TERMS AND CONDITIONS OF SALE
1. APPLICATION OF THESE TERMS AND CONDITIONS
For the purposes of this Agreement:
– “the Supplier” is Source Tank Pty Ltd ACN 646 489 830 trading as Source Tank and its successors and assigns or any person acting on behalf of and with the authority of the Supplier;
– “the Customer” is the commercial entity identified as the customer in the Supplier’s Credit Application and/or Contract. It also includes the customer ordering and receiving Goods from the Supplier and encompasses the Customer’s successors, assigns, and any person acting on behalf of and with the authority of the Customer;
– “Goods” means all goods sold, consigned, or otherwise made available to the Customer by the Supplier. This includes, but is not limited to, beauty product containers, tubes, compacts, bottles and jars, paper boxes, toiletry bags, and promotional items;
– “Manufacturer” means a business providing products to the Supplier.”
2. QUOTE
2.1 Supplier Supply Quote
The Supplier may provide the Customer with a quote specifying the Goods of interest, the prices (excluding GST), and predicting delivery dates. The customer is responsible for providing accurate and complete specifications and designs for the Supplier to quote. Quotes are valid for thirty (30) days unless otherwise varied and duly authorized by the Supplier.
2.2 Acceptance by the Customer
Where the Supplier has provided a quote:
a. The Supplier is not obligated to commence the order until the quote has been formally accepted by the Customer.
b. The Customer shall accept the quote by instructing (in writing) the Supplier to commence the order by signing and returning a true copy of the quote accompanied by a purchase order number if applicable.
c. Acceptance by the Customer of the quote will constitute acceptance by the Customer of these Terms and Conditions of Supply.
d. In accepting the quote, the Customer warrants that it has not relied on any representations by the Supplier other than those supplied in writing in the quote.
2.3 Cancellation
2.3.1 Between acceptance of the quote and deposit payment
During this period, the Supplier will charge the Customer a cancellation fee equivalent to 7% of the total order amount. Payment for such cancellation shall be made within seven (7) days from the date of the Supplier’s tax invoice.
2.3.2 The Customer shall reimburse the Supplier for any costs, expenses, or losses incurred by the Supplier should the Customer cancel an accepted quote.
2.4 Supplier May Revise Quote
2.4.1 Every quote has a valid date. The Supplier may amend a quote if not accepted after the valid date indicated on the quote due to price increases for materials, logistics, currency fluctuations, increases in taxes, or any other increases beyond the Supplier’s control. The Supplier will not be obliged to commence the order until such time as the Customer agrees to the amendment of the quote.
2.4.2 The Supplier also reserves the right to revise the quote during its valid period if events occur that are beyond the Supplier’s control, such as natural disasters, outbreaks of epidemics or pandemics, regional or international conflicts, etc.
2.5 Variations to Initial Quote
The Customer shall indemnify the Supplier for any additional costs incurred by the Supplier if:
a. the Customer makes changes to specifications, design work, or the scope of the Goods to be provided by the Supplier; or
b. the designs and specifications supplied by the Customer prove to be inaccurate, impractical, or unworkable in application.
2.6 Copyright
The copyright in all plans, sketches, design ideas, and custom-made solutions appearing in the Supplier’s quote shall be the property of the Supplier. The Customer may not use these materials for any other purpose without the Supplier’s express written consent.
3. DESCRIPTIVE DATA
All illustrations, drawings, catalogues, advertisements, and other descriptive materials accompanying the Supplier’s quote are for informational purposes only. Unless explicitly specified otherwise in the quote, these materials do not form part of the contractual agreement.
4. FITNESS FOR PURPOSE
The Customer acknowledges that it does not rely on the skill or judgment of the Supplier regarding the suitability of any Goods for a specific purpose. Any advice, recommendation, information, or assistance provided by the Supplier is offered without any liability whatsoever. It is understood that such advice or information is for general informational purposes only, and the Customer must exercise their own judgment and expertise to determine whether the Goods are suitable for their intended purposes.
5. DELIVERY
5.1 Delivery of the Goods made to the Customer’s nominated address will incur freight, unloading, or extra labor charges unless otherwise agreed in writing. The Customer shall make all necessary arrangements to accept delivery of the Goods whenever they are tendered. Failure to do so may result in additional costs.
5.2 Delivery of the Goods to the Customer at the Supplier’s address will occur on an agreed-upon date. Failure by the Customer to collect completed Goods from the Supplier’s address on this agreed date will result in storage charges at the Supplier’s sole discretion.
5.3 Delivery of Goods to a third party and/or site nominated by the Customer is considered delivery to the Customer for the purpose of this agreement.
5.4 The Supplier reserves the right to deliver by instalments.
5.5 Delivery dates are forecasted as accurately as possible. The Supplier shall make every reasonable effort to meet the agreed-upon timeline. The Supplier shall not be liable for any loss or damage whatsoever resulting from the failure to deliver the Goods, or any part of them, promptly.
