The following are C R Kennedy & Company Pty Ltd general "Terms and Conditions of Trade". Unless you have been advised of any specific variation inﾠwriting by C R Kennedy, these general "Terms and Conditions of Trade" apply to all dealing with C R Kennedy.
1. Payment is to be made by cash, cheque, bank cheque or EFT without deduction, within 30 days of month end of month in which invoice was dated.
2.Interest will be charged on overdue accounts at the rate prescribed under the Penalties Interest Rates Act 1983 (Vic) rate plus an additional 2%.
3.Property: a) Property in the Products shall not pass to the Customer until payment in full of all monies owed by the Customer to C R Kennedy ("full payment") who reserves the right to take possession & dispose of Products as it sees fit at any time until full payment b) The Customer grants permission to C R Kennedy to enter any property where any Products are in order to do so & with such force as necessary c) Immediately upon delivery the Customer accepts liability for the safe custody of the Products & agrees to indemnify C R Kennedy for any losses relating thereto d) Upon sale or disposition of any Products prior to full payment, the Customer agrees to deposit all proceeds in a separate bank account, agrees not to mix proceeds with any other monies & will account to C R Kennedy therefore notwithstanding that C R Kennedy may have at any time granted any credit facility &/or time to pay e) Until full payment the Customer agrees (i) to keep all Products unpaid for as fiduciary for C R Kennedy & store them in a manner which shows C R Kennedy as owner (ii) only to sell Products in the usual course of its business on condition that the Customer holds all proceeds in trust for C R Kennedy (iii) sale on terms or for less than cost shall not be "in the usual course" f) This clause 3 is not intended to create a charge over any Products & shall be read down (but only to the extent necessary) to avoid creating a charge g) The Customer agrees Products will not become or be deemed fixtures to anything at any time & will be deemed to be dealt with on a "first in/first out" basis in all dealings with C R Kennedy h) If the Customer incorporates any Products in any process or manufacture or combines them with anything to create a finished or combined new thing, then upon any sale or disposition of such new thing prior to full payment, the Customer agrees to hold such part of the proceeds thereof (& until payment is received, that part of any applicable book debt of the Customer) as equals the costs of the Products incorporated therein, (at the prices invoiced to the Customer by C R Kennedy) upon trust for C R Kennedy until full payment.
4. Limitation of Liability: a) The Customer agrees to limit any claim it makes concerning any Products to the cost of replacement thereof b) C R Kennedy shall not be liable for any claim loss or expense arising which is made after 7 seven days from date of delivery (or at all once Products have been unpacked or otherwise used or applied) after which there shall be deemed to have been unqualified acceptance c) C R Kennedy will not be liable in any way for any contingent consequential direct or indirect special or punitive damage arising in any way & whether due to C R Kennedy's negligence or otherwise & the Customer acknowledges this express limit of liability & agrees to limit any claim accordingly d) No other term, condition, agreement, warranty, representation or understanding whatsoever whether express or implied in any way extending to or otherwise relating to or binding upon C R Kennedy, other than these Terms, is made or given.
5. Exclusions: a) Sample: No dealing between C R Kennedy & the Customer shall be or be deemed to be a sale by sample b) If C R Kennedy publishes material concerning its Products & prices anything so published which is incompatible with these Terms is expressly excluded c) the Customer will rely on its own knowledge & expertise in selecting any Products for any purpose, & any advice or assistance given for or on behalf of C R Kennedy shall be accepted at the Customer's risk & shall not be or be deemed to be given as expert or adviser nor to have been relied upon by the Customer or anyone claiming through the Customer. d) If C R Kennedy sells any Products manufactured or processed by another, it shall not be liable to any party for any damages arising in relation to the manufacture or process but will use reasonable endeavours to assist the Customer to make any appropriate claim on the manufacturer or processor under any warranty applicable.
6. Returns: Products are not returnable. If C R Kennedy elects to take back any Product it must be in as new & saleable condition & upon terms agreed & a re-stocking fee of not less than 20% of invoice value will apply.
