Terms & Conditions

1.       Definitions

1.1     "Company" shall mean Carton Concepts Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Carton Concepts Pty Ltd.

1.2     "Customer" shall mean the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation or other form as provided by the Company to the Customer.

1.3     "Guarantor" means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.

1.4     "Goods" shall mean Goods supplied by the Company to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Company to the Customer.

1.5   "Services" shall mean all Services supplied by the Company to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).

1.6    "Price" shall mean the price payable for the Goods as agreed between the Company and the customer in accordance with clause 5 of this contract.

 

2.       The Australian Consumer Law ("ACL") and Fair Trading Acts ("FTA")

2.1     Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the ACL or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.

 

3.       Acceptance

3.1     On the Customer providing instructions to the Company for the supply of Goods and/or Services the Customer shall be deemed to have accepted the terms and conditions contained herein and at the time the instructions are so provided.

3.2     Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.

3.3     Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of the Company and shall continue to apply for all subsequent dealings between the Company and the Customer.

3.4     The Customer shall give the Company not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer's name and/or any other change in the Customer's details (including but not limited to, changes in the Customer's address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Company as a result of the Customer's failure to comply with this clause.

3.5    Goods are supplied by the Company only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer's order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.

 

4.       Guarantee and Indemnity

4.1     The Company may in its absolute and unfettered discretion require the director/s of the Customer or any person who owns more than fifteen percent (15%) of the shares in the Customer to provide a Guarantee and Indemnity on the terms of the Company's standard Guarantee and Indemnity and where the Company requires such Guarantee and Indemnity this agreement is subject to such director/s and/or shareholder executing the Guarantee and Indemnity.

 

5.       Price And Payment

5.1     The Price shall be the Company's quoted Price, including any variation to the quoted Price, (subject to clause 5.2) which shall be binding upon the Company provided that the Customer shall accept the Company's quotation in writing within fourteen (14) days.

5.2     Any variation of the Company's quotation shall only be deemed to have been made if the variation is incorporated onto the quotation or any other document by the Company and is signed by both parties.

5.3     The Customer shall pay to the Company ten percent (10%) of the Price simultaneous with the Customer's acceptance of the quotation.

5.4     Time for payment for the Goods shall be of the essence and will be as stated on the invoice or any other forms. If no time is stated then payment shall be due twenty (20) days following the date of the invoice.

5.5     If payment is made by credit card a surcharge of three percent (3.0%) of the price shall apply.

5.6    GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

 

6.       Delivery Of Goods

6.1     The Company shall use its best endeavours to deliver the Goods to the Customer within the time referred to on the quotation and where no period is stated in the quotation, within 60 days of the Customers’ acceptance of the quotation or where the quotation has been varied from the date of such variation.

6.2     In the event that the Company does not deliver the Goods to the Customer within the time as determined by clause 6.1 hereof or any further period agreed to by the parties, the Customer is entitled to by notice in writing to the Company, to cancel the order at any time prior to the delivery of the goods taking place.

6.3     At the Company's sole discretion delivery of the Goods shall take place when:
          (a) the Customer takes possession of the Goods at the Company's address; or
          
(b) if the Goods are delivered to the Customer by the Company, at the time the Goods are delivered to the Customer at its nominated address.

6.4     The Customer shall pay to the Company the cost of delivering the Goods to the Customer in addition to the Price unless the Price includes the cost of delivery.

6.5    The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Company shall be entitled to charge a reasonable fee for redelivery.

6.6     Delivery of the Goods to a third party nominated by the Customer is deemed to be delivered to the Customer for the purposes of this agreement.

6.7    If the Company fails to deliver the Goods by the due date or at all, the Customer's rights are limited to the right to cancel the order in accordance with clause 6.2 hereof and the Company shall not be liable for any loss or damage whatsoever due to such failure.

 

7.       Risk

7.1     Risk in the Goods passes to the Customer on delivery notwithstanding that the Company remains the owner of the Goods.

7.2     If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Customer remains liable to pay the Price to the Company and agrees to assign the full benefit of any insurance policy to the Company and agrees that the Company is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Company is sufficient evidence of the Company's rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries. Where the insurance proceeds received by the Company are less than the Price ("the deficiency') the Customer shall remain indebted to the Company for the deficiency and is due and payable immediately.

 

8.       Title

8.1     The Company and Customer agree that ownership or title in the Goods shall not pass until:

(a) the Customer has paid the Company all amounts owing for the Goods; and

(b) the Customer has met all other obligations due by the Customer to the Company in respect of all contracts between the Company and the Customer.

8.2     Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Company's ownership or rights in respect of the Goods shall continue.

8.3     It is further agreed that:

(a) where practicable the Goods shall be kept separate and identifiable until the Company shall have received payment and all other obligations of the Customer are met; and

(b) until such time as ownership of the Goods shall pass from the Company to the Customer the Company may give notice in writing to the Customer to return the Goods or any of them to the Company. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and

(c) the Company shall have the right of stopping the Goods in transit whether or not delivery has been made; and

(d) if the Customer fails to return the Goods to the Company then the Company or the Company's agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and

(e) the Customer is only a Bailee of the Goods and until such time as the Company has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to the Company for the Goods, on trust for the Company; and

(f) the Customer shall not deal with the money of the Company in any way which may be adverse to the Company; and

(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while the ownership and title in the Goods remain with the Company; and

(h) the Company can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer.

 

9.       Default & Consequences of Default

9.1     Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (1.5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment. The Company's entitlement to such interest shall be without prejudice to any statutory or other legal rights the Company may have to interest

9.2     If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in pursuing the debt including legal costs on a solicitor and own client basis and the Company's collection agency costs.

9.3     Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.

9.4     Without prejudice to the Company's other remedies at law the Company shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Company shall, whether or not due for payment, become immediately payable in the event that:

(a) any money payable to the Company becomes overdue, or in the Company's opinion the Customer will be unable to meet its payments as they fall due; or

(b) the  Customer becomes  insolvent, convenes  a  meeting  with its  creditors  or  proposes or  enters into  an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(c) a receiver, manager, liquidator  (provisional or otherwise) or similar person is  appointed in respect of the Customer or any asset of the Customer.

 

10.     Security And Charge

10.1   Despite anything to the contrary contained herein or any other rights which the Company may have howsoever:

(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Company or the Company's nominee to secure all amounts and other monetary obligations payable under these terms and conditions.  The Customer and/or the Guarantor acknowledge and agree that the Company (or the Company's nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.

(b) should the Company elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Company from and against all the Company's costs and disbursements including legal costs on a solicitor and own client basis.

(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Company or the Company's nominee as the Customer's  and/or Guarantor's true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 10.1.

 

11.     General

11.1   If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

11.2   These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria and are subject to the jurisdiction of the courts of Victoria.

11.3   The Company shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Company of these terms and conditions.

11.4   In the event of any breach of this contract by the Company the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.

11.5   The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by the Company.

11.6   The Company may license or sub-contract all or any part of its rights and obligations without the Customer's consent.

11.7  The Customer agrees that the Company may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Customer of such change.

11.8  Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.

11.9   The failure by the Company to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Company's right to subsequently enforce that provision.

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