5.6 The Supplier will make every effort to deliver the exact quantity ordered. However, due to the inherent challenges in production, the Supplier shall not be held liable for variations up to plus or minus twenty (20) percent from the specified quantity. Any such variation will be adjusted pro rata and may result in additional charges or deductions.
6. PAYMENT
6.1 Time for Payment
Unless otherwise agreed in writing, the Supplier’s payment terms require payment in full before delivery. Failure to adhere to these terms may result in delays in delivery or other actions as determined by the Supplier.
6.2 Deposit
The Supplier reserves the right to request a deposit from the Customer, at its sole discretion. The Customer acknowledges that the Supplier is not obligated to commence the order until the deposit is received in full and all contract details are finalized. In the event of default in payment by the Customer, the Supplier reserves the right to forfeit the deposit and claim any anticipated profit or margin specified in the contract, in addition to any other legal or equitable remedies available to the Supplier.
7. PAYMENT DEFAULT
7.1 Administration Fee
The Supplier reserves the right to impose a monthly administration fee of thirty-five dollars ($35) on accounts that exceed the agreed payment terms.
7.2 Interest
The Supplier reserves the right to charge interest at a rate of four percent (4%) per annum above the commercial lending rate of the Supplier’s bank. This interest will be calculated on a daily basis on any amounts not paid within the time specified in the Supplier’s tax invoice.
7.3 Cash on Delivery (“C.O.D”)
If the Customer’s account exceeds the Supplier’s agreed payment terms, the Supplier reserves the right to place the account on restrictive trading (C.O.D) terms.
7.4 Damages
The Customer is responsible for paying the Supplier any costs, expenses, or losses resulting from the Customer’s failure to settle all outstanding sums owed to the Supplier. This includes, but is not limited to, debt collection and legal costs incurred by the Supplier in enforcing payment on a solicitor and own client basis.
8. SHORTAGES AND DEFECTS
8.1 Inspection Upon Delivery
The Customer is required to inspect the Goods upon delivery. Any alleged shortage in quantity, damage, or failure to comply with the description must be reported to the Supplier in writing within seven (7) days of delivery, referencing the applicable invoice number. The Customer must provide the Supplier with an opportunity to inspect the Goods within a reasonable time if they believe the Goods are defective. Failure to comply with these provisions will result in the Goods being conclusively presumed to be in accordance with these Terms and Conditions and free from any damage.
8.2 Return of Defective Goods
Defective Goods must be returned promptly after obtaining written approval from the Supplier, referencing the appropriate delivery docket or tax invoice.
8.3 Remedies for Defective Goods
If the Goods are found to be defective or not in accordance with the description, the Supplier may, at its discretion, either replace the Goods or refund the purchase price.
8.4 Limitation of Liability
The Supplier shall not be liable for any indirect or consequential loss or damage suffered by the Customer or any third party, arising from defects in the Goods or services supplied by the Supplier.
8.5 Exclusions from Warranty
The warranty provided in this clause shall not apply if the defect or failure is caused by misuse, neglect, accident, abnormal use or conditions, or if the Goods have been modified or altered by the Customer or any third party.
8.6 Limitation of Remedies
The Supplier’s liability for defects in the Goods is limited to the replacement of the Goods or the refund of the purchase price as provided in clause 9.3. The Supplier shall not be liable for any other loss or damage arising from such defects.
9. RETURNS
9.1 Approval and Communication
Returns will not be accepted unless prior arrangements are made with the Supplier, and the reason for returning the Goods is clearly communicated in writing via email or facsimile.
9.2 Notification of Short Deliveries and Damage
Claims for short deliveries and damaged Goods will not be recognized unless notified within seven (7) days of receipt of the Goods.
9.3 Exclusions from Return Policy
Goods sold as ‘stock clearance’, ‘specially bought in’, or ‘manufactured to Customer’s specifications’ will not be accepted for return under any circumstances.
9.4 Deadline for Return Arrangements
Arrangements to return the Goods should be made within fourteen (14) days of receipt of the Goods. The Supplier will not consider any claims made beyond this deadline.
9.5 Handling Fee
Returns may be subject to a 10% handling fee.
10. RISK
The risk in the Goods shall pass to the Customer upon delivery of the Goods to the Customer or its agent or to a third party nominated by the Customer.
11. RETENTION OF TITLE
11.1 Title
Notwithstanding the delivery of the Goods, title in any particular Goods shall remain with the Supplier regardless of whether the Goods are on-sold by the Customer until the Customer has paid and discharged any and all monies owing pursuant to any invoice issued by the Supplier for the Goods, including all applicable GST and other taxes, levies and duties.
