INCITE FIRE PTY LIMITED (ACN 089 243 989)

INTERPRETATION

1 In these conditions:
1.1 ‘Buyer' means the buyer of any goods including any specified overleaf.
1.2 ‘Conditions' or ‘these conditions' means these Terms and Conditions of Sale.
1.3 ‘Costs' includes Goods and Services Tax (GST) payable as a result of any taxable supply (including the release of any obligation arising under these conditions by the Seller to the Buyer) or as a result of an order made in any proceedings between the Seller and the Buyer.
1.4 ‘Goods' means any products and services specified including any overleaf.
1.5 ‘Seller' means INCITE FIRE Pty Limited (ACN 089 243 989) and its assigns or successors and each corporation (within the meaning of that term in Section 9 of the Corporations Law) which now or hereafter is or shall be deemed to be related to the Seller (within the meaning of Section 50 of the Corporations Law).
1.6 Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Trade Practices Act 1974) and which by law cannot be excluded, restricted or modified.

GENERAL

2 These conditions (which shall only be waived or varied in writing signed by the Seller) shall prevail over all conditions of the Buyer's order to the extent of any inconsistency.

TERMS OF SALE

3 The goods and all other products sold by the Seller are sold on these terms and conditions.
4 Where any payment from the Buyer to the Seller is overdue the Seller may without notice demand from the Buyer payment of all amounts due for any goods sold by the Seller to the Buyer.

SAMPLES, VARIANCES, ETC

5 All samples, specifications, drawings, and particulars of dimensions, gauge, shade, colour or quality submitted to the Seller are approximate only and any deviation shall not be taken to vitiate any contract with the Seller or form grounds for any claim against the Seller.

DELIVERY

6 Where the Seller arranges delivery it is as agent of the Buyer and at the Buyer's risk and in that circumstance the sale is to be treated as if it had been made at the Seller's premises.
7 The delivery times made known to the Buyer are estimates only and Seller shall not be liable for to late delivery or non-delivery and under no circumstances shall the Seller be liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery of the goods.

LOSS OR DAMAGE IN TRANSIT

8 The Seller is not responsible for any loss or damage to goods in transit.

SELLER'S LIABILITIES

9 The Seller shall not be liable for and the Buyer releases the Seller from any claims in respect of faulty or defective design of any goods supplied unless such design has been wholly prepared by the Seller and the responsibility for any claim has been specifically accepted by the Seller in writing and in any event the Seller's liability hereunder shall be strictly limited to the replacement of defective goods in accordance with these conditions.
10 Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are hereby expressly excluded. The Seller shall not be liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation, materials or workmanship or otherwise are hereby expressly excluded and the Seller shall not be liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the goods or arising out of the Seller's negligence or in any way whatsoever.
11 The Buyer acknowledges its duty to inspect the entire order to ensure its satisfaction with the order.
12 The Seller's liability for a breach of a condition or warranty implied by Division 2 of Pt V of the Trade Practices Act 1974 (other than s 69) is hereby limited to:-
12.1 in the case of goods, any one or more of the following:
12.1.1 the replacement of the goods or the supply of equivalent goods;
12.1.2 the repair of the goods;
12.1.3 the payment of the cost of replacing the goods or of acquiring equivalent goods;
12.1.4 the payment of the cost of having the goods repaired; or
12.2 in the case of services:
12.2.1 the supplying of the services again; or
12.2.2 the payment of the cost of having the services supplied again.
12.3 The Seller's liability under s 74H of the Trade Practices Act 1975 is expressly limited to a liability to pay to the Buyer an amount equal to:
12.3.1 the cost of replacing the goods;
12.3.2 the cost of obtaining equivalent goods; or
12.3.3 the cost of having the goods repaired, whichever is the lowest amount.

PRICES

13 Unless otherwise stated all prices quoted by the Seller are exclusive of GST. Prices quoted are those ruling at the date of issue of quotation and are based on rates of freight, insurance, customs duties, currency exchange, shipping expenses, sorting and stacking charges, cartage, rates of weights, cost of materials and other charges affecting the cost of supply ruling on the date the quotation is made and any alterations thereto either before acceptance of or during the currency of the contract shall be to the Buyer's account. Where no prices have been quoted by the Seller, the price to be charged is that ruling on the date of delivery of the goods. The Seller is at liberty to change its prices without notice to the Buyer.

PAYMENT

14 The Buyer must pay the net invoice amount together with all Costs to the Seller at its address for payment, without demand, within 30 days after delivery of the goods in respect of which an invoice was raised by the Seller.
15 By way of liquidated damages for breach of the payment obligation in these conditions, the Buyer agrees to pay compound interest on the net invoice amount and all Costs calculated from the date of invoice at the rates set from time to time by section 94 of the Supreme Court Act, 1970 plus 1/8th of that rate.
16 Where the Buyer pays the purchase price in accordance with these conditions the Seller accepts that sum in full satisfaction of the Buyer's obligation. The Buyer acknowledges that only payments which reach the Seller at its stated address for payment within the month following the month in which the goods were delivered or such other terms of payment specified in writing by the Seller shall be entitled to receive the benefit of this concession.
17 The Buyer agrees to pay the Seller's legal costs as between solicitor and own client for all legal actions between the Seller and the Buyer in regard to the failure of the Buyer to comply with these conditions.

RIGHTS IN RELATION TO GOODS

18 Seller reserves the following rights in relation to the goods until all accounts owed by the Buyer to the Seller are fully paid:
18.1 legal ownership of the goods;
18.2 to enter the Buyer's premises (or the premises of any associated company or agent where the goods are located) without liability for trespass or any resulting damage and retake possession of the goods irrespective of the manner of their attachment to any realty; and
18.3 to keep or resell any goods repossessed pursuant to (2) above.

