Sample Room (Vic) PTY LTD
ABN 99 159 300 464
Terms and Conditions of Sale
ABN 99 159 300 464
These are the entire terms and conditions of all goods, merchandise and services (Goods) supplied by Sample Room (Vic) Pty Ltd (ABN ) (Sample Room) to any person, firm or company placing an order with Sample Room (Customer), or where Goods are used during the provision of a service to the Customer (Terms and Conditions). Except as otherwise expressly agreed upon in writing between a duly authorised officer of Sample Room and the Customer, these Terms and Conditions shall apply notwithstanding any provisions to the contrary which may appear on any form or other document issued by the Customer.
1.1 All orders placed with Sample Room shall only be accepted subject to these Terms and Conditions and such altered Terms and Conditions shall apply after notification by Sample Room to the Customer.
1.2 Sample Room reserves the right to accept or decline, in whole or in part, any order placed by the Customer.
1.3 If a Customer cancels or alters any order or part order at any time after Sample Room has received the order then Sample Room reserves the right to charge to the Customer the costs of any Goods or materials already acquired for the order together with the cost of any labour and tooling expended to the date of such cancellation or alterations.
1.4 Goods and Services Tax (GST), Sales Tax or any other applicable tax or duty payable shall be paid by or reimbursed by the Customer to Sample Room on demand and the Customer shall indemnify and keep indemnified Sample Room in respect of all taxes and duties including GST arising out of any sale of Goods or the subsequent use of Goods after the sale to the Customer.
All prices shall be those referred to in Sample Room's price lists and/or arrangements current at the date of invoice and prices shall be subject to change without notice.
3. Terms of payment
3.1 Unless otherwise stated on the invoice all prices are strictly net. The granting of credit to a Customer shall be at the absolute discretion of Sample Room and unless otherwise demanded by Sample Room the Customer shall make payment of all amounts payable within 30 days of the date of invoice.
3.2 Customers shall not be entitled to withhold payment of any account by reason of any account query, dispute or set-off. The Customer agrees to pay Sample Room administration and handling fees in respect of any copies of documents required or other processing involved in the conduct of the account and such fees will be charged to the Customer's account.
3.3 If the Customer fails to make payment in accordance with clause 3.1, Sample Room shall be entitled to:
(1) require the payment of cash upon delivery of any further Goods;
(2) charge an interest charge at the rate of 1.75% per month on a cumulative basis on all overdue amounts (including late payment charges and amounts 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 Sample Room. Payments received from the Customer will be credited first against any interest charge and all such fees shall be payable on demand;
(3) claim from the Customer all costs, expenses and charges incurred on any account whatsoever including but not limited to any action taken by Sample Room 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
(4) cease any further deliveries to the Customer and to terminate any agreement in relation to Goods that have not been delivered.
3.4 Customers having overdue accounts will be precluded from participating in any special deals, discounts, bonus payments, redemptions, rebates and all other incentive programmes until their accounts are no longer overdue.
4.1 Any date or time quoted for delivery is an estimate only and Sample Room 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 Sample Room liable for any loss or damages directly or indirectly sustained by the Customer as a result thereof.
4.2 To the full extent allowed by law, Sample Room is not liable to the Customer for any loss or damage whatsoever (including inconsequential loss) caused directly or indirectly by any delay or failure in delivery. Any delay in delivery does not relieve the Customer of its obligation to accept that delivery and any remaining delivery.
4.3 If the Customer requests special delivery services (e.g. express post or air freight) which are not part of Sample Room's standard delivery services, then the charges for special delivery services may be charged to the Customer.
4.4 Sample Room's obligations 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, Sample Room shall be entitled to charge a fee for any delay experienced or arrange for the storage and other consequential costs. Sample Room may, at its discretion, make and invoice partial deliveries and each partial delivery shall be a separate sale pursuant to these Terms and Conditions.
5.1 The Customer shall examine the Goods immediately after delivery and Sample Room shall not be liable for any mis-delivery, shortage, defect or damage unless Sample Room receives details in writing within seven days of the date of delivery of the Goods.
6. Property and risk
6.1 Notwithstanding delivery of the Goods or their installation, property in any given Goods shall remain with Sample Room until the Customer has paid and discharged any and all other indebtedness to Sample Room on any account whatsoever, including all applicable GST and other taxes, levies and duties (Amount Owing). 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 Amount Owing 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.
6.2 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.
6.3 The Customer acknowledges that it is in possession of the Goods solely as a bailee for Sample Room until payment as defined in clause 3.1 has been made in full to Sample Room and until such payment:
(1) the Customer shall be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused following delivery;
(2) 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 Sample Room; and
(3) the Customer shall maintain records of Goods owned by Sample Room identifying them as Sample Room property, of the persons to whom the Goods are sold or dispose to and of the payments made by such persons for such Goods. The Customer shall allow Sample Room to inspect these records and the Goods themselves on request.
