Unless the contrary intention appears:
‘Cenvet ’ means Cenvet Australia Pty Limited - ABN 70 097 206 187 which is the seller of the Goods.
‘Goods’ means the goods and, if any, services supplied by Cenvet to the Purchaser.
‘Purchaser’ means the Purchaser of the Goods.
Nothing in these terms shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Trade Practices Act 1974) and which by law cannot be excluded, restricted or modified.
These terms (which shall only be waived in writing signed by Cenvet ) shall prevail over all terms of any Purchaser’s order to the extent of any inconsistency.
3. TERMS OF SALE
The Goods are sold on these terms.
Unless previously withdrawn, Cenvet ’s quotations are open for acceptance within the period stated in them or, when no period is so stated, within 30 days only after its date. Cenvet reserves the right to refuse any order based on this quotation within seven (7) days after the receipt of the order.
5.1 Provisionally Accepted
Orders shall be regarded as provisionally accepted to the extent notified in writing by Cenvet.
5.2 Goods out of Stock
When Goods are out of stock, they will be delivered with the Purchaser’s next order unless the Purchaser instructs Cenvet otherwise.
The Purchaser waives any claim for shortage of any Goods delivered if a claim has not been lodged with Cenvet within seven (7) days from the date of receipt of the Goods by the Purchaser.
Any performance figures given by Cenvet are estimates only. Cenvet shall be under no liability for damages for failure to attain such figures unless specifically guaranteed in writing and any such written guarantee shall be subject to the recognised tolerances applicable to such figures.
The delivery times made known to the Purchaser are estimates only and Cenvet shall not be liable for late delivery or non-delivery and under no circumstances shall Cenvet be liable for any loss, damage or delay occasioned to the Purchaser or its Purchasers arising from late or non-delivery or late installation of the Goods.
If any of the Goods prove faulty, Cenvet shall replace them, repair them or grant an appropriate credit to the Purchaser in the absolute discretion of Cenvet.
Goods may also be returned to Cenvet in good order and condition for credit.
Returned Goods will not be granted an appropriate credit or be replaced or repaired unless they are returned within 7 days from the date of delivery, accompanied by the invoice number and the reason for return. Under no circumstances will Goods be accepted for credit or exchange if its container has been opened or the label on it damaged or, the goods have been used.
Non faulty goods will incur a restocking charge of $25 (See Cenvet credit policy)
WARRANTY AND LIABILITY
9.1 Goods Manufactured by Cenvet
Cenvet ’s liability for Goods manufactured by it is limited to making good any defects by repairing the same or at Cenvet ’s option by replacement, within a period not exceeding twelve calendar months after the Goods have been dispatched provided that:
(a) defects have arisen solely from faulty materials or workmanship;
(b) the Goods have not received maltreatment, inattention or interference.
(c) Accessories of any kind used by the Purchaser are manufactured by or approved by Cenvet.
(d) the seals of any kind on the Goods remain unbroken; and
(e) the defective parts are promptly returned free of cost to Cenvet .
9.2 Goods not Manufactured by Cenvet
If Goods are not manufactured by Cenvet the warranty of the manufacturer shall be accepted by the Purchaser and is the only warranty given to Purchaser in respect of the Goods.
9.3 Design Faults
Cenvet shall not be liable for and Purchaser releases Cenvet from any claims in respect of faulty or defective design of any Goods supplied unless such design has been wholly prepared by Cenvet and the responsibility for any claim has been specifically accepted by Cenvet in writing and in any event Cenvet ’s liability hereunder shall be strictly limited to the replacement of defective parts.
9.4 Exclusion of Liability
Except as provided herein, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are hereby expressly excluded and Cenvet shall not be liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of Cenvet or in any way whatsoever.
The Purchaser acknowledges to Cenvet that (except for the specific warranties and representations made by Cenvet in this Agreement):
(a) he has entered into this Agreement relying entirely upon his own independent appraisal and assessment of the Goods.
(b) he does not rely upon any warranty, statement or representation made or given by or on behalf of Cenvet .
