1.1 An Order for the purchase of Goods and/or Services from Seadan made by the Customer will be taken to be an offer to Seadan incorporating these Conditions.
1.2 A contract for the sale and purchase of the Goods and/or Services will be made upon acceptance by Seadan of the offer constituted by an Order, provided always that Seadan reserves the right to refuse any such offer.
1.3 These Conditions prevail over any terms and conditions of trade of the Customer whether or not any inconsistency arises.
2.1 Unless previously withdrawn, revoked or varied by Seadan prior to acceptance by the Customer, any written quotation by Seadan shall remain valid for the period stated in such quotation and, if no period is specified, no more than 60 days from the date of the quotation.
3.1 Seadan makes no representation as to the accuracy of any specifications, drawings and particulars in respect of any Goods contained in any advertising materials or other publications and Seadan reserves the right to alter any Goods without notice to the Customer.
4. PRICE AND PAYMENT
4.1 Prices quoted to the Customer are those prevailing at the date of any quotation. The price of Goods and/or Services will be Seadan’s prevailing price at the time of delivery to the Customer.
4.2 All prices quoted by Seadan are exclusive of all state and federal taxes charges or duties of any kind including GST and any such applicable taxes charges or duties shall be paid by the Customer as a condition of supply of the Goods and/or Services.
4.3 Unless otherwise agreed in writing by Seadan all sales for the supply of Goods and/or Services under these Conditions will be on a cash before delivery basis.
4.4 Should Seadan agree to grant credit to the Customer such credit will, in the absence of any written agreement by Seadan to the contrary, be upon the basis that payment will be made in full without deduction of any kind on or before the day being 30 days from the date of delivery of the Goods and/or performance of the Services to/for the Customer and otherwise in accord with Seadan’s prevailing commercial credit policy at the time of the Order.
4.5 The Customer must pay Seadan on demand default interest at the rate being 2% higher than the prevailing bank overdraft rate charged by Seadan’s banker on all overdue amounts owed by the Customer to Seadan for the period from the due date until the date that Seadan receives payment in full. Interest will be calculated daily and will be payable together with the overdue amount(s). Any accrued interest which is not paid within one calendar month will be added to the capital amount outstanding and will likewise be subject to interest until the outstanding amount is paid in full.
5. ORDERS AND DELIVERY
5.1 Any Order for Goods and/or Services must be placed in accord with the prevailing ordering procedure of Seadan as specified from time to time (and the requirements of such ordering procedure are incorporated into these Conditions as if set out in full).
5.2 Freight, delivery and transit insurance in respect of the Goods will be arranged by Seadan and paid for by the Customer as a condition of the supply of Goods.
5.3 Delivery shall be complete on arrival of the Goods at the destination nominated in the Order at which time the Customer shall acknowledge receipt of the Goods by executing the accompanying delivery document(s).
5.4 Seadan shall use its best endeavours to procure delivery of the Goods and/or Services to the Customer on the delivery date specified in the Order but shall not be liable for any late delivery or non-delivery and under no circumstances shall Seadan be liable for any loss, damage or delay occasioned to the Customer or any third party arising from the late delivery or non-delivery of the Goods and/or Services or any other event or circumstance beyond the reasonable control of Seadan.
5.5 Seadan shall be entitled to withhold delivery of the Goods and/or Services to the Customer unless and until payment for the Goods is made by the Customer in accord with these Conditions.
6. RISK AND INSURANCE
6.1 All risk of loss or damage to the Goods passes to the Customer on delivery of the Goods to the Customer in accord with these Conditions.
6.2 The Customer will insure the Goods for their full insurable value from the time of delivery to the Customer until Seadan receives payment in full for the Goods from the Customer.
