Conditions of Sale
All orders are accepted and all sales made subject to the terms and conditions on the invoice and to the following provisions.
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 STAIN-PROOF®.
1.1 All orders and sales contracts are subject to acceptance or rejection by STAIN-PROOF, and are not binding on STAIN-PROOF unless and until so accepted. Acceptance of any order by STAIN-PROOF 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 STAIN-PROOF prices for the Products in effect at the time of shipment unless otherwise agreed in a separate agreement signed by the Buyer and STAIN-PROOF. Prices on the invoice are those in effect on the date this document was issued.
2 End Use
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 STAIN-PROOF 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 STAIN-PROOF against all claims, demands and actions brought by others against STAIN-PROOF 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 STAIN-PROOF 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 STAIN-PROOF with respect to any breach of the warranty shall be limited, at the option of STAIN-PROOF, to payment of the cost of replacing the Products or of acquiring equivalent Products, and in no case shall STAIN-PROOF 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 STAIN-PROOF to limit its liability for a breach of condition or warranty implied by the Act, then the liability of STAIN-PROOF 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 Risk of Loss
4.1 The risk of loss or delay in relation to all Products supplied shall pass to Buyer upon STAIN-PROOF's delivery to the Buyer's nominated carrier at the shipping point or store of STAIN-PROOF notwithstanding any payment of freight by STAIN-PROOF.
5 Retention of Title
5.1 STAIN-PROOF shall retain title and ownership of the Products until such time as the Buyer has paid for them.
5.2 STAIN-PROOF 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 Orders for indefinite delivery
6.1 Orders with indefinite delivery dates are accepted upon the understanding that STAIN-PROOF 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 STAIN-PROOF 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 STAIN-PROOF 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 STAIN-PROOF 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 STAIN-PROOF. The waiver by STAIN-PROOF 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. STAIN-PROOF 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 STAIN-PROOF may deem fair and practicable.
11 Quantity Variations
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, STAIN-PROOF 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 Terms of Payment
13.1 Terms of payment shall be as stated in these terms and conditions. If the Buyer's credit is unsatisfactory to STAIN-PROOF, 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 STAIN-PROOF'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. STAIN-PROOFshall 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 STAIN-PROOF, 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, STAIN-PROOF may, at its option, increase its price to reflect such additional freight charges without advance notice.
15 Returnable Containers
15.1 Each shipping container for which a deposit is charged remains the property of STAIN-PROOF 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 Return of Products
16.1 Products sold by STAIN-PROOF may be returned for credit within two months from the date of shipment of the Products if permission for such return is granted by STAIN-PROOF in writing. A restocking fee of 15% of the invoice value may be applied at STAIN-PROOF's discretion to cover its administration and other costs.
17 Commencement of Suit
17.1 An action for breach of this contract must be commenced within two (2) years after the cause of action has accrued.
18 Entire Agreement
18.1 The above terms and conditions represent the entire agreement between STAIN-PROOF 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 STAIN-PROOF and Buyer covering the sale of the Products.
19 Applicable Law
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 STAIN-PROOF's consent.
21 Standard Terms
21.1 The Buyer acknowledges that the terms and conditions set out in this page are the standard terms and conditions upon which STAIN-PROOF contract with all of its customers including the Buyer. Unless otherwise agreed by STAIN-PROOF in writing, these terms and conditions shall apply to all future contracts entered into between STAIN-PROOF and the Buyer.