TERMS AND CONDITIONS
WILM GROUP Pty Ltd ACBN 69 630047219 trading as Global Food Machinery (“Seller”) and
These terms and conditions apply with respect to the sale of any goods or services (collectively “the Goods”) by the Seller from time to any person who places an order (“Buyer”) for the Goods. No variation modification or purported alternative provisions shall apply in place of these terms and conditions unless required by Law or as agreed to in writing signed by a director of the Seller.
1. DEFINITIONS AND INTERPRETATION
In these terms and conditions, unless context otherwise requires:
“Balance” means the Purchase Price less the Initial Deposit and less the Progress Payment (where applicable);
“Business Hours” means 9:00am until 5:00pm Monday to Friday, excluding Public Holidays;
“Delivery Date” means any date or dates of delivery of the Goods estimated by the Seller from time to time;
“Initial Deposit” means 50 percent of the Purchase Price or such other sum as may be agreed by the Seller in writing from time to time;
“Estimated Date of Production” means any date indicated in writing by the Seller as being the date on which production of the Goods shall commence. For the purpose of avoiding any uncertainty, the Seller makes no warranty as to the date on which the production of the Goods shall be completed;
“Progress Payment” means 30 percent of the Purchase Price or such other sum as may be agreed by the Seller in writing from time to time;
“Purchase Price means the amount (in Australian Dollars) payable (including variations) for goods and/or services as determined from time to time in accordance with the then current pricing of those goods and/or services by the Seller (unless otherwise agreed in writing by the Seller). The then current pricing of the goods and/or services shall, unless otherwise specified by the Seller, be exclusive of Goods and Services Tax (“GST”) and any estimated cost of delivery of the goods and/or services and the Purchase Price shall be increased to allow for and include GST and the actual delivery cost (including where indicated postage and handling). Where the Purchase Price includes installation and an estimate or quotations has been provided then that will be based on the known condition of the job site. The Seller may change the Purchase Price to reasonably account for any changes in the condition of the job site or where issues arise that had not been previously known or disclosed to the Seller.
2.1. The Buyer agrees to purchase the goods for the amount of the Purchase Price by electronic payment to the Seller by cleared funds to its account in full and without deduction or setoff.
2.2. The Buyer acknowledges the possibility of fraud and “man in the middle attacks” and agrees that it is the obligation of the Buyer to satisfy themselves as to the veracity of any cited bank account details and to undertake “two factor authentication” as payment to a third party will not constitute payment of the Purchase Price under clause 2.1.
2.3. The Buyer agrees pay the Seller the Purchase Price for the supply of goods on placing the order unless otherwise agreed in writing by the Seller. Production may (at the absolute discretion of the Seller) not commence until the Purchase Price has been paid.
2.4. Where the Seller is to provide installation or other services as well a providing goods then unless otherwise agreed in writing by the Seller, the Buyer will pay the Initial Deposit on placing the order, the Progress Payment at or prior to the earlier of two business days prior to installation or seven business days after notification that the goods are ready for installation and the Balance on or before the day of completion of the installation or other services set out in the invoice of the Seller.
2.5. The Seller shall notify the Buyer of the completion of production of goods.
2.6. Upon receiving notice of completion of production and prior to the Delivery Date, the Buyer shall pay the Balance to the Seller without set off or deduction.
2.7. Payment of the Deposit and Balance is to be made via electronic funds transfer to the account of the Seller.
2.8. Interest shall accrue on any money owning by the Buyer to the Seller and the sum of five per cent and the rate prescribed from time to time by the Penalty Interest Rates Act 1983 (Vic) (as amended or substituted from time to time) calculated on a daily outstanding basis from the Delivery Date.
2.9. If the Buyer has not paid the Purchase Price to the Seller by the Delivery Date then the Seller may at its absolute discretion:
2.9.1. For a period of time at its absolute discretion (and subject to storage costs set out in these terms and conditions) to await that payment without termination of the agreement for the purchase of the goods and/or services;
2.9.2. Retain for the benefit of the Seller any money received by it (including any Deposit);
2.9.3. Require payment of any storage fees payable under this agreement;
2.9.4. Retain possession and ownership of the goods and/or services; and
2.9.5. Terminate the agreement for the sale of the goods and/or services to the Buyer by written notice (including email or text message) whereupon the Balance together with any storage fees, interest and costs (including legal fees on a special or indemnity basis) reasonably included by the Seller shall be immediately payable on demand.
3. DELIVERY AND INSTALLATION
3.1. Delivery shall not occur until the Balance is received by the Seller.
3.2. Any Delivery Date is an estimate only. The Seller does not warrant that delivery shall occur by or before the Delivery Date.