7. RETENTION OF TITLE
7.1 The Customer agrees that the legal and equitable title to the Goods is retained by Seadan until Seadan receives payment in full in cleared funds from the Customer for the Goods, Services and all other goods and services supplied to the Customer by Seadan at any time. Prior to title in the Goods passing to the Customer, the Customer:
(a) holds the Goods as bailee and fiduciary agent of Seadan;
(b) where the Customer processes the Goods, either by using the Goods to manufacture other goods or by incorporating the Goods in or with any other goods, holds such part of the new goods (Processed Goods) on trust for Seadan as bailee and fiduciary agent of Seadan;
(c) must store the Goods and such part of the Processed Goods separate from its own goods and those of any other third party in such a way as to clearly indicate at all times that the Goods and such part of the Processed Goods are owned by Seadan; and
(d) must ensure that, at all times, the Goods and such part of the Processed Goods are properly stored, protected, readily identifiable and insured.
7.2 The Customer agrees to accept this appointment as bailee and fiduciary agent of Seadan.
7.3 The Customer may sell or deal in the ordinary course of business with the Goods and such part of the Processed Goods provided that:
(a) any such sale or dealing is at arms’ length and on market terms; and
(b) the Customer holds the proceeds of any sale of or dealing in the Goods and such part of the proceeds of any sale of or dealing in
the Processed Goods on trust for Seadan in a separate identifiable account with a bank to whom the Customer has not given security as the beneficial property of Seadan and the Customer must pay such amount to Seadan on demand however failure to do so will not affect the Customer's obligation as trustee.
7.4 For the purpose of the preceding clause, “such part” means an amount equal in dollar terms to the amount owing by the Customer to Seadan at the time the Goods are used in the manufacture of or incorporated into the Processed Goods.
7.5 Notwithstanding any other provision to the contrary, Seadan reserves the following rights in relation to the Goods until all amounts owing by the Customer to Seadan in respect of the Goods and all other goods and services supplied to the Customer by Seadan at any time are fully paid:
(a) legal and equitable ownership of the Goods;
(b) to retake possession of the Goods; and
(c) to keep or resell any of the Goods repossessed.
7.6 In the event of a breach of these Conditions by the Customer including, without limitation, failure by the Customer to make payment for the Goods and/or Services by the date specified by Seadan to the Customer, the Customer must return the Goods to Seadan immediately on demand. If the Customer does not return the Goods to Seadan on demand Seadan may in addition to its rights under the PPSA, without notice, enter any premises where it suspects the Goods are and remove them, notwithstanding that they may have been attached to other goods not the property of Seadan.
7.7 The Customer grants full leave and an irrevocable licence to Seadan and any person authorised by Seadan to enter upon any premises where the Goods may for the time being be placed or stored for the purpose of retaking possession of the Goods.
7.8 The Customer agrees that:
(a) it shall be liable for all costs, losses, damages, expenses or any other sums of money incurred or suffered by Seadan (including consequential losses and damages) as a result of Seadan exercising its rights under these Conditions; and
b) it shall indemnify Seadan for all fees (including legal fees on a full indemnity basis), costs and expenses incurred or suffered as result of any and all prosecutions, actions, demands, claims or proceedings brought by or against Seadan in connection with retaking possession of the Goods or the exercise by Seadan of its rights under these Conditions, and the Customer shall repay all such fees, costs, losses, damages, expenses or any other sums of money on demand.
8. PERSONAL PROPERTY SECURITIES ACT
8.1 Notwithstanding anything to the contrary contained in these Conditions, the PPSA applies to these Conditions.
8.2 For the purposes of the PPSA:
(a) terms used in this clause 8 that are defined in the PPSA have the same meaning as in the PPSA;
(b) these Conditions are a security agreement and Seadan has a Purchase Money Security Interest in all present and future Goods supplied by Seadan to the Customer and the proceeds of the Goods;
(c) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Customer at any particular time; and
(d) the Customer must do whatever is necessary in order to give a valid security interest over the Goods which is able to be registered by Seadan on the Personal Property Securities Register.
8.3 The security interest arising under this clause 8 attaches to the Goods when the Goods are collected or dispatched from Seadan's premises and not at any later time.
8.4 Where permitted by the PPSA, the Customer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
8.5 Seadan and the Customer agree to contract out of and nothing in the provisions of sections 96, 125, 129, 142 and 143 of the PPSA will apply to these Conditions.
