T r a d i ng T e r m s
Standard Terms and Conditions for Sale of Goods.
By Penny Junction Australia Pty Ltd.
"Penny Junction" means Penny Junction Australia Pty Ltd.
"Buyer" means a purchaser of goods from Penny Junction or person who orders goods from Penny Junction.
Recitals:
Penny Junction owns the Goods.
The Buyer wishes to purchase the Goods from Penny Junction.
Penny Junction has agreed to sell and the Buyer has agreed to buy the Goods on these Terms and Conditions in conjunction with any other terms and conditions agreed to by the Parties.
Operative part:
Definitions and Interpretations:
In these Terms and Conditions the following terms have the following meanings unless the context otherwise requires:
"Bank" means a bank as defined in the Banking Act 1959 or a bank established by an Act of any Parliament of any State in Australia.
"Business Day" means a day on which Banks are open in the State for the conduct of business with the public;
"Claim" includes any claim, demand, remedy, suit, injury, damage, loss, Cost, liability, action, proceeding, right of action, claim for compensation and claim for abatement of any Obligation;
"Cost" includes any cost, charge, expense, outgoing, payment or other expenditure of any nature whatever, including where appropriate all reasonable and proper legal fees charged on a solicitor/own client basis;
"Event of Default" means any of the following events:
*if the Buyer fails to punctually and properly comply with any of its Obligations under these Terms and Conditions;
*if any provision in these Terms and Conditions is, or for any reason becomes, invalid or unenforceable;
*if an Insolvency Event occurs in respect of the Buyer;
*if a person holding any form of security granted by the Buyer becomes entitled to take any action to enforce its security Rights or if any form of execution is levied or enforced in respect of any of the assets of the Buyer and is not discharged within two (2) Business Days of being levied or enforced;
*if the Buyer is a natural person and if that person becomes, because of any form of mental or physical infirmity, a person whose assets or affairs becomes subject to administration or control by a third person;
"Goods" mean the items which Penny Junction proposes to sell or sells to the Buyer and the Buyer proposes to buy or buys from Penny Junction;
"GST" means GST within the meaning of the GST Act
"GST Act" means the A New Tax System (Goods and Services Tax) Act 1999.
"Indemnity" means a full, absolute and irrevocable undertaking intended to be met immediately upon first demand to indemnify and keep indemnified at all times subject to the provisions of any applicable Law;
"Insolvency Event" means the happening of any of the following events: if the relevant Person is or states that it is unable to pay its debts when they fall due;
*if any action or step is taken to appoint, in the case of a corporation, a liquidator (including provisional liquidator), a receiver, a receiver and manager, an administrator or any other external administrator of any of that corporation’s assets;
*if any action or step is taken, in the case of a natural person, to have that person made bankrupt;
*if any action or step is taken to obtain protection from creditors under any Law;
*if anything occurs which is similar to or which has a substantially similar effect to any of the events set out above;
"Liability" means any monetary, pecuniary or other Obligation due, owing or payable by any Person to any Person under these Terms and Conditions or in respect of any subject matter referred to in these Terms and Conditions;
"Month" or "Monthly" means respectively calendar month and calendar monthly;
"Notice" means any notice in writing, any statement in writing, any written material and any other written communications;
"Obligation" includes any legal, equitable, contractual, statutory or other obligation, commitment, duty, responsibility, undertaking or Liability, whether created by any document, action, Law or otherwise;
"Party" means a party whose arrangements are covered by these Terms and Conditions;
"Person" includes any corporation and vice versa,
"Price" means the amount agreed by the Parties to be the amount payable for the Goods;
"Release" includes a full, unqualified and unconditional waiver, release, discharge, acquittance, accord, satisfaction and bar of any legal, equitable or other nature whatever;
"Remedy" means any kind of relief, remedy, recourse, right of action or chose in action, whether curial or otherwise;
the Buyer has obtained all permits and licenses that it requires under both Australian Law and the Law of any other jurisdiction in order to allow the Buyer to fulfil its obligations under these Terms and Conditions.
Interpretation:
In the interpretation and application of these Terms and Conditions the following rules apply unless the context otherwise requires:
Expressions importing a natural person include a corporation and vice versa.
This document is governed by the laws of the State of Victoria and its courts are the exclusive forum for any dispute.