6.4 The Customer hereby irrevocably grants to Sample Room, 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 Sample Room in accordance with the Terms and Conditions without in any way being liable to the Customer or any person claiming through the Customer. Sample Room 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.
6.5 If the Goods are affixed to other materials, the totality thereof shall be the sole and exclusive property of Sample Room until payment as defined in clause 3.1 has been made in full to Sample Room unless the other materials or part thereof are or is the property or a party or parties other than the Customer in which case the totality thereof shall be deemed to be owned as tenants-in-common with such other party or parties in shares corresponding to the respective amounts paid or payable by the Customer in respect of such other party or parties.
6.6 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 3.1, the Customer shall sell as an agent and bailee for Sample Room and that the entire proceeds from the sale thereof shall be held in a separate account on trust for Sample Room.
6.7 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 Sample Room 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 Sample Room.
7. Security Interest
7.1 If a term used in this clause has a particular meaning in the Personal Property Securities Act 2009 (Cth) (PPSA) it has the same meaning in this clause.
7.2 If Sample Room determines in its absolute discretion that the PPSA applies to any transaction subject to these Terms and Conditions, the Customer agrees that:
(1) it grants a first ranking security interest and purchase money security interest in the Goods supplied to it for the purposes of the PPSA, as security for all Amounts Owing, which is a continuing security despite any settlement of account or other matter or thing until a final discharge is given to Sample Room (where applicable);
(2) it will execute such further documents and take steps required by Sample Room to register a financing statement or financing charge statement in relation to the Goods on the Personal Property Securities Register, or otherwise perfect Sample Room's interest in the Goods, including any agreements required from other secured parties, and if requested by Sample Room, will not take possession of the Goods unless Sample Room has registered a financing statement designating a purchase money security interest over them;
(3) it waives its right under s157 of the PPSA to receive notice of any verification statement relating to the registration of any such financing statement or any related financing change statement; and
(4) Sample Room may appropriate (or re-appropriate despite any prior appropriation) moneys received in respect of the Customer in its absolute discretion toward any part of the Amount Owing, including in order to maximise the extent to which it can have recourse to its security interest in the Goods held by the Customer.
7.3 Both Sample Room and the Customer agree that the following provisions of the PPSA do not apply:
(1) to the extent that s115(1) of the PPSA allows them to be excluded: ss95, 118, 121(4), 125, 130, 132(3)(d), 135, 138B(4), 142 and 143; and
(2) to the extent that s115(7) of the PPSA allows them to be excluded ss 127, 129(2) and (3), 132, 134(2), 135, 136(5) and 137.
7.4 The terms of this clause 7.1 prevail over any other term in these Terms and Conditions or any other agreement between Sample Room and the Customer to the extent of any inconsistency.
8. General lien
8.1 In addition to any right of lien to which Sample Room may be entitled under the common law, Sample Room shall be entitled to exercise a general lien over all items in its possession belonging to the Customer until the Customer has paid in full for all Goods supplied by Sample Room to the Customer. Sample Room may in its sole discretion sell any item that is subject to the said lien, provided that Sample Room shall pay the Customer any surplus proceeds that are realised by it from a sale of any such items after discharging in full all monies outstanding to Sample Room in respect of Goods that have been delivered to the Customer and all reasonable costs of sale incurred by Sample Room.
8.2 The Customer acknowledges that Sample Room has a security interested (for the purposes of the PPSA) in these items, and the proceeds of these items, until the Customer has paid in full for all Goods supplied by Sample Room in accordance with this clause 8. The Customer will do anything required by Sample Room to enable Sample Room to register this security interest, with the priority Sample Room requires, and to maintain that registration. Despite this requirement for registration of this security interest, and regardless of whether or not it is actually registered, Sample Room may perfect this security interest by possession of the relevant items.
Subject to payment in full being made as defined in clause 3.1, Sample Room 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.
10. Limitation of liability
10.1 These Terms and Conditions do not exclude, restrict or modify the application of any provisions of any Commonwealth, State or Territorial Law which by law cannot be excluded, restricted or modified.
10.2 Notwithstanding anything to the contrary in these Terms and Conditions, to the extent that the Customer acquires Goods from Sample Room as a consumer within the meaning of the Australian Consumer Law set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) as amended or replaced from time to time, the Customer may have certain rights and remedies (including, without limitation, consumer guarantee rights) that cannot be excluded, restricted or modified by agreement. Nothing in this clause 9operates to exclude, restrict or modify the application of any implied condition or warranty, provision, the exercise of any right or remedy, or the imposition of any liability under the Australian Consumer Law or any other statute where to do so would:
(1) contravene that statute; or
(2) cause any term of these Terms and Conditions to be void,
10.3 Except in relation to the Non-excludable Obligations, all conditions, warranties, guarantees, rights, remedies, liabilities or other terms that may be implied by custom, under the general law or by statute that impose any liability on Sample Room are expressly excluded under these Terms and Conditions.