3.3. Failure to deliver the goods and/or services by the Delivery Date does not constitute a breach of this agreement. The Seller shall not be liable for any loss whatsoever arising from or relating to a failure to deliver the goods and/or services by the Delivery Date.
3.4. Delivery shall occur during Business Hours unless otherwise agreed between the parties.
3.5. The fees for delivery are not included in the Purchase Price unless otherwise agreed between the parties and shall be charged in addition to the Purchase Price.
3.6. Where the Buyer fails to accept the goods and/or services at the time of delivery, the Buyer shall indemnify the Seller for the cost of each subsequent delivery attempt and pay a storage fee for the goods and/or services of 10% of the Purchase Price per month (or part month)
as a genuine pre-estimate of the Seller’s loss.
3.7. Where the Seller provides installation services then:
3.7.1. The Buyer agrees as a fundamental issue to provide a safe work place;
3.7.2. The Buyer will disclose to the Seller in writing before the date of installation all issues regarding to the site that may relate to or impact the installation and will ensure that to the extent applicable power, plumbing and Internet are in place and will notify the Seller if there are any other works taking place at the proposed time of installation;
3.7.3. The Seller or its staff or sub-contractors used in the installation may refrain from undertaking the installation for any reason including safety;
3.7.4. Time is not of the essence with regard to installation;
3.7.5. Changes to the scope of work relating to installation or other services provided by the Seller from the quotation or other documents shall attract reasonable additional charges; and
3.7.6. The Buyer shall prepare the site for installation as required by the Seller.
3.7.7. If the Seller attends the site for installation and the premises are not safe, do not have power or have not been prepared in accordance with the requirements of the Seller then the Seller shall not be required to proceed with the installation at that time and the Buyer shall pay a sum equal to one half the cost of the installation (by way of genuine pre-estimation of loss) for that attendance within seven days of provision of an invoice in addition to the cost of subsequent installation.
4. CERTIFICATE, WARRANTY, AND DOCUMENTATION
4.1. Certificate, warranty, and other relevant documentation will be provided to the Buyer after the final payment for the services has been received and cleared by the Seller. The Buyer acknowledges that they will not be entitled to receive these documents until full payment has been made in accordance with the agreed-upon terms and conditions.
5. ACCEPTANCE AND TERMINATION
5.1. The Seller may reject any order for goods and/or services without need for giving any reason.
5.2. No agreement exists between the parties until the latest of:
5.2.1. The Seller receives the Deposit (unless the Seller provides written confirmation that the order has been accepted); and
5.2.2. Written confirmation by the Seller that the order has been accepted or the Seller acts in reliance of the order in commencing production of the goods and/or services (whether or not indicated to the Buyer).
5.3. If the Buyer terminates this agreement on or after the Estimated Date of Production the Seller shall be entitled to retain the Deposit as a genuine pre-estimate of its loss.
5.4. The Seller may terminate this agreement at any time prior to delivery. If the Seller terminates this agreement, the Seller agrees to return to the Buyer any monies paid.
6. WARRANTIES AND LIMITATION OF LIABILITY
6.1. Nothing in this agreement limits the rights conferred upon the Buyer by consumer protection legislation including the Australian Consumer Law.
6.2. If and to the extent that any transaction attracts the operation of the Australian Consumer Law, then this clause shall apply. The Goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Buyer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Buyer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
6.3. To the extent that conditions and warranties are implied by law into this agreement, the parties agree that to the greatest extent permitted by law the liability of the Seller shall be limited to the Seller’s choice of:
(a) the replacement of the goods and/or services or the supply of equivalent goods and/or services;
(b) the repair of the goods; or
(c) a refund for the value of the goods and/or services.
6.4. Without limiting any other clause of this agreement, and to the maximum extent permitted by Law, the Seller will not be liable to the Buyer for any indirect, special or consequential damage including loss of profit.
6.5. Seller shall not be in breach of contract or liable on any other account including negligence for any action or omission arising from or as a result of an event or circumstances beyond the reasonable control of the Seller including act of God, war, terrorism, pandemic or epidemic, international trade disputes or embargos, strikes or other industrial actions (whether relating to the Seller or its Suppliers), failure of equipment or delays or impediments to supply of raw material and the sole remedy of the Buyer shall be to cancel the order for the goods and/or services. On cancellation, unless otherwise agreed by the Supplier, the deposit shall be retained by the Seller and the Buyer shall not be required to make any further payment or and the Seller shall not be required to deliver the applicable goods and/or services. The cancellation of an order is without prejudice to the Seller’s right to recover all sums owing to the Seller in respect of the other goods and/or services..
