Terms and Conditions of Trade
(a) “Customer” means the customer, any person acting on behalf of or with the authority of the customer, or any person purchasing Goods from Eco Living 2022 Ltd;
(b) “Default” means each of the events set out in clause 12.1;
(c) “Goods” means all goods and products supplied by Eco Living 2022 Ltd to the Customer from time to time and includes all of the Customer’s present and after-acquired goods that Eco Living 2022 Ltd performs work on or which incorporate materials supplied by Armour Safety;
(d) “Price” means the cost of the Goods as determined in accordance with clause 4.1; and
(e) “Eco Living 2022 Ltd” means Eco Living 2022 Ltd, including employees, contractors and agents thereof, and its successors and assigns. The Goods are supplied on these terms and conditions of trade. No variation of these terms and conditions of trade is permitted unless Eco Living 2022 Ltd has agreed in writing to such variation. These terms and conditions of trade prevail over the terms of any purchase order or any other terms of contract submitted by the Customer.
(a) Subject to clause 2.2, the quotation shall be valid for twenty-one (21) days from the date of issue and thereafter shall be deemed to be withdrawn;
(b) The quotation shall be exclusive of GST unless specifically stated otherwise;
(c) Only Goods itemised in the quotation are included in the contract. Goods not itemised shall be in addition to the quoted price; and
(d) Eco Living 2022 Ltd reserves the right to alter the quotation because of circumstances beyond its control (including any changes in exchange rates). Eco Living 2022 Ltd reserves the right to withdraw a quotation at any time.
(a) Subject to clauses 2.2 and 4.2, the Price stated on Eco Living 2022 Ltd’s quotation; or
(b) If there is no quotation, the cost of the Goods calculated using Eco Living 2022 Ltd’s prices current at the time of invoice. The Price is based on rates and conditions at the time of issue of the relevant quotation (if any). Any increase in the cost of labour or materials thereafter may be charged at Eco Living 2022 Ltd’s sole discretion and Eco Living 2022 Ltd may increase the Price accordingly.
Eco Living 2022 Ltd reserves the right to require payment of a deposit before undertaking any work or supplying any Goods.
Payment is to be made by the Customer to Eco Living 2022 Ltd in full on or before the 20th day of the month following the date of invoice. Time for payment shall be of the essence.
The Customer will make all payments due to Eco Living 2022 Ltd in full without deduction or set off by way of cash, cheque, bank cheque, direct credit, or by any other method agreed by Eco Living 2022 Ltd. Receipt by Eco Living 2022 Ltd of any form of payment other than cash or bank cheque shall not be deemed to be payment until that form of payment has been honoured or cleared.
Eco Living 2022 Ltd may in its absolute discretion allocate any payment received from the Customer towards any invoice that Eco Living 2022 Ltd determines and may do so at the time of receipt or at any time afterwards, and on Default may reallocate any payments previously received and allocated. In the absence of any payment allocation by Eco Living 2022 Ltd, payment shall be deemed to be allocated in such manner as preserves to the greatest extent possible Eco Living 2022 Ltd’s purchase money security interest in the Goods under clause 7.1.
Where the Customer arranges for a carrier to collect the Goods, delivery of the Goods will be deemed complete when they are collected from Eco Living 2022 Ltd by the relevant carrier.
The Customer will accept responsibility to ensure reasonable on-site access is available for delivery of Goods.
Any delivery times specified by Eco Living 2022 Ltd shall be approximate only and Eco Living 2022 Ltd shall not be liable for any loss or damage suffered or incurred by the Customer or by any third party as a result of any delay by Eco Living 2022 Ltd in delivering the Goods. The time agreed for delivery shall not be of the essence.
If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Eco Living 2022 Ltd is entitled to receive all insurance proceeds payable in respect of the Goods.
Title in any Goods passes to the Customer only when the Customer has made payment in full for all Goods and of all other sums due to Eco Living 2022 Ltd by the Customer on any account whatsoever. Until all sums due to Eco Living 2022 Ltd have been paid in full Armour Safety has a security interest in all Goods.
Without limitation to any other rights afforded to Eco Living 2022 Ltd under the PPSA, until the Customer has paid for the Goods in full:
(a) The Goods shall be held as fiduciary bailee for and on behalf of Eco Living 2022 Ltd;
(b) If the Goods are sold by the Customer before payment in full to Eco Living 2022 Ltd, then the proceeds of sale (less any mark-up imposed by the Customer on such sale) shall be held in trust by the Customer for Eco Living 2022 Ltd in a separate bank account;
(c) The Goods shall be stored in such a way to ensure that they are identifiable as the separate property of Eco Living 2022 Ltd. If the Goods are attached, fixed or incorporated into any property of the Customer or any third person, by way of any manufacturing or assembly process by the Customer or any third party, title to the Goods shall remain with Eco Living 2022 Ltd until payment has been made in full, and where those Goods are mixed with other property so as to be part of or constituent of any
new products, title to those new products shall be deemed to be assigned by the Customer to Eco Living 2022 Ltd as security for the full satisfaction by the Customer of all amounts owed by the Customer to Eco Living 2022 Ltd.
