Applicable to and forming part of any contract for goods manufactured, sold or supplied or for work and labor done by Chamton Pty Ltd (hereunder called “Chamton ”) for the Customer named on the face hereof (hereunder called “the Customer”) and applicable to the whole or any executed part of an order.
- Unless otherwise specified in writing by Chamton to the Customer:
- Prices in respect of an order are those prices current at the date of delivery
- All prices are subject to change within notice.
- Unless otherwise specified in writing by Chamton to the Customer:
- Payment for any goods manufactured, sold or supplied (hereinafter called “the Goods”) or for work and labor done by Chamton to or for the Customer shall be made within thirty (30) days after the delivery of the invoice to the Customer.
- Interest shall accrue and be payable on all overdue accounts at the rate equal to two and half percent (2.5%) above the rate fixed under section 2 of the Penalty Interest Rates Act 1983 at the time default.
- Chamton reserves the right to withhold delivery of the Goods if the Customer is in any way in breach of theses Terms and Conditions of Sale.
- Chamton reserves the right to delivery by installments and each installment shall be deemed to be sold under separate contract. Failure to deliver any installments shall not entitle the Customer to repudiate the contract. Rejection of any installment does not authorize rejection of any other installment. Each installment constitutes a separate contract without prejudice to the main contract.
- The provision of Division 3 of the Goods Act 1958 (as amended) shall apply to this contract while not inconsistent herewith. In the event of any such inconsistency the terms of this contract shall prevail.
The quantity of Goods ordered by the Customer will be supplied as near as practicable by Chamton and Chamton shall deliver and the Customer shall accept the actual quantity of Goods delivered against this contract up to a margin of 10 percent more or less or to the nearest pack lot whichever is the larger.
Limitation of Liability
- If for any cause or reason beyond the control of Chamton (including but not limited to fire, flood, earthquake, other natural disasters or Act of God, war, hostilities or threat of war or hostilities, strikes, lockouts, industrial disputes, Governmental control whether by intervention, legislation or regulation or by Government authority or any restriction of prohibition or contingencies hindering or preventing delivery) Chamton is delayed or impeded in fulfilling its obligation under this contract, then Chamton , upon notifying the Customer, may suspend further performance of the contract until performance of Chamton ’s obligations under the contract can be recommended, or if Chamton s is so delayed or impeded or is frustrated or prevented from completing the contract for a continuous period of two (2) months the contract may be terminated by Chamton , and the contract shall become voidable at Chamton ’s option, and the Customer shall in the instance of Goods manufactured or supplied to meet the Customer’s particular requirements and, not withstanding such termination and/or rendering void the order, pay for any installments and individual items if wholly manufactured at the price for same pursuant to this contract or if partially manufactured at a pro-rata adjustment of the price.
- Without limiting the foregoing delivery dates quoted on behalf of Chamton are estimates and approximate only although Chamton will use reasonable endeavors to maintain these estimates. Goods the subject of this contract shall be in all respects at the Customer’s risk upon delivery being made and if the Goods are delivered by installments, those Goods delivered by installments shall be at the Customer’s risk upon delivery of the installment being made. Goods the subject of this contract shall be at the Customer’s risk upon such delivery being made whether payment has been made or not made for those Goods or installments thereof.
- This contact contains all the Terms and Conditions under which the Goods are to be sold and any express r implied conditions, statement, representation or warranty, statutory or otherwise not stated herein is hereby excluded. No variation of these Terms and Conditions of Sale or representations bearing thereon will be binding on Chamton unless confirmed in writing by Chamton. Any warranties or Conditions statutory or otherwise as to quality or fitness for any purpose are excluded and the Customer relies on his own judgment. No Goods may be returned to Chamton without the prior written approval of Chamton being first obtained. If such approval is obtained the Goods concerned shall be returned to Chamton property packaged so as to prevent damage in transit and within fourteen (14) days from the date of delivery. Chamton shall not otherwise be subject to nor incur and the Customer releases Chamton from any claim, action or liability including any expenditure, consequential loss or damage, loss of use or profits resulting from or by reason of any suspension or avoidance under this clause or faulty or defective original or replacement Goods, materials or workmanship, negligence or any act matter or thing done, permitted or omitted by Chamton. Any Goods approved for return to Chamton as aforesaid shall be the property of Chamton to dispose of as it sees fit.
In event of the Customer’s death, insolvency, bankruptcy or winding up, suspension of payments, dissolution, or modification of proprietors or partnership, non payment for or non payment acceptance of any delivery. Chamton may cancel this contract or suspend or continue deliveries always reserving all rights to recover from the Customer any loss occasioned thereby. Cancellation of orders on whole or in part cannot be accepted without Chamton ’s consent in writing and then only on terms that the Customer will compensate Chamton for all work done and materials used to the date of cancellation and the loss of profit suffered by Chamton as a result thereof.
