Greg Wells Enterprises Pty Ltd: ABN 85 718 519 282
Trading as: Bentleigh Group
These terms and conditions apply to all Goods sold by to Customers by Bentleigh Group. By placing an order with Bentleigh Group the Customer shall be deemed to have accepted these terms and conditions.
1.0 DEFINITIONS AND INTERPRETATION
1.1 Unless inconsistent with context: "Agreement" means these Terms and Conditions of Sale as amended from time to time. "Goods" means all products sold or offered for sale by Bentleigh Group “GST” means the GST as defined in the A New Tax System (Goods and Services Tax) Act 1999. “Supply” means the delivery and/or installation of Goods at premises nominated by the Customer.
1.2 All words importing the singular shall include the plural and vice versa and any one gender shall include each of the other genders, if applicable.
1.3 Reference to a person shall include a reference to a body corporate firm or partnership.
1.4 Reference to a party includes the party’s executors, administrators, successors and permitted assigns.
1.5 Reference to dollars or $ is to Australian Dollars. 1.4 “Including” and similar expressions are not words of limitation.
1.6 Headings are for convenience only and shall not affect the interpretation of this Agreement.
1.7 A provision of this Agreement must not be construed to the disadvantage of a party merely because that party was responsible for the preparation of the Agreement or the inclusion of the provision in the Agreement.
2.1 The Customer’s order shall not be binding on Bentleigh Group until accepted in writing by Bentleigh Group.
2.2 Bentleigh Group reserves the right to accept in whole or in part or reject any order submitted by the Customer.
3.1 All works under $1,000.00 are on a C.O.D basis, and payment is required by either credit card or bank transfer prior to the commencement of work.
3.2 Until such time as a satisfactory trading history has been established, Bentleigh Group requires payment by the customer of a 30% deposit prior to the commencement of any work pursuant to the quotation or tender.
3.3 The customer agrees that Bentleigh Group is entitled to invoice the customer progress claims and that the customer shall pay such progress claims within 14 days of invoice.
3.4 The price of Goods shall be the price effective at the time of delivery as indicated on the invoice.
3.5 The Customer shall pay to Bentleigh Group the amount of each invoice within 14 days from the date of invoice or as otherwise agreed in writing between the parties.
3.6 Unless stated otherwise, prices are exclusive of GST, other taxes, duties, charges (including bank fees) and the costs of supply which shall be paid by the Customer unless otherwise agreed.
3.7 The Customer shall not be entitled to deduct from or withhold any amount from payments due to Bentleigh Group. Only payment of the entire invoiced amount shall be deemed discharge of the invoice. Where any lesser amount is paid, such amount will be treated as a partial payment and without prejudice to Bentleigh Group’s right to recover the balance or to pursue any other remedy.
3.8 Defects or damage must be claimed under warranty and Bentleigh Group must act promptly and professionally to resolve any claims within a reasonable period of time.
4.1. Delivery supply times quoted by Bentleigh Group are estimates only based on the best available information available at the time a quotation is supplied to a customer. Bentleigh Group will apply its best endeavors to nominate an achievable supply date acceptable to the customer and to supply the goods in accordance with that date. Notwithstanding, the customer acknowledges that this estimated date of supply may be affected by circumstances outside the control of
Bentleigh Group and therefore the actual supply date may vary from the date estimated for supply. Bentleigh Group shall be under no liability whatsoever nor shall the Customer be relieved of any obligation to accept or pay for the Goods by reason of any delay in delivery arising from those heretofore mentioned circumstances.
4.2 Acknowledgement by the Customer or the Customer’s agent in writing that the goods were supplied shall be conclusive proof of delivery by Bentleigh Group.
5.1 Risk of loss, damage or deterioration to the Goods shall pass to the Customer upon supply to the customer at the nominated premises.
Until full and final payment is received by Bentleigh Group:
6.1.1 all legal and equitable title in the Goods shall remain with Bentleigh Group 6.1.2 the Customer is in possession of the Goods solely as Bailee for Bentleigh Group
7.0 RETURN OF GOODS
7.1 The Customer shall not be permitted to reject or return Goods as being not in accordance with its order unless it notifies Bentleigh Group in writing within 24 hours of delivery and installation.
7.2 Bentleigh Group is under no obligation to accept the return of Goods by the Customer except for the purposes of an examination under clause 7.1.
7.3 Goods returned under clause 7.1 must be in the same condition as they were supplied with a valid Return Authorisation Notice.
7.4 Where the Customer rejects, returns, fails to collect or refuses to accept Goods, due to no fault of Bentleigh Group, Bentleigh Group may at its option recover the Goods and/or dispose of the Goods and the Customer shall be liable for any losses suffered by Bentleigh Group in relation to such disposal.
8.0 INTELLECTUAL PROPERTY
8.1 The customer acknowledges that unless otherwise provided for under copyright legislation or by prior agreement with Bentleigh Group any and all documentation supplied by Bentleigh Group relating to artwork, engineering or workshop drawings, and engineering computations remains the intellectual property of Bentleigh Group. The Customer agrees to use such information in accordance with those terms and conditions and acknowledges that Bentleigh Group gives no warranty in relation to that information.
