TERMS AND CONDITIONS OF SALE
1. ACCEPTANCE OF TERMS
1.1 Unless otherwise agreed in writing, the supply of all products offered by The Website is owned and operated by the Trustee for Melbourne Office Furniture Unit Trust (ABN 31 033 031 807) trading as Melbourne Office Furniture (“Seller”) to any persons (“Purchaser”) shall be governed by the terms and conditions of sale (TCS) set herein.
1.2 The Purchaser acknowledges and agrees to be bound by this TCS and the Seller will not be bound by any terms and conditions contained in any document issued by the Purchaser.
2. DEFINITIONS AND INTERPRETATION
2.1 In this TCS, the following terms have the following meanings:
(a) “Administrative Charges” has the meaning given to it in clause 8.2(b);
(b) “Delivery” has the meaning given to it in clause 5.1;
(c) “Delivery Charges” has the meaning given to it in clause 5.4;
(d) “Fit-Out Charges” has the meaning given to it in clause 6.3;
(e) “Insolvent” means with respect to the Purchaser that:
(i) it is (or states that it is) insolvent;
(ii) it is in receivership, in receivership and management, in liquidation, in provisional liquidation, under administration or wound up or has had a receiver appointed to any part of its property;
(iii) it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute, or dissolved (other than to carry out a reconstruction or amalgamation while solvent on terms approved by Seller);
(iv) an application or order has been made (and, in the case of an application, it is not stayed, withdrawn or dismissed), resolution passed, proposal put forward, or any other action taken, in each case in connection with the Purchaser, which is preparatory to or could result in any of the circumstances detailed in any of the paragraphs above;
(v) it is taken to have failed to comply with a statutory demand;
(vi) it is otherwise unable to pay its debts when they fall due;
(vii) something having a substantially similar effect to any of the circumstances detailed in any of the paragraphs above happens in connection with the Purchaser under the law of any jurisdiction; or
(viii)it is (or states that it is) bankrupt;
(f) “Intellectual Property” means all intellectual property rights in Australia and throughout the world, including:
(i) patents, copyrights, rights in circuit layouts, registered designs, trade or service marks, trade, business or company names or logos, indication of source or appellation of origin, and any right to have confidential information kept confidential;
(ii) any application or right to apply for registration of, or assert or waive, any of the rights referred to in the aforesaid paragraph; and
(iii) trade secrets, ideas, concepts, materials, know-how and techniques;
(g) “Invoice” means an invoice issued by the Seller in respect of Products ordered by the Purchaser pursuant to an Order;
(h) “Invoiced Amount” means the total amount payable by the Purchaser for an Order;
(i) “Order” means a Quotation in which terms contained therein have been accepted by the Purchaser;
(j) “Personnel” means with respect to the Seller, the officers, employees or contractors of the Seller;
(k) “Price” means the selling price of Products as specified by the Seller, whether denominated in Australian currency or otherwise;
(l) “Products” mean any or all products offered by the Seller for sale or supply to a Purchaser from time to time;
(m) “Purchaser’s Premises” means the Purchaser’s address specified in an Order;
(n) “Quotation” means a written document issued by the Seller to the Purchaser in respect of the supply of Products comprising the amount payable by the Purchaser for such Products together with any goods and services tax, Delivery, Administrative or Fit-Out Charges, or any other amount payable as appropriate;
(o) “Manufacturer” means that manufacturer or supplier of a Product supplied or offered for sale by the Seller to the Purchaser; and
2.2 Unless the context otherwise requires:
(a) headings are for ease of reference only and do not affect the meaning of this TCS;
(b) words importing the singular include the plural and vice versa;
(c) words that are gender neutral or gender specific include each gender;
(d) an expression importing a natural person includes a company, partnership, joint venture, association, corporation, or other body corporate and a government agency;
(e) a reference to a law includes a constitutional provision, treaty, decree, convention, statute, regulation, by-law, judgment, rule of common law or equity, or a rule of an applicable stock exchange and is a reference to that law as amended, consolidated, or replaced;
(f) a reference to a document includes all amendments or supplements, replacements and novations of it and covers electronic documents;
(g) a reference to a party to a document includes that party’s executors, administrators and permitted assigns;
(h) other grammatical forms of defined words have corresponding meanings;
(i) where the day on or by which something must be done is not a Business Day, it must be done by the next Business Day.
3. SUPPLY OF PRODUCTS
3.1 All information displayed on the Website and any other information and materials communicated to the Purchaser from time to time, including Prices and description of Products, are provided for guidance only, and are considered the Seller’s ‘invitation to treat’.
3.2 The informationmay be subject to change without notice and in displaying the Products on the Website, the Seller does not in any way recommend any Product anddoes not in any way offer preference of one Product over another Product of a Manufacturer or of a different Manufacturer.
3.3 A Quotation issued by the Seller shall be in writing in the form specified by the Seller and shall represent an offer to the Purchaser, which, if accepted, shall be deemed an Order for the supply of Products by the Seller to the Purchaser in accordance with the terms of the Order and this TCS.
