TERMS AND CONDITIONS

BAMBURY PTY LTD (ACN 065 811 949) AS TRUSTEE FOR THE LODGE FAMILY TRUST (“BAMBURY”)

TRADING TERMS & CONDITIONS (“TRADING TERMS”)

 

These Trading Terms, together with:

(a)     Any Credit Application completed by the Customer and submitted to Bambury and accepted by Bambury; and

(b)     Any Guarantee completed by the Customer and submitted to Bambury.

(c)     Any Order/s submitted to Bambury by the Customer and accepted by Bambury make up to agreement between the Customer and Bambury for the sale and  purchase of goods (“Agreement”).  By accepting goods from Bambury the Customer agrees to be bound by these Trading Terms (as amended from time to       time).

Amendment: These Trading Terms may be amended by Bambury from time to time by Bambury giving notice of the amendment to the Customer. Notice is deemed given (whether or not actually received) when Bambury does any of the following: (a) sends notice of the amendment to the Customer at any address (including an email address) supplied by the Customer, or (b) publishes the most recent version of the amended terms on its website www.bambury.com.au.  The Customer’s continued acceptance of goods after notice of the amended terms has been given will be deemed an acceptance of the amended terms by the Customer.

 

1.            INTERPRETATION

 

Bambury” means Bambury Pty Ltd (ACN 065 811 949) atf the Lodge Family Trust and it’s authorised agents, successors and assigns.

Commencement” the date when the Customer takes possession of the goods.

Credit Account” means a credit account granted to the Customer by Bambury for the purchase of goods.

Credit Application” means a properly completed Credit Application (where the Customer is not applying for client) or a New Account Form by the Customer.

Customer” refers to the person, firm, organisation, partnership, corporation, trust or other entity who purchases goods from Bambury as named in the Credit Application or an Order (where the Customer does not hold a Credit Account) and includes any employees, agents and contractors and permitted assigns of the Customer

goods” means all goods supplied from Bambury to the Customer from time to time.

GST” has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Intellectual Property Rights” means all intellectual property rights including, without limitation, all patents, copyrights, trade and service marks, logos, designs, circuit layouts, trade secrets and confidential information whether registered or not and any rights relating to any of them.

List Prices” means the prices from time to time for particular goods contained on the website at www.bambury.com.au.

Orders” means orders for goods placed by the Customer by way of either email, telephone, via an agent, facsimile or through the Bambury website and accepted by Bambury in accordance with these Trading Terms.

2.             PRICING, ORDERING & DELIVERY

2.1          The Customer acknowledges that once Orders have been accepted and processed by Bambury they cannot be withdrawn or amended.

2.2          Unless the Customer otherwise notifies Bambury in writing to the contrary, the Customer acknowledges and agrees that Orders placed by any of its employees shall be valid and binding on the Customer.

2.3          All prices are quoted exclusive of any prevailing goods and services tax (GST) that may be applicable.

2.4          All prices are quoted inclusive of delivery-into-capital city.  Customers outside capital city zones will need to nominate their preferred on-forward transport carrier to avoid freight charges on each order.

2.5          If the Customer has not nominated a preferred on-forward transport carrier, the Customer shall be responsible for all freight charges calculated for each order for goods based on the volume of the order.

2.6          List prices are subject to change without notice.

2.7          Broken carton pricing may be applied when less than a carton of a specific product is order.

2.8          Orders under $300 will incur a $20 delivery fee.

2.9          Goods will be delivered to the address for the Customer nominated in the Credit Application or otherwise as advised by the Customer in writing. Delivery dates will be as advised by Bambury. Bambury takes no responsibility for delivery to an incorrect address provided by the Customer.

3.            PAYMENT

3.1          Bambury will issue an invoice to the Customer in respect of each supply of goods.

3.2          Each invoice is payable within the period nominated on the invoice. The Customer acknowledges and agrees that payment terms may differ from invoice to invoice.

3.3          All invoices must be paid in full without set-off or deduction. Any dispute concerning an invoice must be raised by the Customer within 2 days of receipt of the invoice otherwise the invoice is deemed accepted in its entirety by the Customer. Any undisputed amount must be paid.

3.4          Should the Customer default in payment of any monies due under this Agreement then all monies due to Bambury shall immediately become due and payable and Bambury shall be entitled to charge interest at a simple daily rate equivalent to the prevailing Westpac Banking Corporation business overdraught rate plus 2%, on all due accounts from the date until the date of actual payment.  Bambury will be entitled to recover and the Customer agrees to pay all and any costs associated with the recovery of overdue accounts including collection commissions payable to debt collection agencies and solicitor-client/indemnity costs incurred by Bambury.

