1. These conditions of sale apply to all transactions between the Purchaser of the Goods attached to this Invoice (“the Buyer”) and Gray’s Health & Fitness Pty Ltd (ABN 31 715 334 460) (“the Seller”), including all quotations, offers, orders or sales.
2. These conditions (which will only be waived or varied in writing signed by the Seller) will prevail over all conditions of the transaction to the extent of any inconsistency.
3. While the Seller endeavours to keep delivery dates, any delay of delivery, for any reason whatsoever, will not entitle the Buyer to claim for any consequential loss or damage or to cancel, rescind or terminate the agreement.
4. Should circumstances beyond the control of the Seller prevent or hinder delivery, the Seller will be free from any obligation to deliver goods while such circumstances continue. For as long as such circumstances exist, the Seller may, at its option, cancel, rescind or terminate all or any part of the contract or keep the contract on foot until such circumstances have ceased. Such circumstances beyond the control of the Seller include, but are not limited to: strikes, lockouts, rebellions; fire; acts of God; shortages of raw materials; Government decrees, proclamations or orders; transport difficulties; and failures or malfunctions of computers or other information technology systems.
5. The Seller reserves the right to over-supply or under-supply any order within reasonable limits. The Buyer will pay for any such over-supply at the unit price for the delivered goods.
6. Deliveries by instalments must be requested by the Buyer within the times stipulated in the contract.
7. Where the Buyer fails to request or accept instalment deliveries in accordance with the terms of the contract:
(a) the Seller may store the goods at the risk and cost of the Buyer; and
(b) the Buyer will be deemed to be in default of payment for the delivery.
8. Where goods are ordered for delivery by instalments, each instalment delivery is deemed to be a separate order and a separate contract performed by the Seller upon delivery of that instalment.
9. Risk in each order will pass to the Buyer upon delivery of that order to the Buyer or upon collection of that order by the Buyer’s agent or courier as the case may be.
10. Subject to clause 7, where, in accordance with these terms, the Seller accepts return of any goods, risk in those goods will revert to the Seller upon delivery of the goods to the Seller or upon collection of the goods by the Seller’s agent or courier as the case may be.
11. Any property of the Buyer’s under the Seller’s custody or control will be entirely at the Buyer’s risk as regards loss or damage caused to the property or by it.
Retention of Title
12. Notwithstanding delivery of the goods to the Buyer, until the Buyer has effected full payment for the goods and any other goods previously supplied by the Seller:
(a) legal title to the goods will remain with the Seller;
(b) the risk in the goods will pass to the Buyer on delivery to the Buyer or its agent;
(c) the relationship between the Seller and the Buyer will be fiduciary;
(d) the Buyer will:
(i) hold the goods as bailee for the Seller;
(ii) keep these goods separate from other goods; and
(iii) label the goods so that they are identifiable as the goods of the Seller;
(e) with the Seller’s consent (which is given), the Buyer is at liberty to sell the goods, in the ordinary course of the Buyer’s business, provided that the money resulting from the sale will:
(i) be held in a separate account in trust for the Seller;
(ii) not be mingled with other money; and
(iii) not be placed into an overdrawn account; and
(f) in the event that the Buyer uses the goods in some manufacturing or construction process of its own or of some third party then the Buyer will hold such part of the proceeds of such manufacturing or construction process as relates to the goods in trust for the Seller. Such part will be deemed to equal in dollar terms the amount owning by the Buyer to the Seller at the time of receipt of such proceeds.
13. The Buyer is not an agent of the Seller in any sale of the goods by the Buyer.
14. After the happening of an Event of Default, the Seller may without demand retake possession of the goods and may without notice sell the goods on such terms and in such manner as it determines and will be entitled to deduct all expenses incurred. For the purposes of recovering possession and without limiting the generality of the foregoing, the Buyer irrevocably authorises and licenses the Seller and its servants and agents to enter any premises where any goods may be stored and to take possession of the goods.
15. The Buyer will pay the full price of each order to the Seller in accordance with the following payment requirements stipulated by the Seller on the invoice to the Buyer;
(a) 50% deposit paid to secure order of the goods. Gray's Fitness reserves the right to sell the goods if a 50% deposit is not received within 48 hours.
(b) Full payment received prior to delivery of the goods.
Full payment when the Buyer picks up the goods from the Seller.