Where the Goods have been on-sold by the Customer, the Customer will be taken to hold the proceeds of sale of such Goods upon trust for the Supplier and to account to the Supplier for these proceeds. Any payment made by or on behalf of the Customer which is later avoided by the application of any Statutory Provisions shall be deemed not to discharge the Supplier’s title in the Goods nor the Customer’s indebtedness to the Supplier and, in such event, the parties are to be restored to the rights which each respectively would have had if the payment had not been made.
11.2 Bailment
The Customer acknowledges that it is in possession of the Goods solely as a Bailee until payment of all invoices for the Goods is made pursuant to clause 12.1. Until that time, the Customer:
a. is not entitled to sell the Goods except in the ordinary course of business;
b. must not encumber or otherwise charge the Goods; and
c. shall be fully responsible for any loss or damage to the Goods whatsoever and howsoever caused following delivery of the Goods to the Customer.
11.3 Repossession
The Customer hereby irrevocably grants to the Supplier the right, at its sole discretion, to access the Customer’s property and remove or repossess any Goods from the Customer and sell or dispose of them. The Supplier shall not be liable to the Customer or any person claiming through the Customer, and the Supplier shall be entitled to retain the proceeds of any Goods sold and apply them towards the Customer’s indebtedness to the Supplier.
If the Customer commits an act of bankruptcy, enters into any form of administration or liquidation, makes any composition or arrangement with its creditors, ceases to carry on business, or breaches any fundamental clause of this Agreement, then the Supplier may, without prejudice to any other remedies it may have, repossess any Goods delivered to the Customer on any account which has not been paid in accordance with these Terms and Conditions and commence proceedings to recover the balance of any monies owing to the Supplier by the Customer.
12. PERSONAL PROPERTY SECURITIES ACT (“PPSA’)
12.1 Definitions: In this clause, the following words have the respective meanings given to them in the PPSA: Financing Statement, Financing Change Statement, Proceeds, Register, Security Agreement, Security Interest, and Verification Statement. In this clause, ‘the Customer’ is the grantor and ‘the Supplier’ is the secured party, as defined in the PPSA.
12.2 Acknowledgement and Agreement: The Customer acknowledges and agrees:
a. That these Terms and Conditions constitute a Security Agreement that creates a Security Interest in all Goods (and Proceeds):
(i) Previously supplied by the Supplier to the Customer;
(ii) To be supplied in the future by the Supplier to the Customer.
b. That the Security Interest created by these Terms and Conditions is a continuing Security Interest in all Goods (supplied now or in the future by the Supplier to the Customer) and Proceeds, which will operate (despite any intervening payment or settlement of account) until the Supplier has signed a release.
c. To waive its rights under section 157 of the PPSA and the following subsections of section 115 of the PPSA, which will not apply to the Security Agreement created by these Terms and Conditions: 95, 118, 121(4), 130, 132(4), 135, and 143.”
12.3 The Customer undertakes to:
a. Keep all Goods free of any charge, lien, or Security Interest except as created under these Terms and Conditions and not otherwise deal with the Goods in a way that may prejudice any rights of the Supplier under these Terms and Conditions or the PPSA;
b. Sign any further documents and provide any further information (which must be complete, accurate, and up-to-date in all respects) that the Supplier may require to:
(i) Register a Financing Statement or Financing Change Statement in relation to a Security Interest on the Register;
(ii) Register any other document required to be registered by the PPSA; or
(iii) Correct a defect in a statement referred to in clause 13.3(b)(i) or 13.3(b)(ii);
c. Indemnify, and on demand reimburse, the Supplier for all fees (including legal fees on a solicitor and own client basis), costs, disbursements, and expenses in:
(i) Registering and maintaining a Financing Statement or Financing Change Statement on the Register or releasing any Goods charged thereby; and
(ii) Enforcing or attempting to enforce the Security Interest created by these Terms and Conditions; and
d. Not register, or allow to be registered, a Financing Statement or a Financing Change Statement in respect of the Goods or Proceeds in favor of a third party, without the prior written consent of the Supplier.
13. Warranty
13.1 The warranty period for warrantable Goods shall be three (3) months from the effective date of the Supplier’s delivery. The warranty period cannot be extended unless otherwise agreed in writing by the Supplier.
13.2 Any warranty as to Goods sourced from a Manufacturer shall be the same as the written warranty provided by that Manufacturer to the Supplier.
13.3 Work and/or service carried out on the Goods by anyone other than the Supplier and/or its nominated agents shall make the warranty null and void unless the Customer obtains prior written approval from the Supplier before any remedial work is carried out.
13.4 The Supplier reserves the right to make null and void the warranty should the Goods be modified, altered, damaged, or put to any undue stress other than in the way the Goods were designed to perform.
13.5 In respect of all claims, the Supplier shall not be liable to compensate the Customer for any delay in either replacing or repairing the workmanship or Goods or in promptly assessing the Customer’s claim.
