The placing of or proceeding in any matter with any order by the Buyer shall be deemed acceptance by the Buyer of these terms and conditions.
'Products' are any of the range of products sold by Dry-Treat.
1.1 All orders and sales contracts are subject to acceptance or rejection by Dry-Treat, and are not binding on Dry-Treat unless and until so accepted. Acceptance of any order by Dry-Treat constitutes a complete and binding contract subject to these terms and conditions of sales. Acceptance is at all times subject to availability for delivery of the Products covered by each order, and to Dry-Treat prices for the Products in effect at the time of shipment unless otherwise agreed in a separate agreement signed by the Buyer and Dry-Treat. Prices on the invoice are those in effect on the date this document was issued.
2.1 Determination of the suitability or fitness of the Products described in the invoice for the use or purpose contemplated by the Buyer or the Buyer's customers shall be the responsibility of the Buyer, and Dry-Treat shall have no responsibility or liability in this respect. The Buyer assumes all risk and liability for loss, damage, or injury to property or Buyer or others and for all personal injuries caused to Buyer or others arising out of the use or possession of the Products. The Buyer agrees to indemnify Dry-Treat against all claims, demands and actions brought by others against Dry-Treat or its' servants or agents in respect of loss damage or injury to persons or property arising out of the use or possession of the Products.
3.1 Dry-Treat warrants that the Products supplied shall conform to the description or specifications stated in the invoice. To the full extent allowed by law, the liability of Dry-Treat with respect to any breach of the warranty shall be limited, at the option of Dry-Treat, to payment of the cost of replacing the Products or of acquiring equivalent Products, and in no case shall Dry-Treat be liable for consequential loss or damage. Nothing contained in this contract excludes, restricts or modifies any condition, warranty, right or remedy which, pursuant to the Trade Practices Act 1974 (The "Act"), applies to this contract or is conferred upon the Buyer, provided that to the extent that the Act permits Dry-Treat to limit its liability for a breach of condition or warranty implied by the Act, then the liability of Dry-Treat for such a breach shall be limited, in the case of Products supplied pursuant to this Agreement, to the payment of the cost of replacing the Products or of acquiring equivalent Products.
4.1 The risk of loss or delay in relation to all Products supplied shall pass to Buyer upon Dry-Treat's delivery to the Buyer's nominated carrier at the shipping point or store of Dry-Treat notwithstanding any payment of freight by Dry-Treat.
5.1 Dry-treat shall retain title and ownership of the Products until such time as the Buyer has paid for them.
5.2 Dry-Treat shall be entitled to recover the Products from the Buyer in the event that the Buyer does not pay for them within 28 days.
6.1 Orders with indefinite delivery dates are accepted upon the understanding that Dry-Treat shall have the right to fill said order as it sees fit in the course of the manufacturing or importation schedules and to hold the Products for the Buyer's account at the Buyer's expense and risk pending receipt of definite shipping instructions and, where required, of government authorization.
8.1 The Buyer must indemnify Dry-Treat against any liability, loss, damage or expense (including legal costs on a full indemnity basis) incurred as a result of any of the following:
7.1.1 a wilful or negligent act or omission by the Buyer;
7.1.2 any warranty or representation made by the Buyer that was inaccurate or misleading.
8.1 All conditions and warranties of any type in relation to the Product are excluded to the maximum extent allowed by the law. In respect of product which is not of a kind ordinarily acquired for personal, domestic or household use or consumption, the liability of Dry-Treat for a breach of any condition or warranty implied by law is limited to the replacement of the Product or the supply of equivalent Product.
9 Change or cancellation of orders
9.1 Dry-Treat will give due consideration to any request of the Buyer for modification or cancellation of its order or release against an order, but the order may not be modified or cancelled without the written consent of Dry-Treat. The waiver by Dry-Treat of a breach by the Buyer of any provision of the order shall not constitute a waiver of any other breach by Buyer or of a subsequent breach of that or any provision by the Buyer.
10.1 In the event of war, fire, flood, strike, labour trouble, accident, riot, act of government authority, act of God or other contingencies beyond the control of the parties, interfering with the production, supply, transportation or consumption of the Products covered by this order, or with the supply of any raw material used in connection therewith, quantities so affected may be eliminated from the contract without liability, but the contract shall otherwise remain unaffected. Dry-Treat may during any period of shortage due to any of the said causes, pro rata its supply of such Products among its customers under this and other orders and contracts in such manner as Dry-Treat may deem fair and practicable.
11.1 On any individual order or release against or order for Products not stocked as a standard item, or not packed in standard cartons or packages, or on which special fabrications are required, Dry-Treat reserves the right to supply and invoice for a quantity of Products which may vary up to 10 percent over or under the quantity specified on the individual release and the buyer shall accept delivery and pay for such revised quantity.
12.1 Unless otherwise specified, quotations are for information only, and are not intended as an offer and are subject to change without notice in all respects, including prices, delivery date, terms, quantities or specifications.
13.1 Terms of payment shall be as stated in these terms and conditions. If the Buyer's credit is unsatisfactory to Dry-Treat, the latter reserves the right to require payment either by:
13.1.1 cash with the order, or
13.1.2 cash payment of sight draft against Bill of Lading or (Under b),
13.1.3 The Buyer at Dry-Treat's option may be charged all collection fees.
13.2 Invoices are payable in Australian currency only, unless otherwise stated.
13.3 Future dates may be given on invoices.
14.1 Unless otherwise stated carriage of Products within the continent of Australia will be made with freight pre-paid. Dry-Treat shall have the right to select the means of transportation. If the Buyer requires a means of transportation other than that which may be selected by Dry-Treat, any extra cost incurred by reason of using such other means shall be paid by the Buyer. It shall be the Buyer's responsibility to take out such insurance during carriage, as he considers appropriate. In the event of any general increase or any ruling or regulation affecting such rates resulting in increased freight charges, Dry-Treat may, at its option, increase its price to reflect such additional freight charges without advance notice.
15.1 Each shipping container for which a deposit is charged remains the property of Dry-Treat and must not be used for the shipment or storage of any other material. All such containers must be emptied and returned to the point from which shipped within sixty (60) days from date of invoice, transportation charges collect. If so returned in good condition, the deposit charge will be returned.
16.1 Products sold by Dry-Treat may be returned for credit within two months from the date of shipment of the Products if permission for such return is granted by Dry-Treat in writing. A restocking fee of 15% of the invoice value may be applied at Dry-Treat�s discretion to cover its administration and other costs.
17.1 An action for breach of this contract must be commenced within two (2) years after the cause of action has accrued.
18.1 The above terms and conditions represent the entire agreement between Dry-Treat and the Buyer with respect to the sale of the Products specified in the order and this agreement cannot be modified except by a new written order signed by both Dry-Treat and Buyer covering the sale of the Products.
19.1 For Products sold in the European Union this contract shall be governed by and construed in accordance with the laws of England and Wales and are subject to the exclusive jurisdiction of its Courts.
19.2 For Products sold outside of the European Union this contract shall be governed by and construed in accordance with the laws of the State of New South Wales, Australia and are subject to the exclusive jurisdiction of its Courts.
20.1 The rights and duties under this contract are not assignable or transferable by either party without Dry-Treat's consent.
21.1 The Buyer acknowledges that the terms and conditions set out in this page are the standard terms and conditions upon which Dry-Treat contract with all of its customers including the Buyer. Unless otherwise agreed by Dry-Treat in writing, these terms and conditions shall apply to all future contracts entered into between Dry-Treat and the Buyer.