A covenant, agreement, warranty, obligation, liability or similar on the part of two or more persons binds each of them jointly and severally.
No rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of these Terms and Conditions.
These Terms and Conditions bind and enure for the benefit of successors and permitted transferees or assigns of the parties.
Headings or margin notes in these Terms and Conditions are for ease of reference only and do not affect the meaning or interpretation of these Terms and Conditions.
A reference to any statutory enactment or any law includes that statutory enactment or law as amended, modified or re-enacted from time to time and all rules regulations or other subordinate legislation made under that statute.
If the day on or by which anything is to be done is not a Business Day then that thing must be done on or by the next Business Day.
Where any time period is to be calculated from a specified date, that date must be included in the calculation.
These Terms and Conditions cannot be varied except by a subsequent document signed for by an authorised representative of Penny Junction and which document is expressed to vary or be made in substitution for these Terms and Conditions.
It is not necessary for Penny Junction to incur any expense or make any payment before enforcing a right of indemnity.
Time is of the essence in respect of the Buyer’s obligations under these Terms and Conditions.
Sale and purchase:
In consideration of the Buyer’s agreement to pay the Price, Penny Junction sells to the Buyer and the Buyer buys from Penny Junction the Goods on these Terms and Conditions.
Rights in relation to the goods:
While the Goods remain the property of Penny Junction: the Buyer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation Penny Junction may owe to the Buyer;
the Buyer cannot claim any lien over the Goods;
the Buyer will not create any absolute or indefeasible interest in the Goods in relation to any third party except as may be authorised by Penny Junction;
where the Buyer is in actual or constructive possession of the Goods: the Buyer will not deliver them or any document of title to the Goods to any person except as directed by Penny Junction or otherwise in the ordinary course of the Buyer’s Business; and
the Buyer is in possession of the Goods as a bailee of those Goods and owes Penny Junction the duties and liabilities of a bailee.
The property in the Goods remains with Penny Junction until Penny Junction has been paid in full for the Goods.
The Buyer is a bailee of the Goods until property in the Goods passes to the Buyer and this bailment continues in relation to each of the Goods until the Price of the Goods has been paid in full.
Pending payment in full for the Goods, the Buyer: must not supply any of the Goods to any person outside of its ordinary or usual course of business;
must not allow any person to have or acquire any security interest in the Goods;
If the Buyer supplies any of the Goods to any person before all moneys payable by the Buyer have been paid to Penny Junction: the Buyer holds the proceeds of re-supply of the Goods on trust for and as agent for Penny Junction immediately when those funds are receivable or are received;
the Buyer must either pay the amount of the proceeds or re-supply to Penny Junction immediately when they are received or pay those proceeds into an account with a Bank or financial institution or deposit-taking institution as trustee for Penny Junction.
Cancellation:
The Buyer must not cancel any order received by Penny Junction without the consent in writing of Penny Junction first being obtained, which consent may be withheld at Penny Junction’s absolute discretion.
If Penny Junction agrees to accept a return of the Goods, the Goods must be returned to Penny Junction at the Buyer’s expense on terms and conditions as required by Penny Junction.
If Penny Junction agrees to accept a return of the Goods, then Penny Junction will specify the refund payable to the Buyer and if no amount has been specified, the refund will be equal to seventy percent (70%) of the Price.
If the Goods are not returned to Penny Junction in accordance with the terms and conditions required by Penny Junction, the Buyer will not be entitled to any refund.
Delivery:
Penny Junction will use its best endeavours to deliver the Goods to the address notified in writing by the Buyer in a manner and at times agreed to by the Parties.
The cost of delivery will be borne by the Buyer unless otherwise agreed between the Parties.
The delivery times made known to the Buyer are estimates only and Penny Junction is not liable for late delivery or non-delivery of the Goods.
Penny Junction may at its sole discretion deliver the Goods to the Buyer in any number of instalments unless there is a specified agreement in writing to the effect that the Buyer will not take delivery by instalments.
If Penny Junction delivers any of the Goods by instalments, and any one of those instalments are defective for any reason: it is not a repudiation of the contract of sale for the Goods made by and between Penny Junction and the Buyer; and
the defective instalment is a severable breach that may give rise only to a claim for compensation.