10.4 Except in relation to Non-excludable Obligations and subject to clause 12, Sample Room's liability to the Customer (and any party claiming through the Customer against Sample Room) for any claim for loss or damages (including legal expenses) made in connection with the supply of Goods by Sample Room and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited as follows:
(1) Sample Room will have no liability whatsoever to the Customer for any loss, harm, damage, cost or expense (including legal fees), or in the nature of special, indirect or consequential loss or damage (including, without limitation, economic loss, loss of contract, loss of profit or revenue, loss of opportunity, loss of production, production stoppage, loss of contract, loss of customers, loss of business opportunity or business, loss of goodwill or reputation, loss of value of intellectual property, loss or damage resulting from the loss or damage to Goods other than the Goods or loss of data); and
(2) the aggregate of Sample Room's liability to the Customer in respect of any Order is otherwise limited to an amount not exceeding the consideration for the Goods paid by the Customer in respect of an order.
10.5 In relation to the Non-excludable Obligations (other than a guarantee as to title, encumbrances or quiet possession conferred by the Australian Consumer Law), except for Goods or services of a kind ordinarily acquired for personal, domestic or household use or consumption (in respect of which Sample Room's liability is not limited under these Terms and Conditions), Sample Room's liability to the Customer for a failure to comply with any Non-excludable Obligation is limited to the cost of replacing the Goods, supplying equivalent Goods, or payment of the cost of replacing the Goods or supplying equivalent Goods.
10.6 Unless the claim is by a consumer within the Australian Consumer Law, any claim by the Customer in respect of defective Goods or damaged Goods must be made in writing within 48 hours of the delivery of the Goods, unless a longer period is expressly agreed to by Sample Room in writing.
11. Force majeure
Sample Room shall not be liable for any failure or delay in supply or delivery of the Goods where such failure or delay in wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of Sample Room including, but not limited to, war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention, transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storm or tempest, theft, vandalism, riot, civil commotion or accident of any kind.
If the Customer fails to comply with any of these Terms and Conditions or being a natural person or persons commits any act of bankruptcy, or being a corporation passes a resolution for winding-up or liquidation (other than for the purposes of reorganisation or reconstruction) or administration or enters into any composition or arrangement with creditors or if a receiver or manager or administrator or controller is appointed for any property or assets of the Customer or becomes liable to be wound-up by reason of insolvency or if any petition is presented for its winding-up, or if a liquidator or provisional liquidator or administrator is appointed, Sample Room may, in addition to exercising all or any of its rights against the Customer, suspend any further deliveries and immediately recover possession of any Goods not paid for in accordance with these Terms and Conditions.
Other than in respect of Sample Room's obligations pursuant to clause 9.2 hereof Sample Room shall not be liable to accept any returned Goods but may in its absolute discretion accept the return of Goods, provided that such Goods shall only be accepted for return with the prior written approval of a duly authorised representative of Sample Room. Goods returned for credit pursuant to this clause will be subject to a handling and administration charge equivalent to 20% of the invoiced value of the returned Goods. Return freight and other expenses will be paid for by the Customer and no returns of special Goods will be accepted. Any returned Goods must be accompanied with the relevant invoice numbers.
14. Governing law
The Customer agrees that these Terms and Conditions shall be construed according to the laws of the State or Territory as Sample Room may in its sole discretion determine. Proceedings may be instituted in such State or Territory as Sample Room may in its sole discretion determine. Failing such determination, the Customer consents to any proceedings being instituted and heard by any appropriate Court sitting in the State of Victoria applying the laws of the State of Victoria.
15. Service of documents
The Customer agrees that service of any notices or Court documents may be affected by forwarding same by prepaid post or facsimile to the last known address of the Customer.
16. Statement of debt
A certificate signed by a director, secretary, financial controller or credit manager of Sample Room shall be prima facie evidence of the Amount Owing of the Customer to Sample Room at that time.
17. Consumer Guarantees
17.1 Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the services, you are entitled:
(1) to cancel your services contract with us; and
(2) to a refund for the unused portion, or to compensation for its reduced value.
17.2 You are also entitled to choose a refund or replacement for major failures with goods. Note, we are unable to receive returned medical products which have been used.
17.3 If a failure with the goods or a service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtained a refund of any unused portion. You are also entitled to be compensated for any other reasonable foreseeable loss or damage from a failure in the goods or service.