Conditions of Sale

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Interpretation

1. In these conditions:

1.1 ʻSellerʼ means Bogaard Distributors Pty Ltd ACN 088 121 448 of PO Box 22, Mt Colah NSW 2079 which is the seller of the goods/services.
1.2 ʻBuyerʼ means the purchaser of the goods/services specified overleaf.
1.3 ʻGoodsʼ means the products and, if any, services specified overleaf.
1.4 Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty. guarantee, right or remedy implied by law (including the Trade Practices Act 1974) and which by law cannot be excluded., restricted or modified.

General

2. These conditions (which shall only be waived in writing signed by the seller) shall prevail over all conditions of the buyer's order to the extent of any inconsistency.

Terms of sale

3. The goods and all other products sold by seller are sold on these terms and conditions.

Seller's quotations

4. Unless previously withdrawn, seller's quotations are open for acceptance within the period stated in them or, when no period is so stated, within 5 days only after its date. The seller reserves the right to refuse any order based on this quotation within 5 days after the receipt of the order.

Shortage

5. The buyer waives any claim for shortage of any goods delivered if a claim in respect for short delivery has not been lodged with the seller within 5) days from the date of receipt of goods by the buyer.

Drawings, etc

6.1 All specifications, drawings, and particulars of weights and dimensions submitted to the seller are approximate only and any deviation from any of these things does not vitiate any contract with the seller or form grounds for any claim against the seller.
6.2 The descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the goods or of the description applied to the goods.
6.3 Where specifications, drawings or other particulars are supplied by the buyer, the seller's price is made on estimates of quantities required. If there are any adjustments in quantities above or below the quantities estimated by seller and set out in a quotation, then any such increase or decrease are to be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation.

Performance

7. Any performance figures given by the seller are estimates only. The seller is under no liability for damages for failure of the goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.

Delivery

8.1 The delivery times made known to the buyer are estimates only and the seller is not be liable for late delivery or non-delivery.
8.2 The seller is not be liable for any loss, damage or delay occasioned to the buyer or its customers arising from late or non-delivery or late installation of the goods.
8.3 The seller may at its option deliver the goods to the buyer in any number of instalments unless there is an endorsement overleaf to the effect that the buyer will not take delivery by instalments.
8.4 If the seller delivers any of the goods by instalments, and any one of those instalments is defective for any reason:

.1 it is not a repudiation of the contract of sale formed by these conditions; and
.2 the defective instalment is a severable breach that gives rise only to a claim for compensation.

Loss or damage in transit

9.1 The seller is not responsible to the buyer or any person claiming through the buyer for any loss or damage to goods in transit caused by any event of any kind by any person (whether or not the seller is legally responsible for the person who caused or contributed to that loss or damage).
9.2 The seller shall provide the buyer with such assistance as may be necessary to press claims on carriers so long as the buyer:

.1 has notified the seller and the carriers in writing immediately after loss or damage is discovered on receipt of goods; and
.2 lodges a claim for compensation on the carrier within 3 days of the date of receipt of the goods.

Guarantee

10.1 The seller's liability for goods manufactured by it is limited to making good any defects by repairing the defects or at the seller's option by replacement, within a period not exceeding 24 calendar months after the goods have been dispatched so long as:

.1 defects have arisen solely from faulty materials or workmanship;
.2 the goods have not received maltreatment. inattention or interference;
.3 accessories of any kind used by the buyer are manufactured by or approved by seller;
.4 the seals of any kind on the goods remain unbroken; and
.5 the defective parts are promptly returned free of cost to the seller.

10.2 If the goods are not manufactured by the seller the guarantee of the manufacturer of those goods is accepted by the buyer and is the only guarantee given to the buyer in respect of the goods. The seller agrees to assign to the buyer on request made by the buyer the benefit of any warranty or entitlement to the goods that the manufacturer has granted to the seller under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
10.3 The seller is not liable for and the buyer releases the seller from any claims in respect of faulty or defective design of any goods supplied unless such design has been wholly prepared by the seller and the responsibility for any claim has been specifically accepted by the seller in writing. In any event the seller's liability under this paragraph is limited strictly to the replacement of defective parts in accordance with clause 10.1 of these conditions.
10.4 Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the goods or arising out of the seller's negligence or in any way whatsoever.

11. The seller's liability for a breach of a condition or warranty implied by Div 2 of Pt V of the Trade Practices Act 1974 (other than s 69) is limited to:
11.1 in the case of goods, any one or more of the following:

.1 the replacement of the goods or the supply of equivalent goods;
.2 the repair of the goods;
.3 the payment of the cost of replacing the goods or of acquiring equivalent goods;
.4 the payment of the cost of having the goods repaired; or

11.2 in the case of services:

.1 the supplying of the services again; or
.2 the payment of the cost of having the services supplied again.

12. The seller's liability under s 74H of the Trade Practices Act 1974 is expressly limited to a liability to pay to the purchaser an amount equal to:

.1 the cost of replacing the goods;
.2 the cost of obtaining equivalent goods; or
.3 the cost of having the goods repaired, whichever is the lowest amount.

