RFD (AUSTRALIA) PTY LIMITED - ABN 55 050 242 601 - CONDITIONS OF SALE
In these Conditions and any Contract to which these Conditions apply, unless the
context otherwise requires:
- "Acts" means the Trade Practices Act 1974 and any other consumer legislation
in force in Australia
- "Company" means RFD (Australia) Pty Limited.
- "Contract" means any contract for the sale of Goods by the Company to the
- "Delivery" means;
- actual delivery of the Goods by the Company to the Purchaser or any agent, employee or representative of the Purchaser; and
- deemed delivery of the Goods in accordance with condition 4
- "Ex Works" has the meaning given by the Incoterms of the International
Chamber of Commerce.
- "Goods" means any item of any nature which is to be sold pursuant to any
Contract and any service provided or to be provided in conjunction with the
- "Liability" means all liability whatsoever and howsoever arising including any
liability for consequential loss
- "Order" means any order for the sale of Goods placed by the Purchaser with
- "Price" means the price of the Goods set out on the Sales Order form
calculated pursuant to the price list published by the Company from time to time
subject to adjustment in accordance with these Conditions.
- "Purchaser" means the Customer named on the Sales Order form,
- "Taxes" means all taxes, imposts, levies, assessments, charges and duties
whatsoever including any duty, charge or levy in respect of the export or import
In these Conditions and any Contract to which these Conditions apply, unless the
context otherwise requires:
- words importing:
- the singular include the plural and vice versa;
- any gender include the other gender;
- a reference to:
- a person includes a corporation and bodies politic;
- a statute, ordinance, code or other law includes regulations and other statutory instruments under it and consolidations, amendments, reenactments or replacements of any of them made by any legislative authority.
Headings are ignored in construing these Conditions.
2.1 Applicability of Conditions
These Conditions apply to every Contract unless expressly excluded in accordance with these Conditions
2.2 Company publications
2.2(a) forms part of the
Contract (unless expressly set out or referred to in the Contract).
- All descriptions, specifications, illustrations, drawings and diagrams provided
by the Company whether in the Company's catalogues, trade literature and
other published matter or otherwise are of a general informative nature and
- None of the published matter referred to in condition
2.3 Ordering of Goods
2.4 Cancellation of Contracts
- The placement of an Order constitutes an offer.
- Upon receipt by the Purchaser of the Company's acceptance of an Order,
the Contract and these Conditions are binding upon the Company and the
Unless it is the opinion of the Company that the relevant Goods can not be resold
within a reasonable time after cancellation, or the relevant Goods have already
been Delivered to the Purchaser, the Purchaser may cancel a Contract provided
that if a Purchaser cancels a Contract, the Purchaser shall indemnify the Company
against all losses arising out of such a cancellation.
3.1 Price of the Goods
Unless otherwise stated in these Conditions or in the Contract, the Price Is for
Delivery Ex Works and includes the cost of basic packaging but excludes any
Unless otherwise stated in these Conditions or in the Contract, the Goods are to
be delivered in basic packaging and any special packaging required by the
Purchaser shall be added to the Price.
3.3 Price adjustment
The Company may, without notice to the Purchaser, adjust the Price, whether
before or after acceptance of the Goods, in the event of and to take account of any
Increase in the cost to the Company of selling the Goods as a result of:
3.4 Legal action
- increases in costs of transport or insurance;
- increases in rates of any applicable Taxes in respect of the sale of the Goods,
- any changes in applicable exchange rates; or
- delays by the Purchaser in providing any information or licences required by
the Company for the Delivery, production, sate or despatch of the Goods.
The Company is entitled to bring an action for the Price whether or not property In the Goods has passed to the Purchaser.
4.1 Time of delivery
4.2 Delivery to a carrier
- Any time or date named or accepted by the Company for completion, delivery.
despatch, shipment or arrival of the Goods or for tender of any documents is an
estimate only and does not constitute a condition or part of the description of the goods.
- The Company is not under any liability for the consequences of any delay as
a result of any cause outside the reasonable control of the Company and the
Company may extend the time for completion delivery, despatch shipment or
arrival or cancel the Contract without any Liability.
- Time for completion, Delivery, despatch, shipment or arrival of the Goods or for
the tender of any documents is not of the essence of the Contract.
Despite any stipulated place of Delivery, despatch of the Goods to a carrier for the
purpose of, or in connection with. transmission to the Purchaser is to be taken to
constitute Delivery to the Purchaser and satisfaction of the Company's obligation
in respect of delivery.
4.3 Delays caused by the Purchaser
Without prejudice to any other rights of the Company under these Conditions, if
the Purchaser causes or requests any delay the Purchaser shall pay, in addition
to, and as if it were part of the Price, all storage and other costs arising from the delay and the Company is under no Liability to the Purchaser in respect of the
Company's possession of the Goods whether as bailee or otherwise.
4.4 Partial deliveries
Unless otherwise stated in writing the Company may make partial deliveries or
deliveries by installments in any amounts the Company may determine and these Conditions apply to each partial delivery or installment. Each portion of the Goods delivered is to be taken to be sold under a separate Contract incorporating these Conditions so far as they are applicable.