(c) In accordance with terms and conditions of pre-arranged financial agreements.
If payment is not made in accordance with the payment requirements of the Seller then the Seller may without demand retake possession of the goods and may without notice sell the goods on such terms and in such manner as it may determine and will be entitled to deduct all expenses incurred. For the purpose of recovering possession, and without limiting the generality of the foregoing the Buyer hereby irrevocably authorises and licences the Seller and its servants and agents to enter upon any premises where any goods may be stored and to take possession of the goods.
16. All applicable taxes, duties or levies (including GST) on the sale of the goods will be to the Buyer’s account.
17. The Seller may, at its option and without prejudice to any of its rights, either suspend further deliveries, require payment in advance or terminate any contract by written notice to the Buyer where the Buyer:
(a) defaults on any payment due under the agreement;
(b) being a natural person, commits an act of bankruptcy;
(c) being a corporation, is subject to:
(i) a petition being presented, an order being made or a meeting being called to consider a resolution for the Buyer to be wound up, deregistered or dissolved;
(ii) a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Buyer’s property and undertaking.
(iii) the entering of a scheme of arrangement (other than for the purpose of restructuring); or
(iv) any assignment for the benefit of creditors.
Acceptance of Goods
18. The Buyer will inspect the goods immediately upon delivery to the Buyer or upon collection of that order by the Buyer’s agent or courier as the case may be.
19. All claims against the Seller regarding the quality, nature, fitness, suitability, quantity, conformance with description or defects of the goods must be made in writing to the Seller within 1 hour of delivery or pick up. The Seller does not accept liability for any such claim not made in accordance with these terms.
20. In the event of justified objection notified by the Buyer to the Seller in accordance with these terms, the Seller may, at its option:
(a) reduce the purchase price by agreement with the Buyer;
(b) accept the return of the goods and, subject to the goods being returned in the same condition as when they were delivered to the Buyer, refund to the Buyer the purchase price; or
(c) replace the goods and no additional claims of any nature whatsoever may be made against the Seller.
Advice and Information
21. Any advice, recommendation, information, assistance or service given by the Seller in relation to goods sold or manufactured by the Seller or their use or application is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability and the Seller does not accept any liability or responsibility for any loss suffered from the Buyer’s reliance on such advice, recommendation, information, assistance or service.
Competition and Consumer Act 2010 (Cth) (as amended)
22. The terms in this agreement that exclude or limit the owner’s liability will apply only to the extent permitted by law. Provisions of Competition and Consumer Act 2010 (Cth) (as amended) and other statutes from time to time in force cannot be excluded, restricted or modified or can only be restricted or modified to a limited extent. This agreement must be read and construed subject to any such statutory provisions. If any such statutory provisions apply, then to the extent to which the owner is entitled to do so, its liability under those statutory provisions will be limited at its option to:
(a) the replacement of the goods or the supply of equivalent goods; or
(b) the repair of the goods; or
(c) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(d) the payment of the cost of having the goods repaired.
23. The Buyer agrees to protect The Seller and hold The Seller harmless from any loss or claim arising out of the negligence of The Buyer, The Buyer’s agents, employees or representatives in the installation, use, sale or servicing of The Seller’s Products or arising out of any representation or warranty made by The Buyer, its agents, employees or representations with respect to The Seller’s Products.
The Buyer indemnifies the Seller and agrees to keep the Seller indemnified in respect of any claim or demand made or action commenced by any person against the Buyer or for which the Buyer is liable in connection with any loss or damage whatsoever suffered in connection with the Goods purchased by the Buyer from the Seller.
24. If the Buyer is a proprietary company, then obligations of those who comprise the Guarantor will be joint and several. The Guarantor:
(i) covenants with the Seller that the Covenantor will be with the Buyer jointly and severally liable to the Seller for the due performance of all the terms and conditions on the part of the Buyer contained in this Contract; and
(ii) guarantees to the Seller the punctual payment of all money payable by the Buyer under this Contract and the performance of the terms and conditions of this Contract.
If for any reason, other than default by the Seller or rescission, this Contract is not enforceable by the Seller against the Buyer in whole or in part, the Covenantor will indemnify the Seller against all loss, including all money which would have been payable by or recoverable from the Buyer had this Contract been enforceable against the Buyer.
Guarantor means the directors and those holding shares in the capital of the Buyer as of the date this invoice was issued.