Prices

13.1 Unless otherwise stated all prices quoted by the seller are net, exclusive of Goods and Services Tax (GST).
13.2 Prices quoted are those ruling at the date of issue of quotation and are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges affecting the cost of production ruling on the date is made.
13.3 The buyer will bear all liability for GST and shall not require the seller to pay to the buyer any amount on account of GST. In addition the seller will be entitled to recover from the buyer any GST paid or payable by it in respect to the sale of the goods.

Payment

14.1 The purchase price in relation to goods is payable net and payment of the price of the goods must be made on or before the thirtieth day of the month next following the delivery of the goods unless other terms of payment are expressly stated in these conditions in writing.
14.2 Should the buyer default in the payment of any moneys due to the seller then all moneys shall immediately become due and payable, shall be paid by the buyer within 7 days of demand and shall attract interest at the rate of 2% flat per month to be calculated on all overdue amounts from the date of due payment until the date of actual payment.
14.3 Any expenses costs or disbursements incurred by the seller in recovering any outstanding moneys, including all reasonable debt collection fees and solicitors costs and legal disbursements shall be paid by the buyer. 14.4 The seller shall be entitled without notice to terminate any credit arrangement with the buyer in the event of the buyer defaulting in any of the terms and conditions contained in this agreement or for any other reason which the seller need not make known to the buyer.
14.5 The seller shall be entitled at any time to request such security or additional security as it shall in its discretion think fit and shall be entitled to withhold supply of the goods or any credit arrangement until such security or additional security is provided.

Rights in relation to goods
(Romalpa clause)

15.1 The seller reserves the following rights in relation to the goods until all accounts owed by the buyer to the seller are fully paid:

.1 ownership of the goods;
.2 to enter the buyer's premises (or the premises of any associated company or agent where the goods are located) without liability for trespass or any resulting damage and retake possession of the goods; and
.3 to keep or resell any goods repossessed pursuant to (Clause 14.2) above.

15.2 If the goods are resold, or products manufactured using the goods are sold, by the buyer, the buyer shall hold such part of the proceeds of any such sale as represents the invoice price of the goods sold or used in the manufacture of the goods sold in a separate identifiable account as the beneficial property of the seller and shall pay such amount to the seller upon request. Notwithstanding the provisions above the seller shall be entitled to maintain an action against the buyer for the purchase price and the risk of the goods shall pass to the buyer upon delivery.

15.3 The seller and the buyer agree that:

.1 the property of the seller in the goods remains with the seller until the seller has been paid in full for the goods under all individual contracts for the supply of the goods between the seller and the buyer;
.2 the buyer is a bailee of the goods until such time as property in them passes to the buyer and that this bailment continues in relation to each of the goods until the price of the goods has been paid in full;
.3 pending payment in full for the goods, the buyer:

.3.1 must not supply any of the goods to any person outside ordinary or usual course of business;
.3.2 must not allow any person to have or acquire any security interest in the goods;
.3.3 must insure the goods for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the buyer carries on business;
.3.4 must not remove, deface or obliterate any identifying plate, mark or number on any of the goods.

15.4 Despite clause 15.3, if the buyer supplies any of the goods to any person before all moneys payable by the buyer have been paid to the seller (and have not been claimed or clawed back by any person standing in the place of or representing the buyer), the buyer agrees that:

.1 it holds the proceeds of re-supply of the goods on trust for and as agent for the seller immediately when they are receivable or are received;
.2 it must either pay the amount of the proceeds of re-supply to the seller immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for the seller;
.3 any accessory or item which accedes to any of the goods by an act of the buyer or of any person at the direction or request of the buyer becomes and remains the property of the seller until the with clause 15.3.1 when the property in the goods (including the accessory) passes to the buyer.
.4 if the buyer fails to pay for the goods within the period of credit (if any) extended by' the seller to the buyer. the seller may recover possession of the goods at any site owned, possessed or controlled by the buyer and the buyer agrees that the seller has an irrevocable licence to do so.

Buyer's property

16. Any property of the buyer under the seller's possession, custody or control is completely at the buyer's risk as regards loss or damage caused to the property or by it.

Returned goods

17.1 The seller is not be under any duty to accept goods returned by the buyer and will do so only on terms to be agreed in writing in each individual case. The seller will not accept the return of used, unpacked or damaged goods.
17.2 If the seller agrees to accept returned goods from the buyer under clause 17.1, the buyer must return the goods to the seller at the seller's place of business referred to at the head of these conditions. Any return of goods shall be at the buyerʼs entire risk as to loss or damage. Where the seller agrees to accept goods for return a pre-negotiated re-stocking and re-packing charge may be made.
17.3 Acceptance of goods delivered by the seller shall be deemed for all purposes to have taken place at the expiration of 5 days from the date of each delivery.

Goods sold

18. All goods to be supplied by the seller to the buyer are as described on the purchase order agreed by the seller and the buyer and the description on such purchase order modified as so agreed prevails over all other descriptions including any specification or enquiry of the buyer.

Cancellation

19. No order may be cancelled except with consent in writing and on terms which will indemnify the seller against all losses.

Place of contract

20.1 The contract for sale of the goods is made in the state of New South Wales, Australia.
21.2 The parties submit all disputes arising between them to the courts of such state and any court competent to hear appeals from those courts of first instance.