1.1 In these terms and conditions, unless the context otherwise requires;
“Everhard” means Everhard Industries Pty Ltd. (ABN 41 009 690 859) and any company with Everhard as part of its name including the agents, employees, successors and assigned of those companies.
“Purchaser” means a person who buys or agrees to buy goods from Everhard and includes employees, agents, successors, administrators and assigns of the Purchaser
“Goods” means any item available for sale to the Purchaser by Everhard.
2.1 Payment is made when cash is received, or if payment is by cheque, when the cheque is cleared into the bank account of Everhard.
2.2 All goods shall be paid for in cash on or prior to delivery unless Everhard has agreed to supply goods on credit to the purchaser. In this case;
- Payment for goods and other amounts payable to Everhard is to be made within thirty (30) days of the last day of the month of invoice showing those amounts as owing;
- The purchaser named in the application for credit to Everhard shall be and remain liable for all amounts owing to Everhard in relation to any goods or services supplied on the basis of that application, notwithstanding any change in ownership or stricture of the Purchaser, until such time as a fresh application for credit in the name of the Purchaser as changed is submitted to and approved by Everhard.
- Amounts owing by the Purchaser to Everhard at any time must not exceed a limit to be determined by Everhard from time to time and advised to the Purchaser in writing. Everhard may revise this credit limit at any time for any reason.
- The Purchaser agrees to keep Everhard fully notified of all changes in name, address, structure and ownership
3.1 Unless otherwise agreed Everhard will deliver goods to an address specified by the Purchaser in such cases;
- The Purchaser shall pay all changes associated with delivery unless otherwise agreed;
- Delivery shall be deemed to occur upon the arrival of the goods at the agreed delivery address;
- Everhard’s responsibilities for delivery ceases at the kerb site of the delivery address, and in particular Everhard shall not be in any way responsible in relation to any delivery across land. If Everhard agrees, at the Purchaser’s request, to delivery across land, the Purchaser specifically acknowledges that such deliver is at the risk of the purchaser and Everhard shall not be liable for any costs or losses suffered by any person in connection with that delivery.
- The Purchaser shall be present at the agreed place for delivery, if not present Everhard may unload the goods at the place in which case it will not be responsible for any claims, costs or losses arising thereafter.
3.2 A quantity description, date, time and place of delivery of goods as indicated on Everhard’s invoice or delivery docket or copies thereof shall be conclusive evidence of the quantity, description date, time and place of delivery of goods.
3.3 In the event that a delivery date is nominated by the Purchaser, Everhard shall take reasonable steps to achieve delivery on or about that date. However no promise is given that the goods will be available on that date, notwithstanding any purported terms to that effect in any contract for delivery of goods and Everhard shall not be liable for any loss (including consequential loss) for failure or delay in delivery. In no case shall Everhard be liable for any amount payable by the Purchaser to a third party as a result of a failure of delay by Everhard due to any cause whatsoever.
3.4 In the event Everhard elects to accept a return of goods supplied, it will credit the Purchaser the price of the goods, less delivery, handling and storage charges.
3.5 Delivery vehicles waiting time on site will be charged as per current price list or as advised at time of order placement.
4.1 The Purchaser shall inspect the goods immediately upon delivery, and carry out any tests that a prudent purchaser would carry out. Any alleged deficiency or irregularity in quality or description, or any faults or defects must be notified to Everhard in writing within 7 (7) working days of delivery.
4.2 If no notice is given by the Purchaser to Everhard in accordance with clause 4.1 above, the Purchaser shall be deemed to have accepted that the goods are strictly in accordance with the contract for supply of goods as to description and quality, are not faulty, comply with all relevant specifications and standards, and are of merchantable quality and suitable for the purpose for which they are designed, and the purchaser shall lose any right (or alleged right) to reject the goods or claim any remedy whatsoever (including damages) against Everhard in relation to any of the above, and the Purchaser will indemnity Everhard against any claim made by any person arising out of goods accepted under this clause, whether or not such goods are damaged or defective.
4.3 A 15% handling fee may be charged for the return of goods which have been incorrectly ordered or are no longer required by the customer.