Loss or damage in transit:
Penny Junction is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind by any person (whether or not Penny Junction is legally responsible for the person who caused or contributed to that loss or damage).
Penny Junction will provide the Buyer with such reasonable assistance as may be necessary to press claims on carriers so long as the Buyer: has notified Penny Junction and the carriers in writing immediately after loss or damage is discovered on receipt of Goods;
*lodges a claim for compensation on the carrier within three (3) Business Days of the date of receipt of the Goods; and
*agrees to pay Penny Junction’s reasonable costs (including legal costs) for providing that assistance.
Penny Junction is not required to take out any form or insurance in respect of the Goods nor is Penny Junction required to take out insurance to cover any loss or damage to Goods in transit.
Passing of risk:
Risk in the Goods passes to the Buyer on the earlier of:
actual or constructive delivery of the Goods to the Buyer; or
collection of the Goods from Penny Junction or any bailee or agent of Penny Junction by the Buyer’s agent, carrier or courier.
Examination of goods:
The Buyer will be responsible for immediate examination of the Goods on receipt.
If the Goods are in a damaged condition, the Buyer must notify Penny Junction of the damage within three (3) Business Days failing which, the Buyer will be deemed to have accepted the Goods and will not have any claim against Penny Junction in respect of the Goods.
Any Goods which the Buyer claims are damaged, must be left intact until Penny Junction has inspected those Goods which Penny Junction may do within sixty (60) Business Days. If the Goods are not left intact, the Buyer will be deemed to have accepted the Goods and will not have any claim against Penny Junction in respect of the Goods.
Prices:
Unless otherwise stated, all prices quoted by Penny Junction are net, exclusive of GST.
Prices quoted are those current at the date of issue of quotation.
Payment:
The Buyer must pay each invoice immediately by cash on delivery or letter of credit unless an alternative arrangement for payment has been agreed by the Parties.
The Buyer must pay the amount of the invoice to Penny Junction or at Penny Junction’s written direction.
If any cheque issued by the Buyer or by any third party in payment for Goods is dishonoured, then: Penny Junction may refuse to supply any further Goods (whether or not Penny Junction is to make any further delivery of the Goods) until satisfactory payment is received in full; and
Penny Junction is entitled to treat the dishonour of the Buyer’s cheque as a repudiation of the agreements between the Parties and to elect between terminating the agreements between the Parties or affirming those agreements, and in each case, claiming and recovering compensation for loss or damage suffered from the Buyer.
Where payment is tendered by cheque or similar form, payment will not be deemed to have been made until received in cleared funds in Penny Junction’s bank account.
If the Buyer fails to make payment to Penny Junction of any moneys when falling due and payable, all money then owed by the Buyer to Penny Junction will immediately become due and payable.
Interest:
If Penny Junction is not paid for any Goods on the date payment is due then without prejudice to any other right or remedy:
all outstanding moneys carry interest on daily balances until paid at a rate of interest per annum equal to four percent (4%) higher than the rate set out in Section 2 of the Penalty Interest Rates Act 1983;
Penny Junction may recover the Price and all outstanding moneys together with all interest immediately from the Buyer as a liquidated debt in a Court or Tribunal of competent jurisdiction irrespective of any claim that the Buyer may have against Penny Junction for anything or any matter related to the Goods delivered under these Terms and Conditions.
Exclusion of implied terms:
The Buyer acknowledges that:
no warranty, condition, description or representation in relation to the Goods is given by Penny Junction, express or implied by these Terms and Conditions or outside these Terms and Conditions;
all warranties, terms and conditions in relation to the state, quality or fitness of the Goods and every other warranty, term and condition whether express or implied by use, statute or otherwise is excluded to the extent permissible by Law;
where the Law implies terms, conditions and warranties ("Prescribed Terms") into contracts for the supply of goods and services and prohibits the exclusion, restriction or modification of certain terms, conditions and warranties then the liability of Penny Junction in respect of a breach of a Prescribed Term relating to the Goods or any part of the Goods is limited at the option of Penny Junction to: the replacement of the Goods;
the repair of the Goods;
the payment of the cost of repairing the Goods; or
payment of the cost of replacing the Goods;
the Buyer does not have under any circumstances any cause of action against or right to claim or recover from Penny Junction for or in respect of any loss or damage of any kind caused directly or indirectly by: any defect in material or workmanship of or any other defect in or unsuitability for any purpose of the Goods or any part of the Goods;
default or negligence on the part of Penny Junction.
no warranty, condition or representation has been made by Penny Junction regarding any health regulations or fitness of the Goods for consumption, whether by human, animals or plants.
