Terms of Trade
Goods are sold and supplied by Fluidflo on these Terms of Trade unless otherwise expressly agreed in writing between Fluidflo and the Purchaser. 1. Definitions & Interpretation 1.1 In these Terms, except insofar as the context or subject-matter otherwise indicates or requires:
"Agreement" means these Terms of Trade, the Account Application and any variations thereof in relation to a Credit Account;
"Account Application" means the application by a Purchaser for approval for a Credit Account with Fluidflo;
"Credit Account" means an Account Application approved by Fluidflo for the sale of goods by Fluidflo to the Purchaser;
"Fluidflo"means Fluidflo Pty Ltd ABN 48 101 183 091;
"Goods" means the goods supplied by Fluidflo to the Purchaser;
"month" means calendar month;
"Purchaser" means the person or business approved by Fluidflo to purchase Fluidflo Goods; and
"Terms of Trade" means these Terms of Trade; and
"Third Party Goods" means goods manufactured by third party manufacturers or suppliers, distributed by Fluidflo or sold by Fluidflo as agent of the third party. 1.2 In the interpretation of these terms, unless specified to the contrary:
(a) time is of the essence;
(b) words importing the singular include the plural and vice versa;
(c) words importing any gender include all other genders;
(d) a reference to a natural person includes a company or other corporate body and vice versa;
(e) a reference to any legislation, regulation, code or local law includes any modification, re-enactment or substitution of it;
(f) the obligations on the part of a Purchaser who is a natural person includes his heirs, executors, administrators and assigns; and
(g) the obligations on the part of a Purchaser which is a company or other corporate body includes its successors and assigns. 1.3 Any obligation imposed by these Terms on a Purchaser comprised of two or more persons (whether natural, corporate or a combination of the two) binds them jointly and each of them severally. 1.4 Clause headings are for ease of reference only and are not intended to affect the construction or interpretation of these Terms. 1.5 If the time for performing any obligation under these Terms expires on a non-Business Day, then time is extended until the next Business Day. 1.6 A waiver by Fluidflo of a default by the Purchaser under these Terms will not constitute a waiver of another default of the same or any other provision of these terms. 1.7 In the event that any portion of these Terms of Trade are held to be unenforceable, the unenforceable portion shall be severed and the remainder of the provisions shall remain in full force and effect. 1.8 These Terms embody the entire agreement and understanding between the parties concerning its subject matter, and succeeds and cancels all other agreements, understandings and representations concerning the subject matter of these Terms. 1.9 These Terms can be varied by Fluidflo at any time, provided written notice of the variation is given to the Purchaser, with such variation to apply to all orders and quotations delivered after the date of notification. 1.10 These Terms are to be governed by and construed in accordance with the laws of the State of Victoria and the parties submit to the exclusive jurisdiction of the state and federal courts located in Victoria. 2. Terms of Trade 2.1 These Terms of Trade apply to and form part of any contract for the sale of Goods by Fluidflo to the Purchaser. Orders are only accepted upon and subject to these Terms of Trade. 2.2 Any qualification, addition or variation ("change") of these Terms of Trade which appear on the Purchaser's order shall not form part of the contract between Fluidflo and the Purchaser unless such change appears on the face of the quotation duly approved by an authorized person of Fluidflo or is otherwise confirmed by Fluidflo in writing. 2.3 All Goods must be paid for before dispatch except where a Credit account has been approved for a Purchaser. 3. Pricing 3.1 Goods are invoiced at the prices ruling on the date of delivery. All prices quoted are in Australian dollars and are exclusive of:
(a) Taxes (including GST) and duties, and
(b) Any delivery charges or surcharge, or both. 3.2 Any tax or other impost on the production, sale or shipment of any Goods sold by Fluidflo now imposed or hereafter becoming effective shall be added to the price quoted and shall be paid by the Purchaser to Fluidflo. 3.3 Any delivery charges or surcharge may be charged to the Purchaser by Fluidflo in its absolute discretion. 3.4 Any orders placed by the Purchaser under the value of a $150.00 will attract a handling charge of $25.00 Pricing is subject to variation without notice. 4. Delivery 4.1 Fluidflo shall use its best endeavor's to deliver the Goods to the Purchaser on or before the estimated delivery date but Fluidflo is under no liability whatsoever for any failure or delay in the delivery of the Goods unless Fluidflo has given a written guarantee of delivery specifying agreed liquidated damages for late delivery and a loss has actually been suffered by the Purchaser. 4.2 Fluidflo reserves the right to deliver any one or more consignments as part delivery with each consignment to be paid for in accordance with these Terms of Trade. 4.3 Goods ordered by Purchaser shall be dispatched by Fluidflo to the Purchaser at the Purchaser's usual place of business. 4.4 Risk of any loss or damage to the Goods from whatever cause shall be borne by the Purchaser from the time the Goods are delivered to the Purchaser. 4.5 The Purchaser must notify Fluidflo of any damage to Goods or short delivery by phone or writing within 24 hours of delivery failing which the Purchaser will cease to have a claim for the damage or short delivery. 5. Returns 5.1 Goods will not be accepted for return for credit without the prior approval of Fluidflo. Non standard or specially manufactured Goods are not returnable. 5.2 Fluidflo reserves the right to impose a surcharge, of up to 20 per cent, of the price of any Goods returned. 5.3 Fluidflo may in its absolute discretion require the Purchaser to pay any charge, levy or tax associated with the return of Goods including, but not limited to, freight costs. 