14. LIABILITY
14.1 Non-Excludable Rights
The parties acknowledge that, under the Australian Consumer Law (“ACL”), certain conditions and warranties may be implied in these Terms and Conditions and there are rights and remedies conferred on the Customer in relation to the provision of goods and services which cannot be excluded, restricted or modified by the Agreement (“Non-Excludable Rights”).
14.2 Disclaimer of Liability
The Supplier disclaims all conditions and warranties expressed or implied, and all rights and remedies conferred on the Customer, by statute, the common law, equity, trade, custom or usage or otherwise and all those conditions and warranties and all those rights and remedies are excluded other than any Non-Excludable Rights. To the extent permitted by law, the liability of the Supplier for a breach of a Non-Excludable Right is limited, at the Supplier’s option, to the supplying of the Goods again or payment of the cost of having the Goods supplied again.
14.3 Indirect Losses
Notwithstanding any other provision of these Terms and Conditions, the Supplier is in no circumstances liable (whatever the cause) in contract, tort (including negligence or breach of statutory duty), or otherwise, to compensate the Customer for:
a. any increased costs or expenses;
b. loss of profit, revenue, business, contracts, or anticipated savings;
c. loss or expense resulting from a claim by a third party; or
d. special, indirect, or consequential loss or damage of any nature whatsoever caused by the Supplier’s failure to complete the order or deliver the Goods promptly.
14.4 Force Majeure
The Supplier will have no liability to the Customer in relation to any loss, delay, damage or expense caused by the Supplier’s failure to complete the order or to deliver the Goods as a result of fire, flood, tempest, earthquake, riot, civil disturbance, theft, crime, strike, lockout, breakdown, war, the inability of the Supplier’s normal suppliers to supply necessary products or any other matter beyond the Supplier’s control.
15. PRIVACY
15.1 Information Collection and Disclosure:
The Customer hereby authorizes the Supplier to collect, retain, record, use, and disclose consumer and/or commercial information about the Customer in accordance with the Privacy Act 1988 and the Privacy Principles outlined in the Privacy Amendment Act 2012. This information may be disclosed to:
– Persons and/or legal entities engaged by the Supplier, such as solicitors or professional consultants,
– Debt collectors,
– Credit reporting bodies, and/or
– Any other individual or organization maintaining credit references and/or default listings.
15.2 Marketing Authorization:
Subject to the Privacy Principles outlined in the Privacy Amendment Act 2012, the Customer further authorizes the Supplier to collect, retain, record, use, and disclose personal information about the Customer for the marketing of the Goods provided by the Supplier.
16. SECURITY AND CHARGE
The Customer hereby charges all property, both equitable and legal, present or future of the Customer, in respect of any monies that may be owing by the Customer to the Supplier under these Terms and Conditions or otherwise.
Additionally, the Customer hereby authorizes the Supplier or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Customer at any time.
17. ARBITRATION & MEDIATION
Any dispute or difference between the Customer and the Supplier may be notified by a party to the other party.
The parties shall firstly meet to negotiate, in good faith, resolution of the dispute. Secondly, if negotiation fails to achieve a resolution of the dispute within five (5) working days of the notification of the dispute, the parties shall attend mediation.
Mediation shall be administered in accordance with procedures as set out by the Institute of Arbitrators and Mediators Australia.
However, this provision shall not prevent the Supplier from instituting legal action at any time to recover monies owing by the Customer to the Supplier.
18. GENERAL MATTERS
18.1 No Waiver
Failure by the Supplier to enforce or delay in enforcing any right or provision of these Terms and Conditions will not constitute a waiver of such right or provision unless acknowledged and agreed by the Supplier in writing.
18.2 Advice of Customer Changes
The Customer shall give the Supplier not less than fourteen (14) days’ prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any change in the Customer’s details. Changes include, but are not limited to, the Customer’s address, facsimile number, email address, or business practice. The Customer shall be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.
18.3 Amendments to these Terms and Conditions
The Supplier reserves the right to vary these Terms and Conditions at any time with fourteen (14) days’ notice in writing to the Customer. Any subsequent orders will represent the Customer’s agreement to the Terms and Conditions as amended.
18.4 Severability
Any provision in these Terms and Conditions which is invalid or unenforceable in any jurisdiction must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable. If that provision cannot be read down, then it is capable of being severed to the extent of the invalidity or unenforceability without affecting the remaining provisions of these Terms and Conditions or affecting the validity or enforceability of that provision in any other jurisdiction.
18.5 Governing Law and Jurisdiction
These Terms and Conditions are governed by the laws of the State of Queensland and the laws of the Commonwealth of Australia in force in Queensland. All disputes arising between the Customer and the Supplier will be submitted to a court of competent jurisdiction in Queensland selected by the Supplier. Such court shall possess territorial jurisdiction to hear and determine such proceedings.