The Customer hereby irrevocably grants Eco Living 2022 Ltd and its agents authority to enter any premises owned or occupied by the Customer or on which Goods are situated at any reasonable time after Default by the Customer or before Default if Eco Living 2022 Ltd believes that a Default is likely and to remove and repossess any Goods and any other property to which the Goods are attached or in which the Goods are incorporated. Eco Living 2022 Ltd shall not be liable for any costs, damages, expenses or losses suffered or incurred by the Customer or any third party as a result of this action, nor will Eco Living 2022 Ltd be liable to the Customer or such third parties in contract, tort or otherwise in any way unless by statue such liability cannot be excluded. Eco Living 2022 Ltd may (at its sole option) either resell any repossessed Goods and credit the Customer’s account with the net proceeds of sale (after deduction of all repossession, storage and selling costs) or may retain any repossessed Goods and credit the Customer’s account with the invoice value thereof less such sum as Eco Living 2022 Ltd reasonably determines on account of wear and tear, depreciation, obsolescence, loss or other costs.
The Customer undertakes to sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which Eco Living 2022 Ltd may reasonably require to register a financing statement or financing change statement on the Personal Property Securities Register in respect of the PMSI granted to Eco Products Ltd under clause 7.1.
The Customer waives its rights as a debtor under sections 114(1) (A), 116, 120(2), 121, 125, 126, 127, 129, 131, and 132 of the PPSA.
Unless otherwise agreed to in writing by Eco Living 2022 Ltd, the Customer waives its right to receive verification statements and financing change statements under the PPSA.
The Customer shall inspect the Goods on delivery and shall within seven (7) days notify Eco Living 2022 Ltd of any alleged defect, shortage in quantity, damage or failure to comply with any quotation or description agreed in writing by Eco Living 2022 Ltd. The Customer shall afford Eco Living 2022 Ltd an opportunity to inspect the Goods within a reasonable time of such notification.
If the Customer shall fail to comply with clause 8.1, the Goods shall be deemed to be free from any defect, damage or failure to comply with any description or quotation.
For Goods which Eco Living 2022 Ltd has agreed in writing that the Customer is entitled to reject, Eco Living 2022 Ltd’s liability is limited to either (at Eco Living 2022 Ltd’s discretion) replacing or repairing the Goods.
Returns of Goods will only be accepted by Eco Living 2022 Ltd if:
Eco Living 2022 Ltd warrants that the Goods will comply with any specifications confirmed in writing by Eco Living 2022 Ltd. Other than the foregoing and any other warranty expressly recorded in writing and signed by or on behalf of Eco Living 2022 Ltd, Eco Living 2022 Ltd makes no other warranty or representation in relation to the Goods and the Customer acknowledges and agrees that it is relying on its own judgment regarding the nature, quality and condition of Goods purchased from Eco Living 2022 Ltd.
To the extent legally permitted:
In the event of any breach of these terms and conditions of trade by Eco Living 2022 Ltd the remedies of the Customer shall be limited to damages. Under no circumstances shall the liability of Eco Living 2022 Ltd exceed the Price of the Goods paid by the Customer.
Other than to the extent that Eco Living 2022 Ltd is expressly liable for the same under these terms and conditions of trade, the Customer shall indemnify Eco Living 2022 Ltd from and against all claims, loss, liabilities and damage of any kind whatsoever and however caused or arising (whether in contract, tort (including negligence) or otherwise) suffered or incurred by Eco Living 2022 Ltd in connection with the supply of Goods to the Customer or brought by any person against Eco Living 2022 Ltd in connection with any matter, act, omission, or error by Eco Living 2022 Ltd in connection with the Goods.
(a) The Customer has complied with the provisions of clause 8.1 or Eco Living 2022 Ltd has agreed in writing to accept the return of the Goods;
(b) The Goods are returned at the Customer’s cost within seven (7) days of delivery (or deemed delivery); and
(c) The Goods are returned in the condition in which they were delivered.
(a) All warranties and representations implied by customary practice, at law, or under statute are excluded; and
(b) Other than to the extent expressly stated in these terms and conditions, Eco Living 2022 Ltd shall not be liable for any loss or damage suffered or incurred by the Customer (whether direct or indirect, consequential or economic, profits, expenses or otherwise) arising out of or resulting from any act or omission of Eco Living 2022 Ltd or any officer, employee or agent of Eco Living 2022 Ltd, or because of any failure to supply goods or products of a particular nature, type or size.
The Customer warrants that all logos, marks, designs or instructions provided by the Customer to Eco Living 2022 Ltd will not cause Eco Living 2022 Ltd to infringe any patent, registered design or trademark in the execution of the Customer’s order.