8.6 To the extent permitted by the PPSA, the Customer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Customer or which place obligations on Seadan will apply only to the extent that they are mandatory or Seadan agrees to their application in writing; and
(b) where Seadan has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
8.7 The Customer must immediately upon Seadan's request:
(a ) do all things and execute all documents necessary to give effect to the security interest created under these Conditions; and
(b) procure from any person considered by Seadan to be relevant to its security position such agreements and waivers (including as equivalent to those above) as Seadan may at any time require.
8.8 Seadan may allocate amounts received from the Customer in any manner Seadan determines, including in any manner required to preserve any Purchase Money Security Interest it has in Goods supplied by Seadan.
8.9 For the purposes of section 275(6) of the PPSA, the parties agree and undertake that these Conditions and any information pertaining to the sale of Goods and details of the Goods shall be kept confidential at all times. Neither party may disclose any information pertaining to these Conditions or the sale of the Goods, except as otherwise required by law or that is already in the public domain.
9.1 If the Customer breaches a provision of these Conditions including, without limitation, a provision relating to the payment of money or if the Customer, being a natural person, is the subject of any personal insolvency event including, without limitation, arising out of the Customer committing an act of bankruptcy or if the Customer, being a company, has a receiver, receiver and manager, official manager, trustee, administrator, other controller (as defined in the Corporations Act) or similar official appointed or steps are taken for such appointment over any of the assets or undertaking of the Customer or if the Customer suspends payment of its debts generally or is or becomes unable to pay its debts when they are due or is presumed to be insolvent under the Corporations Act 2001 (Cth) or if the Customer ceases or threatens to cease to carry on business or a guarantee or other security given to Seadan in relation to the Customer is purported to be revoked or asserted to be unenforceable then Seadan may, without limiting any other rights it may have, do any or all of the following things:
(a) withdraw any credit facilities which may have been extended to the Customer and require immediate payment of all moneys due to Seadan by the Customer;
(b) without Seadan incurring liability to the Customer terminate any contract in force between Seadan and the Customer for the sale or supply of Goods and/or Services and, without limitation, withhold any deliveries of Goods and/or performance of Services;
(c) without Sedan incurring liability to the Customer, suspend performance under or terminate any contracts in force between Seadan and the Customer, not being contracts for the sale or supply of Goods and/or Services;
(d) retake possession of the Goods in the manner contemplated by and exercising its rights under clauses 7.5 - 7.8 of
and the Customer shall be liable for all legal costs, fees, charges, expenses and outgoings on a full indemnity basis incurred by Seadan in connection with or arising from the happening of any such event of default.
10. FORCE MAJEURE
10.1 If by reason of any fact, circumstance, matter or thing beyond the reasonable control and without the fault or negligence of Seadan or the Customer either is unable to perform in whole or in part any obligation under a Contract made pursuant to these Conditions such party shall be relieved of that obligation to the extent and for the period that it is unable to perform and shall not be liable to the other party in respect of such inability provided that this clause shall not operate to excuse or release the Customer from any failure or delay to pay any amount due under these Conditions.
11. LIMITATION OF LIABILITY
11.1 These Conditions set out the entire agreement between Seadan and the Customer in relation to their subject matter. This Contract does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services or any contractual remedy for their failure.
11.2 If the Customer is a consumer nothing in these Conditions restricts, limits or modifies the Customer's rights or remedies against Seadan for failure of a statutory guarantee under the ACL.
11.3 If the Customer on-supplies the Goods to a consumer and:
(a) the Goods or Services are not of a kind ordinarily acquired for personal, domestic or household use or consumption, then the amount specified in section 276A(1) of the ACL is the absolute limit of Seadan's liability to the Customer;
(b) the Goods or Services are of a kind ordinarily acquired for personal, domestic or household use or consumption, payment of any amount required under section 274 of the ACL is the absolute limit of Seadan's liability to the Customer;
howsoever arising under or in connection with the sale, installation, use of, storage or any other dealings with the Goods or Services by the Customer or any third party.