7. Specific Orders: a) Custom made or custom ordered Products acquired by C R Kennedy specifically for the Customer will not be returnable b) such specific orders may be rejected by C R Kennedy unless accompanied by a non-refundable deposit of at least 50% of the total order price c) the Customer acknowledges & agrees that it is the Customer's sole responsibility to ensure that anything which is provided by or on behalf of the Customer, to be used by C R Kennedy in meeting any orders is correct & appropriate in every particular & acknowledges that this will be relied upon by C R Kennedy.
8. Placement of Orders: The Customer agrees a) in the event of any dispute arising over any order (including any question of identity, authority, any telephone, facsimile, e-commerce, email or computer order) that the internal records of C R Kennedy will be conclusive evidence of what was ordered in all respects b) each order it places shall be & be deemed to be a representation made at that time that it is solvent & able to pay all of its debts as & when they fall due c) failure to pay C R Kennedy in accordance with these Terms shall be & be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation & the representation was unconscionable, misleading & deceptive d) when any order is placed, the Customer shall inform C R Kennedy of any facts which might reasonably affect the decision by C R Kennedy to accept the order &/or grant credit in relation to it. Failure to do so by or on behalf of the Customer shall create & be deemed to create an inequality of bargaining position, shall constitute & be deemed to constitute the taking of an unfair advantage & to be unconscionable, misleading & deceptive.
9. Purchase Price: a) All sales are made by C R Kennedy at its ruling price at the time of delivery b) Government imposts, including any GST will be to the Customer's account c) Price lists exclude all imposts unless expressly noted thereon.
10. Delivery: The Customer acknowledges & agrees a) C R Kennedy accepts no responsibility or duty for delivery, but may elect to arrange delivery at its discretion & without any liability & at the Customer's costs & responsibility in all things b) C R Kennedy reserves the right to charge for any delivery c) the Customer shallﾠbe deemed to have accepted delivery & liability for the Products when C R Kennedy notifies the Customer that they are ready for collection or they are delivered to a carrier for delivery or to the Customer's business premises or site whether attended or not. d) the Customer agrees that a certificate purporting to be signed by an officer of C R Kennedy confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket e) C R Kennedy will not be liable for delay, failure or inability to deliver f) once notified that Products are ready for collection or delivery, the Customer will pay all subsequent costs of C R Kennedy in holding them.
11. Product Characteristic a) C R Kennedy makes no representation as to fitness or suitability of any Products for any purpose b) The Customer will check all Products for compliance with all relevant standards & regulatory requirements, before any use or application c) The Customer agrees to use &/or apply the Products in accordance with all such standards & regulations, with all the manufacturers recommendations & directions as well as with sound commercial practice & in the knowledge that it is delicate equipment & susceptible to adverse conditions (eg; heat, dust, rain, cold, direct sunlight, contaminants, chemicals, fuels etc) &/or mishandling d) All Products used or applied in or for any medical or medical related activity must only be used or applied under the supervision & direction of a duly qualified & responsible medical physician & in compliance with all applicable laws & requirements of authorities
12. Publications: If any warranty, document, disclaimer, instruction, warning or otherwise is published which relates in any way to any Products, whether by the manufacturer &/or C.R. Kennedy or otherwise, the Customer agrees that each publication will apply in conjunction with these Terms if there is no conflict or contradiction but that these Terms will prevail if there is any conflict or contradiction to the extent needed to resolve the conflict or contradiction.
13 Insurance: a) The Customer agrees to insure C.R. Kennedy from liability arising in any way under part VA of the Trade Practices Act, which insurance will note the insured interest of both the Customer & C.R. Kennedy b) The Customer also will fully indemnify C.R. Kennedy in relation to any loss, damage or claim whatsoever made against C.R. Kennedy under any provision of part VA of the Trade Practices Act.