5.1 Payment in cash or bank cheque
Subject to condition 5.2. payment of the Price is to be made in full by the
Purchaser in cash or by bank cheque within 30 days from the Delivery together
with payment of all Taxes chargeable on the Company in connection with the
Contract unless the Company requires payment in cash at the point of sale.
5.2 Time is of the essence
5.3 No deduction from the Price
- Time for payment of the Price is of the essence of the Contract
- If the Purchaser fails to pay the Price when due the Company may:
- treat the Contract as repudiated by the Purchaser; or
- suspend Delivery of the Goods the subject of the Contract and any Goods the subject of any
other Contract with the Purchaser, without incurring any Liability to the Purchaser in respect of such treatment or suspension.
- Without prejudice to the rights of the Company under the Purchaser shall, if so required by the Company, pay interest to the Company on the outstanding amount of the Price at the rate of two per cent per annum above the indicator lending rate of Westpac Banking Corporation Limited ruling from time to time until the Price is paid in full.
The Purchaser is not entitled to make any deduction from the Price in respect of
any set-off or counterclaim.
5.4 Recovery of Costs
The purchaser must pay the Company an amount equal to any expenses,
costs or disbursements incurred by the Company in recovering any outstanding
monies owed by the Purchaser to the Company under these conditions or under any contract to which these Conditions apply (including debt collection fees and solicitor costs, providing that these fees and costs do not exceed the scale charges as charged by the debt collection agency or solicitor plus any out of pocket expenses).
6. TRANSFER OF PROPERTY
6.1 Property in the Goods
6.2 Purchaser may conditionally agree to sell the Goods before property
- Property in the Goods remains of the Company until full payment for the Goods
has been made or is properly vested in some other person by operation of
- Until property in the Goods passes, the Purchaser shall:
- hold the Goods on a fiduciary basis as bailee for the Company;
- keep the Goods separate from all other goods in its possession and marked
in such a way that they are clearly identified as the property of the
- upon request deliver up such of the Goods (as have not ceased to be in
existence or resold) to the Company if the Purchaser fails to deliver up
the Goods, the Company may, without notice, enter the premises on
which the Purchaser holds the Goods during business hours. The Purchaser
shall ensure that the Company has access to the premises on which the
Goods are held during business hours and authorises the Company and the
Company's employees and agents to enter upon the premises or to exercise
any other of the Purchaser's rights of entry for that purpose.
6.3 Company entitled to proceeds of sale of the Goods until payment
- The Purchaser (acting on its own account and not as agent of the Company)
may agree to sell any of the Goods in the Purchaser's possession in the
ordinary course of trading in spite of the fact that property in the Goods has
not then passed to the Purchaser if, but only if, the Company has not required
the return of the Goods and none of the events mentioned in condition 11 has
- The Purchaser shall not otherwise deal with or dispose of the Goods until
property in the Goods has passed to the Purchaser.
- Where the Purchaser (whether in the ordinary course of trading or otherwise)
re-sells the Goods before property in the Goods has passed to the Purchaser
and as a result of such re-sale, property in the Goods passes from the
Company, the Company is entitled to the proceeds of such re-sale including any
right or claim for such proceeds and the Purchaser shall hold such proceeds of
sale on trust for the Company and keep them apart.
- If the Purchaser completes the Contract by making payment in full for the
- condition 6.3 (a) does not apply; and
- the Purchaser is entitled to the proceeds of the re-sale of the Goods in place
of the Company.
7.1 Purchasers risk
The Goods are at the Purchaser's risk from the time that the Company notifies the Purchaser that the Goods are available for collection, and in any case despite any subsequent return or retaking of possession by the Company and the Company is not under any obligation to insure the Goods during transit.
7.2 Purchaser responsible prior to property passing
Whilst the Goods are in the possession of the Purchaser before property in the
Goods has passed, the Purchaser shall, at its sole expense, keep the Goods in the same condition as that in which they were Delivered and make good any damage or deterioration.
8.1 Return of Goods
The Company shall accept a return of Goods from the Purchaser provided that
8.2 Amount of credit
- The Goods are completely free of defects, their packaging is undamaged and
the Goods are clean and of saleable quality; and
- the Goods are returned to
the Company by the Purchaser within 30 days of
their Delivery by the Company to the Purchaser.
If the Goods are returned in accordance with condition 8.1, the Company will issue a credit note to the Purchaser at the time of return for such part of the price as relates to the Goods returned less:
9. LICENCES AND DUTIES
- a 10% handling charge of the Goods are returned to the Company up to 20
days after their Delivery by the Company to the Purchaser: or
- a 25% handling charge if the Goods are returned to the Company between 21 and 30 days after their Delivery by the Company to the Purchaser.
9.1 Purchaser to pay Taxes and obtain licences
The payment of any Taxes and the obtaining and maintenance in full force and
effect of any necessary export or import licences, authorisations or consents in
respect of the Goods is the sole responsibility of the Purchaser.
