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1. The Buyer (being the Applicant in this Application for Commercial Credit Account) shall be responsible for testing and determining the suitability of the goods for the purpose for which they are intended to be used.
2. All warranties and representations not set out herein are hereby excluded to the extent permitted by law and all liability of Halifax Vogel Group Pty Ltd (the “Company”) for damages consequential or otherwise is excluded. To the extent that the company may be liable for a breach of condition or warranty under Division 2 and 2A of Part V and under Part VA of the Trade Practices Act 1974 (other than a condition of warranty implied by Section 69 of the Act) the liability of the Company, to the extent permitted by law, shall be limited to the replacement of the material concerned, the supply of equivalent material or the repair of the material, whichever is determined by it.
3. All Claims must be made within 7 days. Prior approval must be obtained before returned goods will be accepted.
4. A re-stocking fee will be charged on goods accepted for return in saleable condition which fee will be determined at the sole discretion of the seller.
5. Delivery to the Company’s store for goods accepted for return to be at Buyer’s expense.
6. Halifax products cut to size or not defective are not returnable.
7. Terms of payment, the Buyer agrees to pay the Company within 30 days of each Statement issued.
8. (1) Until the buyer has paid all monies owed to “the Company” then ownership of all goods supplied by the Company to the Buyer under this contract or otherwise remains with the Company.
The Buyer:
(a) Shall hold all such material in its possession or that of its employees or agents, as fiduciary agent and trustee for the company.
(b) Shall, in the event that any of the material is sold by the Buyer, such sales shall be made by the Buyer, as an agent for and on behalf of the Company and the Buyer shall hold the proceeds of sale on behalf of the Company. Any proceeds of sale received by the Buyer for the goods shall be paid by the Buyer into a separate account for and on the behalf of the Company. The Buyer shall pay such proceeds of the sale to the Company immediately that it is able to do so, after clearance of any cheques or negotiable instruments received by the Buyer for and on behalf of the Company in accordance with this clause.
Any agreement by the Company to extend credit to the Buyer or any other indulgence shall not affect the Buyer’s liability to account to the Company as aforesaid or the ownership of the goods by the Company.
(c) Shall store the material so as to show clearly that it is the Company’s property and shall keep the material fully insured at its own expense and shall hold the proceeds of any insurance claim in respect of the material (to the extent of the buyers indebtedness to the Company) in trust for the Company.
(d) Upon any default by it in payment of any amount due to the Company, or upon committing an act of bankruptcy (if an individual), or going into liquidation, provisional liquidation, receivership or administration (if a Company), or having a mortgagee enter into possession, irrevocably authorises the Company by its servants or agents to enter into the premises occupied by the Buyer or persons associated with the Buyer for the purpose of taking possession of and removing goods, and hereby authorises the Company by its servants or agents to use all reasonable force to obtain such possession and effect such a removal.
(2) Notwithstanding anything in this clause, risk in the material passes to the Buyer upon delivery of the material by the Company to the Buyer, it’s employees or agents.
9. The material has been supplied on the basis that these conditions form part of the sale and the Buyer accepts that these conditions apply to its agreement for the purchase of goods from the Company.
10. The Buyer hereby charges all beneficial interests (freehold and leasehold) in land wherever located held now or in the future by the Buyer with the amount of the Buyer’s indebtedness to the Company and the Buyer’s obligations pursuant to the Terms and Conditions. The Buyer agrees that if demand is made by the Company, the Buyer will immediately execute a consent to caveat or mortgage (the terms of such mortgage as determined by the Company) as required by the Company to secure the obligations and liabilities of the Buyer to the Company. If the Buyer fails to execute a consent to caveat, or mortgage within a reasonable time of being so requested, the Buyer irrevocably appoints the company and any agent or solicitor of the Company to be the Buyer’s true and lawful attorney to execute and register such instruments.
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