14. Other Terms & Conditions: No terms & conditions sought to be imposed by the Customer upon C R Kennedy shall apply unless agreed by C R Kennedy in writing.
15. Recovery Costs: The Customer will pay the costs & expenses incurred by C R Kennedy or its solicitors, legal advisers, mercantile agents & other parties acting on its behalf in respect of anything instituted or being considered against the Customer whether for debt recovery, possession of any Products, action arising from any breach of these Terms, claims for loss & damage or otherwise.
16. Attornment: For the purpose of giving effect to the Customer's obligations arising under these Terms, the Customer hereby irrevocably appoints any solicitor acting for C R Kennedy from time to time, as its attorney in all things.
17. Variation of these Terms must be agreed in writing other than as set out in paragraph 24.
18. Defaults. Upon any default or breach hereof by the Customer, C R Kennedy may retain all monies paid &/or cease deliveries &/or recover from the Customer all loss of profits arising &/or at its discretion take immediate possession of any Product not paid for, without prejudice to any other of its rights & without being liable to any party
19. Severability:- Any part of these Terms shall be capable of severance without affecting any other part of these Terms.
20. Customer Restructure: The Customer will notify C R Kennedy in writing of any change in its structure or management including any change of director, shareholder, management or change in partnership or trusteeship within 7 days of any such change.
21. Jurisdiction: The Customer agrees that all dealings with C R Kennedy shall be deemed to be made in the State of Victoria, governed by Victorian law & agrees to submit to the jurisdiction of the appropriate Courts in or nearest Melbourne.
22. Credit Limit: If C R Kennedy grants any credit facility or nominates any credit limit, this is an indication only of its intention at the time & it can vary or withdraw any credit facility at any time & without any liability to the Customer or any other party.
23. Waiver: If C R Kennedy elects not to exercise any of its rights arising as a result of any breach of these Terms or otherwise, it shall not constitute a waiver of any rights of C R Kennedy relating to any other rights or any subsequent or other breach.
24. Notice: The Customer agrees it will be deemed to have notice of any change to these Terms immediately they are adopted &/or published by C R Kennedy on its website, whether or not the Customer has actual notice. The Customer shall be bound by any terms & conditions of sale adopted by C R Kennedy immediately they are so adopted &/or published, despite any other purported or pre-existing terms & conditions.
25. Security For Payment: The Customer agrees upon request, to charge in favour of C R Kennedy (i) by way of a fixed charge all its books of account, financial records, goodwill, documents of title & current & later acquired real property & intellectual property & (ii) by way of a floating charge, the whole of the Customers other undertaking, property & assets, with payment of all monies owed to C R Kennedy.
26. Forward Orders: The Customer agrees a) to pay for so much of any forward order as is invoiced by C R Kennedy b) that no delay or failure to fulfil any part of any order shall entitle the Customer to cancel or vary any order or delay or reduce any payment.
27. Force Majeure: C R Kennedy will not be in default or breach of any contract with the Customer by as a result of Force Majeure. Force Majeure means anything beyond the reasonable control of C R Kennedy & includes strikes & lock-outs
28. Intellectual Property: The Customer acknowledges & agrees a) C R Kennedy is the Australian distributor/agent for various lines of products which are listed on its websiteﾠwhich showsﾠrelevant commercial details, including exclusive distributorships/agencies, years held & details of any exclusive licenses/rights in Australia (eg: to enjoy & exploit intellectual property rights relating to those products including patents, Trade Marks, copyright in all published & printed materials, designs, trade secrets & know-how etc) b) C R Kennedy has over many years invested substantial money, time & effort to promote & develop the market for its range of products in Australia & has created & enjoys a substantial goodwill in the product names, range of products & services in Australia ("C R Kennedy Investment") c) the Customer will not do or permit anything to be done, directly or indirectly to diminish in any way the C R Kennedy Investment, whether by act, omission, representation, misrepresentation, parallel importation of any products, passing-off or otherwise