4.            TITLE

4.1          Title to the goods shall remain with Bambury and title does not pass to the Customer until all monies due and owning from the Customer to Bambury has been received in full by Bambury. 

4.2          Subject to these Trading Terms, until title passes to the Customer and without prejudice to Bambury’s rights, the Customer must not encumber or otherwise charge the goods in any way and possesses the goods as bailee only.

4.3          Notwithstanding the foregoing, the Customer may sell the goods to any third party only in the normal course of business provided the Customer retains the proceeds of such sales in trust for Bambury and otherwise adheres to these Trading Terms.

5.            Default and Repossession

5.1          The Customer acknowledges and agrees that.

If:

(i)      the Customer commits any act of Bankruptcy;

(ii)     the Customer goes into liquidation;

(iii)    a petition for the sequestration of the Customer’s estate or for the winding up of the Customer;

(iv)    the Customer assigning its property for the benefit of creditors or having an official receiver or manager appointed;

(v)     the Customer failing to make a payment to Bambury when due; or

(vi)    the Customer breaches a material clause of the Agreement including (without limitation) clauses 3.8, 6.2, 6.3 and 6.5 of these Trading Terms.

then Bambury may do any or all of the following:

(vii)   Terminate the Agreement;

(viii)  enter the premises where the goods are stored and repossess them, or demand the Customer deliver them to Bambury;

(ix)    decline to deliver the goods or any balance of the goods still due;

(x)     stop goods in transit;

(xi)    cease to perform its obligations under the Agreement;

(xii)   sell the goods by public auction or private sale on any terms and apply the proceeds after deductions of expenses towards the reduction of all money due and owing by the Customer.

5.2          The Customer shall indemnify Bambury against any claim for damages, liability, cost, expense which Bambury incurs or becomes liable for in respect to the exercise of Bambury’s rights under this clause 5.

5.3          The Customer accepts all risk of loss or damage to the goods, whether caused by the Customer or not, as from the delivery of the goods to the Customer and shall from that time assume responsibility of insuring the goods for their full price.

5.4          In addition to any other rights of indemnity Bambury may have under this Agreement the Customer agrees to indemnify Bambury against all loss, damages, costs and expenses suffered by Bambury as a result of a breach of this Agreement by the Customer including the inability of the Customer to deliver up possession of the goods or account for the proceeds of dealing with the goods in accordance with this clause 5.

6.            OTHER

6.1          Force Majeure:  Bambury shall be entitled to delay or cancel delivery or reduce the amount of goods delivered if it is prevented from or hindered or delayed in manufacturing, obtaining or delivering the goods by normal rout or means through any circumstances beyond its control including but not limited to acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations of governments of any relevant jurisdiction, fires, floods, strikes, lockouts or other labour difficulties, shortages of or inability to obtain shipping space or land transportation

6.2          Change of ownership – Registered Particulars:  The Customer shall not later than 5 days prior to any proposed changes of ownership, change in Registered Particulars, alteration, addition to the shareholding or directorship, notify Bambury of its proposed change and the Customer shall notify Bambury of any change, alteration or addition to the Customer’s internal structure and shall provide full details of the propose change, alteration or addition, to Bambury and the Customer shall be liable for any goods supplied by Bambury after such change, alteration or addition unless Bambury shall have acknowledge by written acceptance of the intending change, alteration or addition. 

6.3          Assignment:  The Customer must not assign any of its rights or obligations under the Agreement without prior written consent from Bambury.

6.4          Governing Laws:  This Agreement is governed by and must be construed according to the laws of Western Australia.  Bambury and the Customer each agree to submit to the non-exclusive jurisdiction of the courts of or exercising jurisdiction in Western Australia. 

6.5          Intellectual Property:  Nothing in this Agreement constitutes a transfer of any Intellectual Property Rights. The Customer must not do anything that would or might invalidate or put in dispute Bambury’s Intellectual Property Rights including trademarks and logos associated with the goods whether by act or omission, misrepresentation, passing-off or otherwise. 

6.6          Disputes: subject to these Trading Terms, in the event of a dispute arising from this Agreement the disputing party agrees to issue a written notice to the other party outlining the dispute (“Dispute Notice”). The parties then agree to meet and act in good faith in an attempt to resolve the dispute. If the dispute cannot be resolved within 10 business days of receipt of the Dispute Notice or as otherwise agreed by the parties then either party may seek the assistance of a relevant court or authority to resolve the dispute. Nothing in this clause 6.6 is intended to prevent a party from seeking urgent interlocutory relief.

6.7          Waiver: No delay or omission by Bambury to exercise any right, power or remedy available to it as a result of a continuing breach or default under the Agreement will impair any such right, power or remedy, nor will it be construed to be a waiver of Bambury’ s rights to take action or make a claim in respect of a continuing breach or default by the Customer.

