1. Definitions
In these Conditions of Sale, the following definitions apply:
Buyer means the person by or on behalf of whom these Conditions of Sale are accepted and who places Orders from time to time.
Seller means Chirra Scuro Pty Ltd, ACN 122 262 917 of PO BOX 591 Heidelberg, Victoria Australia 3084.
Order means an order placed by Buyer (or on Buyer's behalf), whether by telephonic, postal, facsimile or electronic means, for the supply of Products by Seller in accordance with these Conditions of Sale. For the purposes of this definition, an order placed by electronic means consists of an order placed through facilities provided by Seller on its website, which is located at http://www.bcozoz.com.
Products means the goods ordered by Buyer and to be provided to Buyer by Seller, (including Retail Products and Wholesale Products) in accordance with these Conditions of Sale.
2. Contract
2.1. These Conditions of Sale are the only terms and conditions on which Seller will accept Orders. No variation of these Conditions of Sale will apply without the prior written agreement of Seller.
2.2. Orders received by Seller constitute an offer by Buyer to purchase Products from Seller. Seller may, at its absolute discretion, accept or reject any such offers to purchase Products.
2.3. Any description of any Products (including but not limited to any information relating to Products and their use, such as weights, dimensions, capacities, prices, colours) contained in this document or any other document or literature generated by Seller (including but not limited to information contained in catalogues, circulars, advertisements, illustrations, price lists) is given for identification purposes only. The provision of such information does not constitute any Contract concluded under these Conditions of Sale as a contract for the sale of goods by description.
2.4. Any sample of Products provided by Seller, whether before or after acceptance of an Order by Seller is provided by way of general example only. The provision of such samples does not constitute any Contract concluded under these Conditions of Sale as a contract for the sale of goods by sample.
2.5. Buyer acknowledges that the confirmation by Seller of an Order constitutes acceptance of the offer to purchase Products by Buyer and creates a binding contract between them for the sale of Products by Seller to Buyer, the terms of which include these Conditions of Sale (Contract).
2.6. No Contract may be cancelled or varied by Buyer without the express written agreement of Seller.
2.7. Seller reserves absolute discretion to allocate supplies of Products between Buyers.
3. Price and Payment
3.1. Orders for Products intended for private, domestic or household use (that is, not resale use) (Retail Products) shall be invoiced at retail prices set by Seller from time to time. Buyers placing Orders for Retail Products agree to pay the retail price as specified on Seller's price list current at the time such Orders are placed with Seller.
3.2. Orders for Products not fitting the description in clause 3.1 (Wholesale Products) shall be invoiced at wholesale prices set by Seller from time to time. Buyers placing Orders for Wholesale Products agree to pay the wholesale price specified on Seller's price list current at the time Products are despatched for delivery to Buyer, notwithstanding that such price may differ from the wholesale prices specified by Seller at the time Orders are placed.
3.3. In addition to the purchase price of Products, Buyer must pay all taxes (including any applicable sales tax except where Seller is eligible for an exemption and Buyer has provided Seller with all necessary documents to claim such exemption), duties, fees or other government levies or charges which may be imposed with respect to Products supplied by Seller, unless otherwise agreed at the time of order.
3.4. Orders for Products not fitting in the description in clause 3.1 (Wholesale Products) , Buyer must pay equivalent to 50% (half) of total invoice value at the time order is placed, then the balance together with all amounts owed by it under these Conditions of Sale, within 30 days from the date specified on an invoice issued by Seller pursuant to an Order.
3.5. In addition to any other rights or remedies available to Seller either under these Conditions of Sale, at law or in equity, where Buyer fails to make payment when due under these Conditions of Sale:
(a) Buyer must pay interest on any amount owing at a rate which is 2% per annum higher than the current penalty interest rate applicable in Victoria, as set down by the Attorney-General under the Penalty Interest Rate Act 1983 (Vic) from time to time (Currently 12%). Such penalty interest will be calculated monthly; and
(b) Buyer may incur charges relating to all reasonable costs, fees and expenses incurred by Seller in obtaining payment for Products.
3.6. For Orders concerning Wholesale Products, Seller may insist, at its absolute discretion, that Buyer provides security for payment through letter of credit facilities. Where Seller so insists:
(a) Buyer must provide to Seller a confirmed irrevocable letter of credit in favour of Seller for a price to be specified by Seller;
(b) the letter of credit must be drawn so that it is payable in full no later than required by these Conditions of Sale; and
(c) the credit issued pursuant to any letter of credit must be issued under and be governed by the International Chamber of Commerce Uniform Customs and Practice for Documentary Credits 1993 (UCP 500) standard.