TITLE TO GOODS

19 Property in each unit of the goods shall remain with Seller until all monies owing to Seller on any account whatsoever have been paid (“the Debts"). The Buyer shall in the meantime take custody of the goods and retain them as Seller’s trustee, fiduciary agent and bailee and shall store the goods in such a manner that they are readily distinguishable from other goods owned by the Buyer or other persons (“the Other Goods”). Pending resale or utilisation in any manufacturing or other process, the goods are to be kept separate from the Other Goods and properly marked, stored, protected and insured.
19.1 The Buyer may resell the goods, but only as fiduciary agent and trustee for the Seller, by way of bona fide sale at full market value and in the ordinary course of its business.
19.2 Until the Debts have been paid in full the Buyer shall hold such part of the money it receives from:-
19.2.1 any sub-sale of the goods under the immediately preceding subclause; and
19.2.2 the proceeds of any sale of any products into which the goods have been mixed or converted by any process
as equals the amount of the Debts at the time the money is received (“the Proceeds”) as bailee and fiduciary agent and trustee for the Seller.
19.3 The Buyer expressly acknowledges that it is bound by such fiduciary obligation and acknowledges that:
19.3.1 it must hold the Proceeds on trust for the Seller.
19.3.2 it must place the whole of the Proceeds in an account separate from its own moneys (“the Proceeds Account”).
19.3.3 it must maintain the Proceeds Account separate from its own moneys at all times.
19.3.4 it must maintain proper records for the Proceeds Account.
19.3.5 it must not assign or encumber the Proceeds or do any other act in derogation of the Seller’s legal or beneficial interests.
19.3.6 it must account to the Seller on demand for all moneys standing to the credit of such account;
19.3.7 the Seller may appropriate payments to such goods and accounts as it thinks fit, notwithstanding any contrary appropriation by the Buyer;
19.3.8 for the purposes of identification of different consignments of goods purchased from Seller and receipt of Proceeds, the Buyer agrees that the principle of “Last In, First Out” shall be applied to any items which cannot be distinguished.
19.3.9 receipt by the Buyer of payment for the sale of any products into which the goods have been mixed or converted by any process shall be treated as evidence that it has received Proceeds; and
19.3.10 the Seller may trace the Proceeds in equity.

BUYER'S PROPERTY

20 Any property of the Buyer under the Seller's custody or control shall be entirely at the Buyer's risk as regards loss or damage caused to the property or by it. The Buyer expressly grants to the Seller such rights of sale as would arise if the Seller had displayed a notice under the Disposal of Uncollected Goods Act, whether or not the Seller had displayed such a notice.

STORAGE

21 The Seller reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Buyer within fourteen days after a request by the Seller for such information.

GOODS SOLD

22 All goods to be supplied by Seller shall be as described on the purchase order agreed by the Seller and the Buyer and the description on such purchase order modified as so agreed shall prevail over all other descriptions including any Buyer's specification or enquiry. The goods supplied are not designed or adapted for use in adverse industrial atmosphere or weather or abnormal operating conditions of any kind.

CANCELLATION AND RETURNS

23 No order may be cancelled except with consent in writing and on terms which will indemnify the Seller against all losses.
24 Goods returned for credit MUST be returned in their original state (final discretion rests with the Seller) including all packaging within 3 months from invoice date. Custom product and special orders cannot be returned for credit. All goods returned for credit will incur a 20% re-stocking fee (exclusive of GST).

PLACE OF CONTRACT

25 The contract for the sale of the goods is made in the State in which the sale originates and the parties agree to submit all disputes arising between them to the courts of such state at any court competent to hear appeals therefrom.

NO WAIVER

26 The failure of any party to enforce the provisions of this agreement or to exercise any rights expressed in this agreement shall not be a waiver of such provisions or rights and shall not affect the enforcement of this agreement. The exercise by any party of any of its rights expressed in this agreement shall not preclude or prejudice such party from exercising the same or any other rights it may have irrespective of any previous action taken by that party.

FORCE MAJEURE

27 Where a party is unable, wholly or in part, by reason of an act of God, strike, lockout or other interference with work, war declared or undeclared, blockade, disturbance, lightning, fire, earthquake, storm, flood, explosion, governmental or quasi-governmental restraint, expropriation prohibition intervention direct or embargo, unavailability or delay in availability of equipment or transport, inability or delay in obtaining governmental or quasi-governmental approvals consents permits licences authorities or allocations, and any other cause whether of the kind specifically enumerated above or otherwise which is not reasonably within the control of the party affect (`force majeure'), to carry out any obligation under this agreement and that party:
27.1 gives the other party prompt notice of that force majeure with reasonably full particulars thereof, and, insofar as known, the probable extent of which it will be unable to perform or be delayed in performing that obligation; and
27.2 uses all possible diligence to remove that force majeure as quickly as possible;
that obligation is suspended so far as it is affected by force majeure during the continuance thereof provided that;
27.3 an obligation to pay money is never excused by force majeure.
27.4 the requirement that any force majeure shall be removed with all possible diligence shall not require the settlement of strikes, lockouts or other labour disputes, or claims or demands by any government on terms contrary to the wishes of the party affected.

EXCLUSION OF NEGLIGENCE

28 The Seller shall not be liable to the Buyer in contract or in tort arising out of, or in connection with, or relating to, the performance of the goods or any such breach of these conditions or of any fact, matter or thing relating to the goods or error (whether negligent of a breach of contract or not) in information supplied to the Buyer or a user before or after the date of the Buyer's or user's use of the goods.

SEVERANCE

29 If any of the terms or conditions is deemed to be unlawful or unenforceable, such term or condition shall be severed and all other terms and conditions shall remain in force.