8.2 The Customer indemnifies Bentleigh Group against any damage, loss, costs or expenses (including legal expenses on an indemnity basis) incurred by Bentleigh Group arising from any use elsewhere by the Customer of information pertaining to Bentleigh Group’s intellectual property.
9.1 All conditions, warranties and liabilities, including implied warranties of quality, fitness for purpose, correspondence with sample or description or merchantability of Goods, are hereby excluded to the extent permitted by law.
9.2 The Customer accepts all risk and responsibility for the Goods being fit for purpose, of particular quality, safety or suitability and agrees that no representation has been made by Bentleigh Group or relied upon by the Customer in respect of the same.
9.3 Where warranties or conditions which are implied by law (including under the Trade Practices Act 1974) cannot be excluded, Bentleigh Group’s liability under such warranties and conditions is limited, at Bentleigh Group’s option, to:
9.3.1 the replacement of the Goods or the resupply of equivalent Goods;
9.3.2 the repair of the Goods; or
9.3.3 the refund of the price paid for the Goods.
9.4 Where Goods or any component thereof are manufactured by a third party manufacturer, the Customer agrees that any warranty provided by the third party manufacturer is the Customer’s sole and exclusive warranty in relation to those Goods or components and Bentleigh Group gives no warranty in respect of those Goods.
9.5 The product should be maintained so as to ensure that no damage occurs through lack of regular maintenance. Bentleigh Group recommends 18 month maintenance checks.
10.1 Where the Customer fails to make payment in full or otherwise breaches any term of this Agreement, Bentleigh Group may without prejudice to any of its other rights and remedies and at its absolute discretion:
10.1.1 withhold delivery or further delivery of any Goods ordered by the Customer;
10.1.2 recover the goods and enter upon the Customer’s premises for that purpose ;
10.1.3 terminate this Agreement and retain any monies paid by the Customer as liquidated damages and a genuine pre-estimate of damage suffered; and the Goods;
10.1.4 charge the customer interest at the penalty fixed interest rate under the S.2 of the Penalty Interest Rates Act 1983 (Vic) together with all costs, charges and expenses (including legal costs on the solicitor-client basis) incurred by Bentleigh Group in the recovery of all amounts due from the customer.
10.2. Bentleigh Group may without prejudice to any of its other rights and remedies exercise its rights under clause 9.1 above in the event that the Customer:
10.2.1 exceeds any credit limit assigned to it by BCSA
10.2.2 being a natural person, becomes bankrupt, commits an act of bankruptcy or enters into an arrangement with creditors;
10.2.3 being a corporation, becomes an externally administered entity or fails to comply with a statutory demand pursuant to the Corporations Act; or
10.2.4 causes Bentleigh Group to reasonably doubt its ability to make payment in full in accordance with this Agreement. 10.3 Nothing in this Agreement shall be taken as releasing the Customer from its obligation to pay for Goods supplied by Bentleigh Group.
11.1 The total liability of Bentleigh Group under this Agreement (whether based on contract, tort, statute or otherwise) is limited to the amount actually paid by the Customer for Goods supplied by Bentleigh Group.
11.2 The Customer indemnifies Bentleigh Group against any damage, loss, costs or expenses (including legal expenses on an indemnity basis) directly or indirectly suffered by Bentleigh Group arising from or in connection with any breach by the Customer of any term of this Agreement.
11.3 Under no circumstances will Bentleigh Group be liable for any incidental, indirect, special, exemplary or consequential loss or damage, including loss os use, profit, revuew, goodwill or data, howsoever caused.
12.1 This Agreement shall only be varied by written agreement signed by an authorised representative of both parties.
12.2 Bentleigh Group shall not be liable for any failure or delay in performance of its obligations or for any loss or damage suffered by the Customer as a consequence of any cause whatsoever, direct or indirect, beyond the control of Bentleigh Group.
12.3 This Agreement supersedes all prior agreements, representations and undertakings and constitutes the entire agreement between the parties relating to the subject matter.
12.4 The Customer may not assign the whole or any part of this Agreement without the prior written consent of Bentleigh Group.
12.5 In the event of any inconsistency between this Agreement and any other document, the terms of this Agreement shall prevail. Any error or omission in quote, price list or offer issued by Bentleigh Group shall be subject to correction without liability to Bentleigh Group.
12.6 Delay or failure by Bentleigh Group to exercise any right or partial right under this Agreement shall not be deemed to constitute a waiver of any such right or any other rights. Consent by Bentleigh Group to a breach of a term of this Agreement shall not constitute consent to any subsequent breach.
12.7 If any term of this Agreement is found to be unenforceable for any reason the remainder of this Agreement shall remain in full force and effect.
12.8 In the event of the Goods consisting of more than one item, then Bentleigh Group may at its option treat all items forming the subject matter of the Goods as a single unit.
12.9 This Agreement is governed by the law of Victoria and the parties submit to the jurisdiction of the courts of Victoria and waive any right they may have to claim that those courts are inconvenient forums. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.