3.7. Payment of any amount owed under these Conditions of Sale is taken to be made when all amounts owed are received and cleared into Seller's bank account.
3.8. Notwithstanding the foregoing, payment may be made for Products in any other manner as agreed in writing between the parties before delivery.
4. Delivery
4.1. Notwithstanding clause 3.4, for Orders concerning Retail Products, Seller will not despatch Products until such time as Seller receives payment in full for any such Order. Seller also reserves the right to withhold the despatch of Wholesale Products until such time as Buyer provides Seller with security for payment in accordance with clause 3.6.
4.2. Subject to clause 4.1, Seller will use all reasonable endeavours to have Products delivered in a prompt fashion, provided that Seller will not be liable to Buyer for any failure to deliver any or all Products Ordered on any anticipated delivery date. Such failure by Seller will not entitle Buyer to cancel or terminate any Contract concluded pursuant to these Conditions of Sale.
4.3. Seller will arrange for Products to be delivered to the destination specified for delivery in an Order. Where no destination is specified, Seller will arrange for delivery to be made to Buyer's last known address.
4.4. All freight and handling charges, insurance costs other costs associated with transporting Products to Buyer must be met by Buyer. Seller shall have control over selecting the mode of transport and carrier. Such costs will appear as separate costs on any invoice issued by Seller unless otherwise agreed at the time of order.
4.5. Seller is not responsible to Buyer or any person claiming through Buyer for any loss or damage to Products occurring in transit caused by any event of any kind by any person (whether or not Seller is legally responsible for the person causing or contributing to that loss or damage).
4.6. Seller will provide Buyer with such assistance as may be necessary in dealing with carriers in relation to delivery of Products.
5. Risk and Title
5.1. All ownership of, property in and legal title to Products shall remain with Seller until such time as Buyer has paid in full the Contract price for Products and all other debts owing by Buyer to Seller at the relevant time.
5.2. Until such time as Buyer has paid in full all amounts owing to Seller:
(a) Buyer shall hold all Products separately as bailee for Seller in such a way that they can be traced and identified as having been supplied pursuant to an Order submitted by Buyer; and
(b) where Products or any part of them are mixed with or become part of other goods in the possession of or under the control of Buyer, Seller shall have title to such other goods and Buyer holds such other goods as a bailee for Seller.
5.3. Notwithstanding clauses 5.1 and 5.2, Buyer may resell and deliver Products to its customers in the ordinary course of carrying on its business, provided that, where Buyer has not fully paid all amounts owed by it to Seller:
(a) Buyer holds in trust for Seller all proceeds resulting from the resale of Products to Buyer's customers; and
(b) Buyer assigns to Seller any claims it may have against Buyer's customers arising out of the resale of Products.
5.4. Without prejudice to any other rights or remedies available to Seller, whether under the Contract or at law or equity, if Buyer does not pay all amounts owed by it to Seller, Seller may:
(a) suspend performance of or terminate any other agreement between Buyer and Seller; and
(b) repossess any Products supplied by it to Buyer. For such purposes, Seller or any one or more of Seller's authorised representatives shall be entitled at any time without notice to enter upon any premises in which the Products are or are reasonably believed by Seller to be kept, stored or used, and to repossess the same on behalf of Seller and shall not be responsible for any damage reasonably necessary in enforcing its right.
5.5. Where the place specified for delivery by Buyer in an Order:
(a) is located within mainland Australia, risk of loss or damage to Products passes to Buyer from the time those Products are delivered to that place; and
(b) is located outside mainland Australia, risk of loss or damage to Products passes to Buyer from the time those Products are handed by Seller, or Seller's authorised representatives, to the freight carrier arranged by or on behalf of Buyer for delivery of Products.
5.6. If any question arises as to the ownership of any Products, Buyer shall have the onus of proving that, in respect of those Products, ownership or title has passed to Buyer.
6. Inspection and Returns
6.1. Upon the arrival of Products at the delivery destination (as determined by clause 4.3), Buyer will inspect Products and notify Seller in writing, within seven (7) days of the arrival of Products, of any lack of conformity with the requirements of an Order or these Conditions of Sale (whether by reason of delivery of the wrong Products or Products delivered are allegedly faulty or defective). Buyer accepts that Products containing minor discrepancies generally accepted in products of the same or similar type as the Products do not amount to non-conforming Products for the purposes of this clause 6.1.