(c) he is fully aware of the contents of this Agreement.
(d) to the fullest extent possible he waives any possible cause or action or rights it may have under or in respect of Part V of the Trade Practices Act 1974 or Part 5 of the Fair Trading Act 1987 or any other legislation which is to any extent similar to such Part V or Part 5 or any portion of such legislation touching or concerning anything the subject of or incidental to this Agreement and releases and indemnifies to the fullest extent possible Cenvet and all persons or entities associated with Cenvet from and against (as the case may be) any claim or liability (if any) arising out of or incidental to any such cause of action or right or any like cause of action or right of any other person or entity whatsoever.
10. TRADE PRACTICES ACT
Cenvet ’s liability for a breach of a condition or warranty implied by Div 2 of Pt V of the Trade Practices Act 1974 (other than s69) is hereby limited to:
In the case of Goods, any one or more of the following
(a) the replacement of the Goods or the supply of equivalent Goods;
(b) the repair of the Goods;
(c) the payment of the cost of replacing the Goods or of acquiring equivalent Goods;
(d) the payment of the cost of having the Goods repaired; or
In the case of services:
(a) the cost of replacing the Goods;
(b) the cost of obtaining equivalent Goods; or
(c) the cost of having the Goods repaired, whichever is the lowest amount.
11. PRICES, DISCOUNTED PRICES & BONUSES
Unless otherwise stated all prices quoted by Cenvet are inclusive of any discount and GST. Prices of goods may vary without notice and will be the standard current published price for the Goods at the date of delivery, except where prices are those advertised or quoted. If discounted prices are not paid by the due date for payment as shown on the invoice then the standard current published price applies.
11.2 Discounted Prices and Bonuses
All Discounted prices and bonuses for Goods offered by Cenvet will apply for the duration of the offer or until stocks of the Goods are exhausted which ever is the earlier.
When to be made
Purchaser must pay without demand deduction or set off all sums due to Cenvet in respect of the supply by Cenvet to the Purchaser of Goods on or before the payment due date.
Consequences of Non-Payment
If payment is not made by its due date, then:
(a) The supply of further Goods by Cenvet to the Purchaser may be suspended; and
(b) The sum due shall bear interest commencing on the date when the sum first became due from day to day at an annual rate of at least 10% or as otherwise agreed by all parties.
(c) A payment made by a Diners or American Express card past the due date for payment automatically operates as an instruction to Cenvet to charge the nominated credit card with a credit card surcharge of 2.5% including GST.
14.1 Rights Reserved Until Payment
Cenvet reserves the following rights in relation to the Goods until all accounts owed by the Purchaser to Cenvet are fully paid:
(i) legal ownership of the Goods;
(ii) to enter the Purchaser’s premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and
(iii) to keep or resell any Goods repossessed pursuant to (ii) above.
14.2 Resold Goods
If the Goods are resold, or products manufactured using the Goods are sold, by the Purchaser, the Purchaser shall hold such part of the proceeds of any such sale as represents the invoice price of the Goods sold or used in the manufacture of the Goods sold in separate identifiable account as the beneficial property of Cenvet and shall pay such amount to Cenvet upon request. Not withstanding the provision above Cenvet shall be entitled to maintain an action against the Purchaser for the purchase price and the risk in the Goods shall pass to the Purchaser upon delivery.
Any property of the Purchaser under Cenvet ’s custody or control shall be entirely at the Purchaser’s risk as regards loss or damage caused to the property by Cenvet.
16 GOODS SOLD
All Goods to be supplied by Cenvet shall be as described on the purchase order agreed between Cenvet and the Purchaser and the description on such purchase order modified as so agreed shall prevail over all other descriptions including any Purchaser’s specification or enquiry.
No order may be cancelled except with consent in writing and on terms which will indemnify Cenvet against all losses.
This Agreement shall be governed and construed by the laws applicable in the State of New South Wales and the parties submit to the non-exclusive jurisdiction of the courts of that place in respect of any dispute of whatsoever nature arising under this Agreement or its implementation or enforcement.