7.            RETURN OF GOODS POLICY (CLAIMS)

7.1          Bambury will always use its best efforts to deliver to the Customer goods fit for purpose and in sound condition.  However if the Customer believes that the goods do not meet their intended standard the Customer must notify the Bambury sales department (1300 766 762) within 7 days of delivery of goods.  In such circumstances Bambury may at its discretion do one of the following:

(a)           Negotiate an agreed discount for the faulty or damaged goods in which case Bambury may then issue an adjustment note to the customer reflecting the agreed discount.

(b)           Bambury may recommend disposal of goods in which case Bambury may issue a reference Disposal Authority Number for the disposal and an Adjustment Note for the price paid for the goods.

(c)           Bambury may direct that the goods be returned to Bambury’s head office according to Bambury’s transport instructions and at Bambury’s cost in which case Bambury may issue a reference Return Authority Number (to accompany the return of the goods).  An Adjustment Note may then be issued once the goods have been inspected and assessed by Bambury or its representing agent and it can be clearly proven that the fault has occurred due to poor workmanship during manufacture and/or the damage has occurred during any storage or transit for which Bambury has been responsible.  Notwithstanding the above Return of Goods Policy, it must not be presumed by the Customer that refunds or discounts that the Customer may decide to give to its Customer for fault or damaged goods sold, will be automatically recoverable from Bambury.

7.2          Notwithstanding anything to the contrary contained in these Trading Terms, to the full extent permitted by law, Bambury expressly excludes all warranties, conditions, representations, whether express or implied relating to the goods except for those expressly provided in these Trading Terms.

7.3          Notwithstanding any other provisions of these Trading Terms and to the fullest extent permitted by law, Bambury’s maximum liability is limited to the replacement or repair of goods or payment for the replacement or repair of goods to the Customer.

8.            PERSONAL PROPERTY SECURITIES ACT

8.1          In this clause 8 “PPSA” means Personal Properties Securities Act 2009 and any other legislation and regulations in respect of it and amendments to it, terms used in this clause shall have the same meaning as given in the PPSA.

8.2          The Customer consents to Bambury effecting and maintaining a registration on the PPS register (in any manner Bambury considers appropriate) in relation to any security interest contemplated or constituted by this Agreement in the goods and the proceeds arising in respect of any dealing in the goods and the Customer agrees to sign any documents and provide all assistance and information to Bambury required to facilitate the registration and maintenance of any security interest.  Bambury may at any time register a financing statement or financing change statement in respect of a security interest (including any purchase money security interest).  The Customer waives the right to receive notice of a verification statement in relation to any registration on the register of a security interest in respect of the goods.

8.3          The Customer undertakes to:

(a)           do anything (in each case, including executing any new document or providing any information) that is required by Bambury:

(i)            so that Bambury may acquire and maintain one or more perfected security interests under the PPSA in respect of the goods and their proceeds;

(ii)           to register a financing statement or financing change statement; and

(iii)          to ensure that Bambury’s security position, and rights and obligations, are not adversely affected by the PPSA;

(b)           not register a financing change statement in respect of a security interest contemplated or constituted by this Agreement without Bambury’s prior written consent; and

(c)           not register, or permit to be registered, a financing statement or a financing change statement in relation to the goods in favour of a third party without Bambury’s prior written consent.

8.4          If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising under or in connection with this Agreement and:

(a)           section 115(1) of the PPSA allows for the contracting out of provisions of the PPSA, the following provisions of the PPSA will not apply and the Customer will have no rights under them:  section 95 (to the extent that it requires the secured party to give notices to the grantor), section 96, section 118 (to the extent that it allows a secured party to give notices to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142 and section 143; and

(b)           section 115(7) of the PPSA allows for the contracting out of provisions of the PPSA, the following provisions of the PPSA will not apply and the Customer will have no rights under them:  section 127; section 129(2) and (3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5) and section 137.

8.5          Unless otherwise agreed and to the extent permitted by the PPSA, the Customer and Bambury agree not to disclose information of the kind referred to in section 275(1) of the PPSA to an interested person, or any other person requested by an interested person.  The Customer waives any right the Customer may have, or but for this clause may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.

8.6          For the purposes of section 20(2) of the PPSA, the collateral is goods including any goods provided by Bambury to the Customer from time to time.  This Agreement is a security agreement for the purposes of the PPSA.

8.7          Bambury may apply amounts received in connection with this Agreement to satisfy obligations secured by a security interest contemplated or constituted by this Agreement in any way Bambury determines in Bambury’s absolute discretion.