5.4 Any claim in respect of faulty or defective Goods must be made by the Purchaser within 7 working days of the delivery of the Goods failing which the Purchaser will cease to have a claim for the faulty or defective Goods. 6. Limitation of Liability 6.1 Subject to these Terms of Trade and any express warranties given by Fluidflo and to the extent permitted by law, Fluidflo excludes all statutory or implied conditions and warranties and any other liability it may have to the Purchaser (including liability for indirect or consequential loss) that may arise under statute or at law including without limitation for breach of contract, in tort (including negligence) or under any other cause of action. 6.2 Subject to these Terms of Trade and any express warranties given by Fluidflo and to the extent permitted by law, Fluidflo limits its liability under any condition or warranty which cannot be legally excluded in relation to the supply of Goods to: (a) replacing the Goods or supplying equivalent Goods again;
(b) repairing the Goods;
(c) paying the cost of replacing the Goods or supplying equivalent Goods again; or
(d) paying the cost of having Goods repaired. 7. Warranties In respect of Third Party Goods, Fluidflo assigns the benefit of any manufacturer's warranty given by the manufacturer of the Goods only and itself gives no warranty. 8. Fitness for Purpose The Purchaser acknowledges that it has made due inquiry and relies on its own skill and judgment when deciding whether the product is fit for purpose. 9. Third Party's Products 9.1. Information published by Fluidflo about Third Party Goods has either been supplied by the manufacturer of those Goods, obtained from the manufacturer's brochures and advertising material or supplied or otherwise obtained from that third party. Fluidflo will not be liable for any losses or damage, either directly or indirectly incurred by the use of, or reliance upon the information provided therein or for any errors, omissions or inaccuracies in the information provided. All information referring to Third Party Goods should be specifically confirmed with Fluidflo or the supplier concerned. 9.2. All information used to describe Fluidflo replacement Goods may include codes and descriptions relating to Third Party Goods. The Purchaser acknowledges that these codes and descriptions are included for reference only and unless specifically stated as being Third Party Goods are Fluidflo replacements parts. Fluidflo is not liable for any damages or cost as a result of reliance of the information or specifications disclosed. 10. Title and Property in Goods 10.1 Title to and ownership of and property in the Goods shall pass to the Purchaser only upon Fluidflo receiving payment in clear funds of the full purchase price and any freight charges, taxes and interest or other monies due and while the Goods remain the property of Fluidflo the Purchaser holds the Goods on trust for Fluidflo in terms of these Terms of Trade and the Purchaser shall store or keep the Goods in a manner which clearly identifies the Goods as the property of Fluidflo. 10.2 Until the Purchaser pays all amounts it owes to Fluidflo:
(a) the Purchaser must keep all Goods insured against theft, damage and destruction (and if the Purchaser fails to insure the Goods, Fluidflo may do so and invoice the Purchaser for the cost of insurance);
(b) Fluidflo may enter premises where the Goods are stored to inspect them on reasonable notice; and
(c) the Purchaser acknowledges that it holds the Goods as Fluidflo's bailee. 10.3 The Purchaser may on-sell the Goods prior to payment in full of the purchase price as agent for Fluidflo provided that the proceeds received from the on-sale are held on trust for Fluidflo until payment in full of the purchase price and are not mixed with other funds of the Purchaser until the purchase price is paid to Fluidflo. The Purchaser agrees to indemnify Fluidflo on a full indemnity basis and hold Fluidflo harmless from liability for any loss damage or cost arising from any inaccurate or incomplete representations to third parties. 10.4 If the Purchaser does not pay for any goods on the due date Fluidflo is irrevocably authorised by the Purchaser to enter the Purchaser's premises (or any premises under the control of the Purchaser or as agent of the Purchaser if the goods are stored at such premises) and use reasonable force to take possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Purchaser or anyone claiming through the Purchaser whatsoever. 10.5 The Purchaser acknowledges that Fluidflo holds a security interest capable of registration pursuant to the Personal Property Securities Act 2009 ("PPSA") in all goods including all present and after-acquired goods which have not been paid for. The Purchaser further acknowledges that the security interest will continue until Fluidflo gives a final release in relation to the secured goods. 10.6 The Purchaser acknowledges that Fluidflo will take all necessary steps to register its security interest under the PPSA, and hereby consents to Fluidflo doing so. The Purchaser further undertakes to promptly provide any information and do all things as required by Fluidflo to enable Fluidflo to perfect its security interest in the goods. 10.7 The Purchaser acknowledges that the goods constitute commercial property and hereby waives its right to receive notification from Fluidflo of the registration of the security interest pursuant to section 157(3) of the PPSA. 11. Force Majeure Without prejudice to any other provision hereof Fluidflo is not be liable for any failure to fulfill any terms of this Agreement if such fulfillment is delayed, hindered or prevented by any circumstances not within Fluidflo 's direct control including without limiting the generality of the foregoing strikes or lock-outs, material shortages. Fluidflo 's suppliers failure to supply, labour disputes, war, hostilities or the threat or apprehension thereof or compliance with any order or request of any competent government authority or department or court of law.
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