6.6. Global Food Machinery does not represent that it will review or provide advice in relation to plans/mechanical drawings and specifications provided by the Customer or their agent/contractor/engineer. Without limiting the generality of any other provision of these terms and conditions, the Buyer releases and indemnities and holds harmless the Seller from and against any liability arising from or as a result of all use of those plans and specifications.
6.7. In no circumstances shall the Seller be liable for any liability arising from or as a result of services provided by employees of the Buyer or by any other contractor of the Buyer.
6.8. The Buyer agrees that they will not disparage the Seller or its products in any media or review.
6.9. Subject to clause 5.1 and clause 5.2 above, the Seller makes no warranties about the fitness for purpose, quality or maintenance of the goods and/or services.
6.10. The Buyer agrees to release indemnify and hold harmless the Seller to the maximum extent permitted by law from and against any and all claims, demands, actions, liabilities, losses, costs and expenses (including but not limited to legal costs on an indemnity basis) arising from or as a result of:
(b) Late delivery;
(c) Damage to or arising from or as a result of the goods and/or services; and
(d) Damage or injury caused by or arising from or as a result of the goods and/or services to any property or persons.
6.11. The Seller shall not be held financially responsible for any costs associated with demolition or deconstruction on the installation site that may be required to facilitate the completion of the installation work according to the scope of work outlined in the invoice/quote. The responsibility for obtaining any necessary permits, covering demolition expenses, and coordinating any related work shall lie solely with Seller.
6.12. The Seller shall not be responsible for any additional costs or expenses incurred by the Buyer or third-party contractors during the installation process. Any unforeseen expenses, alterations, or adjustments to the project that result in extra costs shall be the sole responsibility of the Buyer.
7. TITLE AND PASSING OF RISK
7.1. Ownership of any goods shall remain with Seller until the Seller receives the Purchase Price from the Buyer.
7.2. Upon delivery of the goods and/or services to the Buyer, the Buyer agrees to accept all risk of loss or damage to goods, whether caused by the Buyer or not and the Buyer agrees to indemnify Seller against all claims, demands, suits and proceedings for loss or damage caused by or arising from the handling, transport, storage, display or use of the goods after the Buyer has taken possession of them. The Seller is not liable as a common carrier.
7.3. Where the Seller attempts delivery and the Buyer fails to accept delivery, risk transfers to the Buyer upon the attempted delivery.
7.4. If the Buyer does not pay the Purchase Price by the Delivery Date and while the Seller has not ended the purchase of the goods and/or services pursuant to these terms and conditions, then the Buyer accepts that the storage of goods is at the risk of the Buyer and that the Seller is not liable as bailor.
7.5. If the Buyer takes possession of part or all of goods prior to paying the entire price of those goods and/or services, then the Buyer grants a charge over all the Buyer’s land and also a security interest over all present and after acquired personal property (no exceptions) securing payment of any money owing to the Seller by the Buyer and any liability the Customer may incur to the Seller from, time to time. The security shall be capable of registration on the Personal Property Securities Register as an All-PAAP security interest. The Buyer accepts that the charge over land
may be caveatable in respect of any interest in land held by the Buyer, and the Buyer agrees that the costs of any registrations in respect of either or both securities may be added to the total price for the Goods. The Seller shall have rights regarding the charge over land and as if the Security Interest were a mortgage and as if sections 101. 104 – 110 and 114 of the Property Law Act 1958 (as amended or substituted from time to time and with all necessary changes being made) applied.
To the extent permitted by the Personal Property Securities Act 2010, the Buyer waives any right to notices under that Act.
8.1. If the Buyer requests variations to the terms of this agreement, or to the description of the goods and/or services, this request shall not be binding on the Seller unless the Seller agrees in writing, and the agreement of the Seller may be conditional upon the Purchase Price increasing accordingly.
8.2. Variations to the description of the goods and/or services may not be accepted by the Seller after production has commenced unless at its absolute and unfettered discretion it agrees in writing to do so and this may be conditional upon a variation of the Purchase Price.
9.1. The parties acknowledge that this agreement represents the whole agreement and that no oral statements made by the Seller or their representatives prior to this agreement form part of this agreement.
10. LAWS APPLICABLE
This agreement is governed by the laws of the State of Victoria. The parties submit to the jurisdiction of the Courts of Victoria. Notwithstanding the location of the Buyer, the parties acknowledge and agree that this contract arises in Mordialloc, Victoria.