9.2 Company not liable
The Company Is under no Liability in respect of Goods exported or imported
without any necessary licences, authorisations or consents.
10. EXCLUSION OF LIABILITY
10.1 No liability where Purchaser is not a consumer
Subject to any express provision in these Conditions or in the Contract to the
contrary and to the full extent permitted by law, where the Contract does not
constitute a supply of goods or services to a consumer as defined in any of the
10.2 Limits of Company's Liabilities where Purchaser is a consumer
- the Company gives no condition, warranty or undertaking of any kind as to
- the condition, quality or safety of the Goods;
- the suitability or fitness for the ordinary or any special use or purpose of the
- any service provided by or on behalf of the Company in relation to the
- all conditions, warranties or Liabilities (including Liability as to negligence)
expressed or implied, whether arising by virtue of any statute or otherwise,
relating to the Goods or to any service provided in rotation to the Goods are
negated and excluded;
- the Purchaser accepts the Goods as they are with all faults and defects (if any).
If the Contract constitutes a supply of goods or services to a consumer, as defined
in any of the Acts:
provided that this condition 10.2 is not to apply if the Purchaser establishes that the Company's reliance on it would not be fair and reasonable.
- nothing in the Contract or these Conditions is to be construed as excluding.
restricting or modifying any express or implied condition, warranty, right or
remedy conferred by any of the Acts on the Purchaser; and
- the Liability of the Company in respect of a breach of a condition or warranty
implied by any of the Acts (other than an implied condition as to good title,
an implied warranty that the Purchaser is to enjoy quiet possession and an
implied warranty that the Goods are unencumbered together with any other non
excludable implied conditions or warranties contained in any of the Acts), is
limited at the Company's option to;
- in the case of Goods:
- the replacement of the Goods or the supply of equivalent goods; or
- the repair of the goods;
- the payment of the cost of replacing the Goods or of acquiring equivalent
- the payment of the cost of having the Goods repaired;
- in the case of services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again
10.3 Purchaser not to reject the Goods for incorrect quantity
11. BREACH AND PURCHASER'S INSOLVENCY
- In the case of any deviations in the quantity of Goods Delivered from those
stated in the Contract the Purchaser:
- has no right to reject the Goods or to claim for damages for breach of
- is only obliged to pay at the Contract rate for the quantity of Goods Delivered;
provided that the Purchaser is not bound to pay for any quantity of Goods in
excess of the quantity stated in the Contract
- If the Purchaser rejects any Goods in excess of the quantity stated in the
Contract the Purchaser shall:
- notify the Company immediately;
- keep the excess goods in the same condition as that in which they were
- if so requested by the Company, deliver the excess goods to the Company
at the expense of the Company at such place as the Company may direct
- the Purchaser defaults in or commits any breach of its obligations to the
Company whether under the Contract or otherwise;
- any distress or execution is levied upon the Purchaser;
- the Purchaser makes, or enters into any negotiations for, any arrangement or
composition with its creditors or any of them;
- the Purchaser commits any act of bankruptcy or if any petition in bankruptcy is presented against it:
- the purchaser is a corporate body and the Purchaser becomes insolvent or
goes into liquidation or If a receiver of the Purchaser's assets or undertaking or
any part of the Purchaser's assets is appointed;
- the Purchaser is unable to pay its debts within the meaning of s460 of the
Corporations Law (or any analogous provision under the law applicable to the
- the Purchaser stops or threatens to stop payment;
- any consents, authorisations or licenses referred to in condition 9 are not
fully obtained or maintained in full force and effect, the Company may, without prejudice to any other claim or right the Company may make, hold, exercise or determine the Contract immediately and any other Contract, agreement or arrangement with the Purchaser then subsisting and sell the Goods.
12.1 Stamp duty
The Purchaser is, as between the parties, liable for and duly pay all stamp duty on
or relating to these Conditions, the Contract or any related document
No alteration may be made to any other part of the Contract unless expressly
accepted in writing by the Company.
12.3 Waiver and exercise of rights
A single or partial exercise or waiver of a right relating to these Conditions or the
Contract will not prevent any other exercise of that right or the exercise of any
12.4 Governing law
These Conditions are governed by and are to be construed in accordance with
the laws of Victoria.
- irrevocably and unconditionally submit to the non-exclusive jurisdiction of the
courts of Victoria and any courts which have jurisdiction to hear appeals from
any of those courts, and
- waive any right to object to any proceedings being brought in those courts for
A notice, demand, certification or other communication under these Conditions
Shall be in writing, in the English language and may be given by an agent of the
sender and delivered in accordance with any means authorised by law or by any means described in clause 13.2.
A communication given by:
- post is taken to be received if posted within Australia to an Australian address
three days after posting and in any other case, 10 days after posting;
- telex is taken to be received when the sender receives the addressee's
- facsimile is taken to be received when the sender's facsimile machine produces
a transmission report stating that the facsimile was sent to the addressee's