5. Warranties and Exclusions
5.1 Except as otherwise expressly provided by the Trade Practices Act 1974, or other legislation, all conditions, warranties and representations not expressly made in writing in relation to a particular order of particular goods, or appearing in these Terms and Conditions, are hereby expressly negated and excluded.
5.2 The Purchaser acknowledges that otherwise than contained herein, no warranty, promise or representation has been made regarding the quantity, fitness or use, suitability or merchantability of goods for any purpose whatsoever. The Purchaser further acknowledges that any advice, information on or serviced provided by suitability or merchantability for the purpose required the Purchaser has entirely upon its own knowledge, skill and judgement and has relied upon the skill and judgement of Everhard.
5.3 Descriptions of goods contained in material produced by Everhard are given as a general guide only and do not form part of the description of goods. Everhard shall not be liable for any mis description, omission or inaccuracy in such material.
5.4 Any liability of Everhard with respect to goods shall arise in accordance with these Terms and Conditions only and shall be limited to the replacement of goods, the repair of the goods, the payment of the costs of replacing the goods or the payment of the cost of repairing the goods as Everhard may elect and in particular Everhard shall not be liable for any consequential loss whatsoever.
6. Property and Risk
6.1 The risk in the goods shall pass to the Purchaser upon delivery. The Purchaser shall insure the goods against loss or damage from this time.
6.2 Notwithstanding the passing of risk all goods delivered by Everhard to the Purchaser remain the property of Everhard until:
- All goods supplied by Everhard to the Purchaser have been paid for in full and;
- All other in debtless of the Purchaser to Everhard on any account whatsoever has been satisfied.
Until that time the Purchaser may sell the goods in the ordinary course of its business as agent for Everhard, and the proceeds shall be held in trust for and as the property of Everhard. Prior to any such sale, the Purchaser shall hold possession of the goods for and on behalf of and as bailee for Everhard and not in its own behalf, and shall return the goods to Everhard on demand.
6.3 The Purchaser shall provide access to Everhard to the Purchasers premises at any reasonable time to enable Everhard to enforce clause 6.2 above.
7.1 In the event that the Purchaser or a company related to the Purchaser fails or neglects to pay Everhard for goods in strict accordance with these Terms and Conditions or ceases or threatens to cease to conduct its business in the normal manner then an Event of Default has occurred.
7.2 When an Event of Default has occurred then;
- The full price of all goods and services supplied to the Purchaser by Everhard and all other amounts payable by the Purchaser to Everhard shall immediately become due and owing to Everhard and payable upon demand.
- Any monies held by Everhard to the credit of the Purchaser shall be forfeited to Everhard.
- Everhard may without notice enter onto the premises where goods are stored by the Purchaser to recover possession of goods in which title has not passed in accordance with clause 6.2.
- The purchaser acknowledges that if it should mix the goods with other products, then the right of Everhard to take possession of the goods extends to the right to take possession of the new products provided that the goods are still capable of separate identification.
- In order to secure payment of all monies for which the Purchaser may become liable to pay Everhard hereunder, the purchaser hereby changes a beneficial owner all of the purchasers freehold and leasehold interest in land both in which the purchaser is now possessed and which may hereafter acquire, along withal of the purchasers personal property both presently owned by the purchaser and that which the purchaser may hereafter acquire. The purchaser further agrees that immediately upon demand being made upon the purchaser by Everhard the purchaser shall deliver to Everhard such Bill of Mortgage or Bill of Encumbrance, or such other instrument of security or consent to caveat as Everhard may require, duly executed or consented to by the purchaser in the event that the purchaser should neglect to fail to deliver the request instrument or security, the purchaser hereby appoints Everhard to be the purchaser’s lawful attorney for the purpose of executing and registering such instruments.
- Everhard may treat the Event of Default as a repudiation of any contract for the supply of goods by the Purchaser, and terminate any such contract.
7.3 For the avoidance of doubt, the Supplier’s interest constitutes a “purchase money security interest” pursuant to the Personal Property Securities Act 2009.