(a) Nonpayment of any sum by the due date;
(b) The Customer intimates that it will not pay any sum by the due date;
(c) Failure by the Customer to comply with any obligations imposed on it under these terms and conditions of trade;
(d) Any Goods are seized by any other creditor of the Customer;
(e) Any Goods are materially damaged after delivery to the Customer and before payment in full has been made by the Customer;
(f) The Customer is declared bankrupt, is placed in liquidation or voluntary administration or a receiver or administrator is appointed to any of the Customer’s assets;
(g) A Court judgment is entered against the Customer and remains unsatisfied for a period of seven days;
(h) A material adverse change in the financial position of the Customer occurs (as reasonably determined by Eco Living 2022 Ltd). If a Default occurs all amounts owing by the Customer shall be immediately due and payable and Eco Living 2022 Ltd shall be entitled to enforce all rights available to it under these terms and conditions of trade, at the cost, risk and responsibility of the Customer in all respects.
If the Customer fails to make payment of any amount by the due date interest (calculated daily from the due date until the date that payment is made in full to Eco Living 2022 Ltd) shall accrue and be payable on the overdue amount at the rate of 2.5% per calendar month. Such interest shall compound monthly at such a rate after as well as before any judgment.
If the Customer defaults in payment of any amount when due, the Customer shall indemnify Eco Living 2022 Ltd from and against all costs and disbursements incurred by Eco Living 2022 Ltd (including solicitor/client costs on a full indemnity basis and collection agency costs), arising from, or consequent on, enforcement and/or collection of the overdue amount.
If a Default occurs, then without prejudice to any other rights of Eco Living 2022 Ltd under these terms and conditions of trade or at law Eco Living 2022 Ltd may, in its sole discretion:
(a) Suspend or terminate the supply of Goods and any of Eco Living 2022 Ltd’s other obligations under these terms and conditions of trade; and/or
(b) Cancel all or any part of any order of the Customer which remains unperformed. Eco Living 2022 Ltd will not be liable to the Customer for any loss or damage the Customer suffers as a result of any exercise by Eco Living 2022 Ltd of its rights under this clause 12.
Eco Living 2022 Ltd’s rights under this clause 12 are in addition to and not in substitution for any other rights Eco Living 2022 Ltd may have at law.
If any order for Goods is cancelled under clause 13.1 or is cancelled by Eco Living 2022 Ltd at any stage prior to delivery or performance of the Goods the Customer shall remain liable to make payment for all work undertaken Eco Living 2022 Ltd up to the time of cancellation.
(a) Any person or corporation to provide Eco Living 2022 Ltd such information as Eco Living 2022 Ltd may require in response to any credit enquiry in relation to the Customer;
(b) Eco Living 2022 Ltd to collect, retain and use any information about the Customer, for the purpose of assessing the Customer’s creditworthiness or marketing products and services to the Customer; and
(c) Eco Living 2022 Ltd to disclose information about the Customer, whether collected by Eco Living 2022 Ltd from the Customer directly of obtained by Eco Living 2022 Ltd from any other source, to any other credit provider or any credit reporting agency for the purposes of providing or obtaining a credit reference, debt collection or notifying a Default by the Customer. Where the Customer is an individual the authorities under clause 14.1 are authorities or consents for the purposes of the Privacy Act 1993.
The Customer shall have the right to request Eco Living 2022 Ltd for a copy of the information about the Customer retained by Eco Living 2022 Ltd and the right to request Eco Living 2022 Ltd to correct any incorrect information about the Customer held by Armour Safety.
15. Agency The Customer hereby irrevocably authorises Armour Safety to contract with Eco Living 2022 Ltd’s suppliers as agent for the Customer or, at Eco Living 2022 Ltd’s discretion, as principal, in connection with sourcing the Goods or any goods or products comprised in the Goods or used in the production of the Goods.
16. General If any provision of these terms and conditions of trade shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
17. Personal Guarantee of Company Directors and Trustees If the Customer is a company or a trust, the director(s) or trustee(s) signing Armour Safety’s account application form (the “Guarantor(s)”), in consideration for Eco Living 2022 Ltd agreeing to supply Goods and grant credit at their request:
(a) Unconditionally and absolutely guarantee to Eco Living 2022 Ltd, the due, prompt and punctual, full and complete performance and payment by the Customer, of all the terms, covenants, conditions, obligations, monies and amounts which the Customer has assumed and made, and has agreed with Eco Living 2022 Ltd to perform and pay, under these terms and conditions of trade;
(b) Unconditionally acknowledge and agree that they will be jointly and severally liable as principal debtors to Eco Living 2022 Ltd for the payment of all monies now or hereafter owed by the Customer to Eco Living 2022 Ltd; and
(c) Hereby jointly and severally irrevocably agree to indemnify Eco Living 2022 Ltd from and against all claims, losses, liabilities and damage it may suffer or incur as a result of any failure by the Customer to comply with its obligations under these terms and conditions of trade. The Guarantor(s) will not be released from their obligations under clause 17.1 by reason of any extension of time, compromise, renewal, indulgence, release or discharge granted by Eco Living 2022 Ltd to the Customer. The guarantee in clause 17.1 will constitute a continuing guarantee and Eco Living 2022 Ltd will not be bound to exercise or exhaust its remedies and recourses against the Customer before being entitled to enforce its rights against the Guarantor(s).
