to transfer any moneys from that trust account until payment to Stress Free Marine for those Goods and all Goods the subject of any prior Order.
4.3 Risk in Goods passes to the Customer on delivery.
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The Customer shall fully insure all of the Goods for their full replacement value, noting the interest of Stress Free Marine, from the time that risk in the Goods passes to the Customer until the time that title to the Goods passes to the Customer and, in the event of any of the Goods being damaged, destroyed or lost in such circumstances, the proceeds of the insurance claim shall be paid to Stress Free Marine until all monies owing to Stress Free Marine in respect of the sale of the Goods are paid to Stress Free Marine.
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6.1 Any credit granted to the Customer is so granted on the basis of information provided to Stress Free Marine by the Customer, and in the event of that information materially changing, or new facts or circumstances arising, to the possible prejudice of Stress Free Marine, the Customer shall advise Stress Free Marine immediately.
6.2 The benefit of the credit facility is not transferable to any other party without the prior written consent of Stress Free Marine.
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7.1 All Goods supplied by Stress Free Marine to the Customer on credit shall be paid in full by the Customer, without deduction or set-off, within 30 days of the date of the relevant invoice.
7.2 Where the Customer fails to pay to Stress Free Marine any sum when due, Stress Free Marine shall be entitled to:
7.2.1 charge interest on the amount then unpaid, at the Commonwealth Bank of Australia’s Corporate Overdraft Reference Rate (or such comparable rate that the Commonwealth Bank of Australia issues from time to time in substitution for the Corporate Overdraft Reference Rate) at the time the default occurred, plus 3% per annum, calculated daily from the date of default until the date when such amount is paid in full; and
7.2.2 recover from the Customer all costs and expenses incurred, or to be incurred, by Stress Free Marine in connection with the recovery of any amount due and payable by the Customer (including legal costs on a full indemnity basis), without limiting any other right or remedy otherwise available to Stress Free Marine.
7.3 A certificate signed by an officer of Stress Free Marine stating the amount then owing by the Customer shall be conclusive evidence of that amount.
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8.1 If:
8.1.1 the Customer fails to make payment for any Goods on or before the due date and/or breaches any provision of the Terms; or
8.1.2
(a) a receiver, receiver and manager or controller is appointed in respect of all or any of the Customer’s assets;
(b) an administrator is appointed in respect of the Customer;
(c) any resolution is passed to wind up the Customer or an application is made to a court for the winding up of the Customer; or
(d) any action is taken which could result in the Customer becoming “an insolvent under administration” within the meaning of Section 9 of the Corporations Act 2001 (Cth), or if the Customer is an individual, they enter into a deed under Part X of the Bankruptcy Act 1966 (Cth),
then, notwithstanding any credit Stress Free Marine may have granted to the Customer and without limiting clause 7:
8.1.3 all amounts owing by the Customer to Stress Free Marine shall immediately become due and payable;
8.1.4 Stress Free Marine may, without notice, enter any premises occupied by the Customer and remove all the Goods, in respect of which title has not passed to the Customer, and may use such force and take such action as may be necessary to gain access to the premises for the purpose of removing the Goods; and
8.1.5 the Customer’s right to possession of the Goods, and the proceeds of sale of the Goods, and to sell the Goods, shall cease.
8.1.6 To the extent that any provision of this clause 8 or clause 4 constitutes a charge, that provision shall be severable at the option of Stress Free Marine and such severance shall not affect the other provisions of that clause or the Terms.
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The Customer shall not delete, conceal, deface, obscure, erase, remove or alter the brand name or logo of Stress Free Marine located on any goods received from Stress Free Marine
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The Customer shall not, without the prior written consent of Stress Free Marine:
10.1 copy, reproduce, [alter, modify,] create derivative works of, make or manufacture a look-alike or reverse engineer any of the Goods; or
10.2 sell or supply any products that are copies, reproductions, [alterations, modifications,] derivative works of, or the product of reverse engineering of the Goods; or
10.3
(a) attempt; or
(b) aid, abet, induce or procure any other person to do or attempt
(c)to do any of the above.
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To the extent permitted by law and except as set out in the Terms:
11.1 all express or implied warranties, guarantees and conditions relating to the Goods, no matter how arising, are excluded;
the Customer releases Stress Free Marine from, and shall indemnify, keep indemnified and hold harmless Stress Free Marine in respect of, all Claims arising in connection with the Goods or the supply thereof.
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Where any legislation implies in the Terms any term, condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of, or liability under such term, condition or warranty, such term, condition or warranty shall be deemed to be included in this Agreement. However, the liability of Stress Free Marine for any breach of such term, condition or warranty shall be limited, at the option of Stress Free Marine, to any one or more of the following:
12.1 if the breach relates to goods:
12.2 the replacement of the goods or the supply of equivalent goods;
12.3 the repair of such goods;
12.4 the payment of the cost of replacing the goods or of acquiring equivalent goods; or
12.5 the payment of the cost of having the goods repaired.
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The Terms are governed by, and shall be construed in accordance with, the laws in force in the State of South Australia. The parties submit to the non-exclusive jurisdiction of the courts of that State.