Default:
If an Event of Default occurs and without prejudice to any other Remedies Penny Junction may have:
Penny Junction, its employees or agents may (without prejudice to any of its other rights) without previous Notice retake and resume possession of the Goods and may enter the Buyer’s premises or any other place where the Goods may be;
Penny Junction may sell the Goods to a third party and any expenses incurred by Penny Junction resulting from that sale including storage, auction or any other charges, will be paid by the Buyer immediately;
Penny Junction may sue the Buyer and claim damages for all direct and indirect and consequential losses suffered or incurred by Penny Junction as a result of the Event of Default.
Credit:
If Penny Junction has provided the Buyer credit, Penny Junction reserves the right to cancel or vary the credit limit and may refuse to supply the Goods on credit to the Buyer at any time.
Force majeure:
Where Penny Junction is unable, wholly or in part, by reason of any acts 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 transfer, inability or delay in obtaining governmental or quasi governmental approvals, consents, permits, licenses, authorities or allocations, and any other cause whether of the kind specifically enumerated above or otherwise, which is not reasonably within the control of Penny Junction ("Force Majeure") to carry out the obligations under this Agreement and Penny Junction: gives the Buyer prompt notice of that Force Majeure with reasonable full particulars and the probable extent to which Penny Junction will be unable to perform or be delayed in performing that obligation;
uses reasonable diligence to remove that Force Majeure as quickly as possible;
that obligation is suspended so far as it is affected by a Force Majeure during the continuance of that event.
The requirements that any Force Majeure will be removed with reasonable diligence will not require the settlement of strikes, lockout or other labour disputes or claims or demands by any government on terms contrary to those terms on which Penny Junction is prepared to settle.
Goods and services tax:
Except where these Terms and Conditions states otherwise an amount payable by a party for a taxable supply made by another party under these Terms and Conditions is expressed as a GST exclusive amount.
If a party makes a taxable supply under these Terms and Conditions, then the party liable to pay for the taxable supply must also pay to the supplier the GST payable in respect of the taxable supply at the time payment for the taxable supply is due.
The Parties acknowledge that the following transactions should not be subject to GST: where Penny Junction exports Goods outside of Australia; or
where the Goods have no connection with Australia and are not sold from or to an entity based in Australia.
Notice:
A notice or communication to be served or given under these Terms and Conditions must be in writing and may be served or given by any lawful means of service within the State of Victoria including without limitation service by hand delivery, ordinary, certified or registered pre-paid post or by facsimile transmission. The date a notice is deemed served, given and received is: if delivered by hand, the day of delivery but if delivery takes place after 4:00 pm on a business day or on a day that is not a business day then it is deemed served, given and received on the next business day;
if posted, three (3) business days after the day it is posted;
if by facsimile transmission, on the day of transmission but if transmission is not on a business day or is not completed by 4:00 pm on a business day then it is deemed served, given and received the next business day.
The address and facsimile number at which a party may be served or given notices under these Terms and Conditions is its address and facsimile number as appearing in this document or such other address or facsimile number for service it notifies the other parties of in writing.
Non merger:
The provisions of these Terms and Conditions which are capable of having effect after completion of any transaction referred to in these Terms and Conditions including without limitation warranties and indemnities do not merge on completion of any transaction referred to in these Terms and Conditions.
Further Assurances:
The parties each agree to sign all documents and do all things reasonably required to give full effect to the transactions recorded in these Terms and Conditions.
Severability:
As far as is possible these Terms and Conditions are to be construed so as not to be void, voidable, unenforceable or illegal, but if any part of these Terms and Conditions are void, voidable, unenforceable or illegal by operation of any law, then the offending part of these Terms and Conditions as far as is possible is to be read down to the extent necessary to make sure that it is not invalid, unenforceable or illegal but if it cannot be so read down then it is to be deemed severed without affecting the remainder of these Terms and Conditions which will continue to apply as amended.
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