4. PRICES AND PAYMENT TERMS
4.1 All Prices displayed on the Website or specified in a Quotation or otherwise made known to the Purchaser prior to an Order are subject to change. The Seller shall issue an Invoice for the total purchase amount payable by the Purchaser (being the “Invoiced Amount”). The Invoiced Amount shall be inclusive of any goods and services tax payable in respect of the supply.
4.3 Without limiting any other rights Seller may have under this TCS or by force of law or equity, if the Purchaser fails make full payment of the Invoiced Amount by the due date in accordance with clause 4.2, the Seller may:
(a) charge interest at the rate of 12.5% per annum calculated daily on all overdue monies (excluding interest under this clause) until the same is paid in full;
(b) charge an administrative fee for any administrative costs incurred in respect of the Purchaser’s failure to make full payment hereof;
(c) cancel or suspend or vary any unfulfilled Order;
(d) cancel any rebate, discount or allowance due or payable by the Seller as at the date of the event;
(e) pursuant to clause 7.2, enter at any time the Purchaser’s Premises or any other premises to inspect and reclaim possession of the Products without liability for the tort of trespass, negligence or payment of any compensation to the Purchaser whatsoever;
(f) lodge a caveat or other similar instrument over any property of the Purchaser; or
(g) institute any recovery process as the Seller in its discretion thinks fit at the Purchaser’s cost and expense.
4.4 The Purchaser shall not be entitled to set off or deduct any amounts due and owing by the Purchaser to the Seller under this TCS, whether or not an existing dispute or claim has been made by the Purchaser against the Seller or for any reason whatsoever.
5. DELIVERY AND RISK
5.2 Time shall not be of the essence in respect of Delivery and Delivery may not be refused by the Purchaser, whether such Delivery was made in whole or in part. Any dates for Delivery specified by the Seller orally or in any written communications made to the Purchaser are only estimates, including any made in a Quotation or an Invoice, and the Seller shall not be liable for any loss or damage arising from, or incurred in respect of, any Deliveries made after such estimated dates.
5.3 The Purchaser must ensure, and the Purchaser is responsible for, the provision of a suitable and secure place within the Purchaser’s Premises for Delivery of the Products. Neither the Seller, nor any delivery agent appointed on the Seller’s behalf, shall be liable in any way any damage to the Products or to any part thereof arising from or as a result of the Purchaser’s failure to do the aforesaid.
5.5 If the Purchaser fails to accept Delivery on a date specified or made known to, and agreed by, the Purchaser by the Seller and the Seller is required to retain possession of the Products at the Seller’s premises or at the relevant Manufacturer’s premises, then the Seller shall be entitled to impose storage fees for the retention of the Products from the date Delivery is due until the date Delivery is actually made to the Purchaser.
5.6 The Purchaser further acknowledges and agrees that the Seller or the delivery agent shall not be required to provide any services relating to the moving of existing items, including furniture or heavy goods, for the purposes of creating or providing a suitable or secure place for the Products. In the event that such services are required, the Purchaser must inform the Seller of this request prior to Delivery and the Seller shall be entitled to accept or reject such request at its sole discretion, and if accepted, the Seller shall further be entitled to impose any relocation fees, which shall be included in the relevant Invoice as part of the Invoiced Amount, as it deems fit for the provision of such services.
5.7 Risk of loss and damage to the Products shall pass to the Purchaser on Delivery.
6. FIT-OUT
6.1 The Purchaser may put forward a request for any or all of the Products purchased to be installed or fitted by the Seller at any time before or after Delivery.
6.2 If any such installation or fit-out is carried out by the Seller, its contractors or agents at the Purchaser’s Premises or at a location specified by the Purchaser, the following requirements shall apply in addition to the requirements set out in clause 5 above:
(a) electricity services must be made available to the Seller, its contractors or agents;
(b) the Purchaser must ensure that access to the Premises is made available to the Seller, its contractors and/or agents during normal working hours (being the hours between 7.30am and 4.00pm) and longer by prior written agreement with the Seller where necessary or appropriate;
(c) the Purchaser must ensure that the fit-out may be carried out as one uninterrupted operation unless otherwise prior agreement in writing has been granted by the Seller;
(d) the Purchaser must serve all notices and make all applications for and obtain all licenses, consents or approvals as are required under any building regulation or by-laws or any legislation for the time being in force prior to the carrying out of any installation or fit-outs by the Seller, its contractors or agents and the Customer shall be liable and shall indemnify and keep indemnified the Seller, its contractors and/or agents against all actions, proceedings, costs, charges, claims or demands arising directly or indirectly out of or in connection with any breach of this condition;
(e) the Purchaser must ensure that all occupational health and safety appropriate policies and procedures are in place and followed during such installation or fit-out and provide or supply the Seller, its contractors and/or agents with appropriate health and safety information and notify the Seller in writing immediately of any material changes to such information or in circumstances where the Seller, its contractors and/or agents have been or are likely to be exposed to risks to their health and safety;
(f) the Purchaser must provide the Seller, its contractors and/or agents present at the Purchaser’s Premises with a site induction as soon as practicable on arrival at the Premises, including location of amenities on Premises, first aid equipment and health and safety personnel of the Purchaser;