Assignment and Factoring of Book Debits
The Customer shall not assign, factor, transfer, enter into any forward sale agreement or otherwise dispose of its book debts to a third party without first obtaining the written consent of Chamton, which consent shall not be withheld unreasonably.
Retention of Title, Lien, Pledge and Trusts
- It is expressly agreed and acknowledged by the Customer that the legal and equitable title to the Goods supplied by Chamton as described in Chamton’s invoice shall not pass to the Customer unless and until all monies owed or proceeds received in respect to the Goods are paid to Chamton for the full amount of the Invoice (including any interest payable in accordance with Clause 2(b) hereof). In the interim, Chamton shall retain the legal and equitable title to the Goods, and the Customer shall take custody of and hold the Goods as the fiduciary agent and bailee of Chamton.
- The Customer may resell the Goods to the third parties in the normal course of trading, but only as a fiduciary agent of Chamton. Any such re-sale is to be at arms length and any right to bind Chamton to any liability to any third party by contract or otherwise is expressly negative.
- The Customer shall keep the goods separate from its own, property stored and identified, protected and insured.
- All monies and proceeds received, whether tangible, direct or indirect of any dealing with such Goods by the Customer for any re-sale, pending re-sale or utilization in any manufacturing or construction process, shall be held by the Customer in trust for Chamton, and paid into a separate bank account (“the Trust Account”) with properly maintained records for the benefits and on behalf of Chamton for payment to Chamton in reduction of any monies owed by the Customer to Chamton until the liability to Chamton is fully discharged.
- The customer hereby appoints Chamton to be its lawful attorney and authorizes Chamton to appropriate any payments from the Trust Account to such Goods and accounts as it thinks fit, notwithstanding any directions from or appropriation by the Customer to the contrary.
- If the Customer becomes insolvent, commits any act of insolvency or bankruptcy, or defaults in any payment due by it to Chamton, Chamton shall have the unconditional right, without notice, to retake possession of the Goods and to enter upon the Customer’s premises to retake possession of the Goods.
- Without prejudice to the right of Chamton at common law, any undelivered goods which are ascertainable as Goods and having been utilizes in any manufacturing or construction process and remaining upon the premises of the Customer, shall be subject to the retention of title clauses hereof, and be held In trust by the Customer as an agent and fiduciary of Chamton. Such Goods shall further be subject to a special and general lien and pledge for monies owing and due to Chamton for any indebtedness to Chamton from whatever cause by the Customer. If such indebtedness is not paid or otherwise discharged in full by the customer to Chamton within 14 days of receipt of notice from Chamton that it intends to dispose of the Goods, Chamton may, in it absolute discretion, take possession of the Goods and sell the Goods by public auction or private treat, and apply the net proceeds of sale towards reduction of the Customer’s indebtedness.
- In the event that the customer uses, mixes or transforms the Goods in some manufacturing or construction process of its own or some third party, then the Customer shall:
- Hold such part(s) of the proceeds of the manufacturing process as relate(s) to the Goods in trust and in a separate bank account for the benefit and behalf of the Chamton: and
- Acknowledge that such part(s) of the proceeds to be held in trust for and ob behalf of Chamton shall be deemed to equal in dollar terms the amount the amount owing by the Customer to Chamton at the time of receipt of such proceeds.
- For the purposes of the Clause & the term “proceeds” shall mean any proceeds or monies received by the Customer
- For undelivered goods produced by the Customer manufacturing or construction process; and
- Arising from the sale and delivery to a third party by the Customer of goods produced from the Customer’s manufacturing or construction process, including (but not limited to) monies or payments howsoever received by the Customer from any sale of sales, which for the purposes of this sub-clause, are deemed to be held in trust for the benefit for and on behalf of Chamton in satisfaction and for the discharge of the Customer’s indebtedness to Chamton
- The Customer and Chamton acknowledge that some of the provisions of this Clause 8 are intended to constitute a trust between the parties whereby there is an obligation upon the Customer to create a trust of proceeds. Nothing herein contained shall be construed or deemed to create a legal or equitable charge on the goods, whether or not used, mixed, transformed or produced by the Customer in a manufacturing or construction process. Nor will the proceeds of sale of the Goods from a third party be construed or deemed to create a charge on a book debt.
All claims under this contract must be made in writing and delivered to the registered office of Chamton and marked to the attention of the Manager of the Chamton within seven days from the date of delivery.
The Customer, when placing an order with Chamton (whether the order shall be verbal or written), shall be deemed to have accepted these Terms and Conditions of Sale (whether these Terms and Conditions of Sale appear on the back of an invoice or delivery docket or are otherwise brought to the notice of the customer) and if these Terms and Conditions of Sale (which shall only be varied or rescinded by written agreement executed by Chamton) shall differ in any respect from the Customer’s order, then these Terms and Conditions of Sale shall prevail. This contract shall in all respects be construed as a contract according to the laws of the capital State of Victoria.