11.4 If clause 11.2 or 11.3 do not apply, then other than as stated in these Conditions or any written warranty statement Seadan is not liable to the Customer in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the Goods or Services by the Customer or any third party.
11.5 Seadan is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party, except to the extent of any liability imposed by the ACL.
11.6 The Customer acknowledges that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Seadan in relation to the Goods or Services or their use or application.
(b) it has not made known, either expressly or by implication, to Seadan any purpose for which it requires the Goods or Services and it has the sole responsibility of satisfying itself that the Goods or Services are suitable for the use of the Customer.
11.7 Nothing in these Conditions is to be interpreted as excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
12. RETURN OF GOODS
12.1 Subject to clause 12.2 and 12.3, Seadan will not be liable for any shortages, damage or non-compliance with the specifications in the Order
12.2 Returns for change of mind reasons will only be accepted where the Goods are returned strictly in accord with the prevailing Returns Policy of Seadan as specified from time to time (which Policy is incorporated into these Conditions as if set out in full) and without limiting the terms of that Policy only where:
(a) a request to return the Goods is made within 30 days of delivery in accord with these Conditions;
(b) Seadan provides its written consent to the return of any Goods by the Customer;
(c) the Goods are returned together with a copy of the relevant invoice within 7 days of Seadan providing such written consent;
(d) freight has been pre-paid by the Customer and return delivery is effected by a courier service approved by Seadan; and
(e) the Goods are returned in the condition in which they were originally delivered.
12.3 Nothing in these Conditions shall require Seadan to accept the return of any Goods from the Customer where those Goods:
(a) have been specifically produced, imported or acquired to fulfil the Order;
(b) are discontinued goods or no longer stocked by Seadan;
(c) have been altered in any way;
(d) have been used; or
(e) are not in their original condition and packaging.
12.4 When any shortages, claim for damaged Goods or non-compliance with the Order specifications is accepted by Seadan, Seadan may, at its option, replace the Goods, or refund the price of the Goods.
12.5 If the Customer is a consumer, nothing in this clause 12 limits any remedy available for a failure of the guarantees in the ACL.
13.1 If any provision or part of a provision in these Conditions is unenforceable, illegal or void then that provision or part of a provision is severed and the rest of these Conditions remain in force.
13.2 Any failure or delay by Seadan to exercise a power or right does not operate as a waiver of that power or right and the exercise or non-exercise of a power or right by Seadan does not preclude either its exercise in the future or the exercise of any other power or right.
13.3 The Customer may not assign, transfer or otherwise deal with its rights and obligations under, and/or the benefit of any Contract made pursuant to, these Conditions without the prior written consent of Seadan.
13.4 Seadan and the Customer submit to the exclusive jurisdiction of the Courts of Victoria, Australia including the Federal Court sitting in Victoria and any courts that may hear appeals from those Courts about any proceedings in connection with a contract made Incorporating these Conditions.
14.1 ACL means the Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (Cth) and its associated Regulations as amended;
14.2 Conditions means these Conditions of Sale;
14.3 consumer is as defined in the ACL;
14.4 Customer means the party identified as such in the attached Credit Account Application (if any) or otherwise the party which places an Order for Goods and/or Services from Seadan in accord with these Conditions and includes the Customer’s successors agents and permitted assigns;
14.5 Goods means the goods the subject of an Order;
14.6 GST means the tax payable on Taxable Supplies within the meaning of the GST Act;
14.7 GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended);
14.8 Order means an offer by the Customer for the supply of Goods and/or Services by Seadan made in the form and according to the prevailing requirements of Seadan;
14.9 PPSA means the Personal Property Securities Act 2009 (Cth) and its associated Regulations as amended;
14.10 Seadan means Seadan International (Australasia) Pty Ltd ACN 006 711 673 trading as ‘Seadan Security & Electronics’ (B0942805V) and includes its successors, agents and permitted assigns; and
14.11 Services means services rendered by Seadan to the Customer relating to the supply of Goods the subject of a Contract made incorporating these Conditions.
Please return completed form to: PO Box 175, Mt Waverley, 3149 or Fax to: (03) 9263 0166