6.2. Where Products delivered are Wholesale Products, Buyer agrees to set any allegedly faulty or defective Products aside for inspection at the address of delivery by Seller or Seller's representative. Where Seller or Seller's representative concludes, after such inspection that the Wholesale Products delivered are faulty or defective, Seller may, at its discretion:
(a) replace such Wholesale Products with other products conforming with the requirements of an Order or these Conditions of Sale; or
(b) offer to repair such Wholesale Products or have such Wholesale Products repaired at Seller's cost; or
(c) take back such faulty or defective Wholesale Products at Seller's cost and refund Buyer the price of such faulty or defective Wholesale Products.
6.3. Buyer agrees that no action for lack of conformity can be taken after 12 months of the date of arrival of Wholesale Products at the delivery destination (as determined by clause 4.3). Buyer expressly agrees that Buyer will not plead non-conformity of Wholesale Products, or make a counter-claim based on such non-conformity of Wholesale Products, in defence of any action taken against it by Seller after the expiry of that 12-month period.
6.4. The return of any Retail Products supplied by Seller must be accompanied by a valid receipt and a written explanation for the return of the Retail Product. All such returns will be at Buyer's cost and risk. Where the returned Retail Products are found to be faulty or defective, Seller shall accept the return of such Retail Products and may, at its discretion, offer an exchange for replacement Retail Products or a refund to Buyer of the purchase price of such Retail Products.
7. Disclaimers
7.1. Buyer acknowledges that Orders submitted are done so without reliance on any representation, illustration or description of Products which may have been made by Seller in any catalogues, price lists or other material of Seller which feature Products.
7.2. Without limiting Seller's obligations under these Conditions of Sale, subject to clause 7.3, all implied terms, conditions and warranties (whether statutory or otherwise), and any liability in negligence, are hereby excluded.
7.3. If the Trade Practices Act 1974 (Cth) or any other Act (including States’ Goods Acts) implies into these Conditions of Sale any term, condition or warranty which cannot be excluded and if Seller breaches such term or condition or warranty then Seller's liability is (if permitted by the relevant Act) limited at Seller's election, to the replacement or re-supply of Products, or the payment of the cost of replacing or re-supplying Products, or the payment of the cost of obtaining equivalent products.
7.4. Subject to clause 7.3, Seller shall have no liability whatsoever (whether in contract, tort including negligence, pursuant to statute or otherwise) to Buyer for any loss of profits, liability to any third party, or any indirect or consequential loss or damage of whatsoever kind in respect of the subject matter of the Contract (including any act or omission of Seller in the performance of the Contract).
7.5. To the extent permitted by law, and subject to clause 7.3, in the event that Seller is liable to Buyer then Seller's total and aggregate liability whatsoever (including in contract, tort including negligence, pursuant to statute and otherwise) arising out of, or otherwise in relation to, these Conditions of Sale (including any acts or omissions of Seller in the performance of the Contract) shall be limited to payment of damages recoverable at law up to a maximum of the amount specified in the invoice issued to Buyer in response to an Order.
8. Force Majeure
8.1. Where Seller is prevented or delayed in performing any of Seller's obligations under the Contract by any circumstance beyond its reasonable control, Seller is excused from performing Seller's obligations for as long as such circumstance persists, provided that Seller gives Buyer prompt notice of such circumstance arising together with an estimate of the likely duration of such circumstance.
8.2. Upon the cessation of circumstances preventing or delaying Seller from performing Seller's obligations under the Contract, Seller shall be afforded a reasonable time to perform its obligations without any liability whatsoever.
8.3. Where circumstances preventing or delaying Seller from performing Seller's obligations under the Contract persist for a continuous period of more than three (3) months, Seller and Buyer shall commence negotiations in good faith to resolve the problem in a mutually agreed manner.
9. Governing Law
9.1. The Contract shall be governed by and construed in accordance with the laws of the State of Victoria, Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in the State of Victoria, Australia.
9.2. Insofar as it may be applicable, the 1980 United Nations Convention on Contracts for the International Sale of Goods and the Sale of Products (Vienna Convention) Act 1987 (Vic) does not apply in any way to any transaction contemplated under these Conditions of Sale.
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