TERMS & CONDITIONS OF TRADE
1.1 Unless otherwise inconsistent with the context the word "person" shall include corporation;
1.2 " Goods" shall include services.
1.3 Words importing the singular number shall be deemed to include the plural and vice versa. Words importing the male gender shall be deemed to include the female and neuter gender and vice versa.
2. OFFER & ACCEPTANCE
2.1 Any quotation made by NATIONWIDE TREES P/L is not an offer to sell or provide goods. NATIONWIDE TREES P/L shall not be bound by any order given in pursuance of any quotation until it is accepted in writing by NATIONWIDE TREES P/L or by the commencement of supply or the provision of goods. Unless otherwise agreed in writing, all orders are subject to acceptance by NATIONWIDE TREES P/L within 30 days of receipt by NATIONWIDE TREES P/L of the order. These terms and conditions shall be deemed to be incorporated into any agreement between NATIONWIDE TREES P/L and the purchaser. Any terms and conditions contained in any order, offer, acceptance or any other document of the purchaser and all representations, statements, terms and conditions and warranties (whether implied by statute or otherwise) not embodied herein are expressly excluded to the fullest extent by law.
2.2 Insofar as goods or services supplied by NATIONWIDE TREES P/L are not of a kind ordinarily acquired for personal domestic or household consumption, and unless the purchaser establishes that reliance on this provision would be fair and reasonable, the liability for breach of a condition or warranty; implied into this contract by the Trade Practices Act 1974 (other than a condition implied by Section 69) is limited:
(a) in the case of goods to any one of the following as determined by NATIONWIDE TREES P/L
(i) the replacement of the goods or the supply of equivalent goods; or
(ii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(b) in the case of services to any one of the following as determined by NATIONWIDE TREES ;
(i) the supply of the services again, or
(ii) the payment of the cost of having the services supplied again.
HOWEVER, the purchaser acknowledges that at such time as stock is purchased from NATIONWIDE TREES P/L, NATIONWIDE TREES P/L relinquish control over the environment of the stock and, therefore, over any influence over the continued quality or well-being of same. For that reason, NATIONWIDE TREES P/L gives no warranty, expressed or implied as to the growth or productiveness of stock following its receipt by the purchaser or its agents and / or servants.
3.1 Any date quoted for delivery is an estimate only and unless a guarantee shall have been given by NATIONWIDE TREES P/L in writing providing for liquidated damages for failure to deliver by the quoted date NATIONWIDE TREES P/L shall not be liable to the purchaser for any loss or damage howsoever arising even if arising out of the negligence of NATIONWIDE TREES P/L for failure to deliver on or before the quoted date. The purchaser shall accept and pay for goods if and when tendered notwithstanding any failure by NATIONWIDE TREES P/L to deliver by the quoted date. Written advice to the purchaser that goods are ready for delivery whether in whole or in part shall constitute tendering and the terms of payment shall apply.
3.2 NATIONWIDE TREES P/L shall not be liable to any purchaser or any other party for any direct or indirect or consequential injury loss or damage whatsoever by reason of any delay in delivery whether the same4 is due to the negligence of NATIONWIDE TREES P/L or any other party, strike or any other industrial action be it of NATIONWIDE TREES P/L or other party, or any other cause whatsoever.
3.3 NATIONWIDE TREES P/L reserves the right to deliver by instalments if delivery is made by instalments the purchaser shall not be entitled;
(i) to terminate or cancel the contract; or
(ii) to any claim loss or damage howsoever arising for failure by NATIONWIDE TREES P/L to deliver any instalments on or before the quoted date.
3.4 It is agreed that NATIONWIDE TREES P/L shall not be responsible for delay in manufacture or delivery caused by, or in any way incidental to act of God, war, fire, and breakages of machinery or strikes or arising out of any other unexpected or exceptional cause, or any cause beyond NATIONWIDE TREES P/L reasonable control.
3.5 Any quotation containing a provision to supply goods "ex stock" is subject to fulfilment of prior orders at the date of receipt of the purchaser's order.
4.1 Unless otherwise agreed in writing payment terms are strictly 30 days from the date the goods are invoiced to the purchaser.
4.2 This term as to the payment shall be of the essence of the contract.
4.3 A charge of 1.5% applies to all credit card payments.
5. TITLE & RETENTION OF TITLE IN GOODS
5.1 Notwithstanding the delivery of the goods or part thereof the goods remain the sole and absolute property of NATIONWIDE TREES P/L as full legal and equitable owner until such time as the purchaser shall have paid NATIONWIDE TREES P/L the full purchase price together with the full price of any other goods the subject of any other contract with NATIONWIDE TREES P/L.
5.2 The purchaser acknowledges that he receives possession of and holds goods delivered by NATIONWIDE TREES P/L solely as bailee for NATIONWIDE TREES P/L until such time as the full price thereof is paid to NATIONWIDE TREES P/L together with the full price of any other goods then the subject of any other contract with NATIONWIDE TREES P/L.
5.3 Until such time as the purchaser becomes the owner of the goods, he will:
(a) store them on the premises separately;
(b) ensure that the goods are kept in a good and healthy condition;
(c) secure the goods from risk, damage and theft; and
(d) keep the goods fully insured against such risks that are usual or common to insure against in a business of a similar nature to that of the purchaser.
(i) Until the goods are paid for in full, NATIONWIDE TREES P/L authorises the purchaser to sell the goods as its agent. However, the purchaser shall not represent to any third parties that it is acting in any way for NATIONWIDE TREES P/L. NATIONWIDE TREES P/L will not be bound by any contracts with third parties to which the purchaser is a party.
(ii) Records shall be kept by the purchaser of any goods owned by NATIONWIDE TREES P/L.
(iii) The proceeds of any sale of the goods shall be paid into a separate
account and held in trust for NATIONWIDE TREES P/L. The purchaser shall account to NATIONWIDE TREES P/L from this fund for the full price of the goods.
(iv) The purchaser is entitled to a period of credit, but if prior to the expiration of the period of credit the goods are sold and the proceeds of sale received the purchaser shall account to NATIONWIDE TREES P/L for the price of the goods.
(v) Should the purchaser die, stop payment or call a meeting of its creditors or become insolvent or subject to the bankruptcy laws or being a company calls a meeting for the purpose of or to go into liquidation or has a winding up petition presented against it or has a receiver or administrator appointed, NATIONWIDE TREES P/L may at its option notwithstanding its waiver of such default or failure and without prejudice to its other rights under this contract suspend or cancel this contract or require payment in cash before or on delivery or tender of goods or documents notwithstanding terms of payment previously specified or may repossess and take over the goods and dispose of the same in its own interest without prejudice to any claim it may have for damages for any loss resulting from such resale.
5.5 If the purchaser does not pay for any goods on the due date then NATIONWIDE TREES P/L is hereby irrevocably authorised by the purchaser to enter the purchaser's premises (or any premises under the control of the purchaser or as agent to the purchaser in which the goods are store at such premises) and use reasonable force to take possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the purchaser whatsoever.
5.6 On retaking possession of the goods NATIONWIDE TREES P/L may elect to refund to the purchaser any part payment that may have been made and to credit the purchaser's account with the value of the goods less any charge for recovery of the goods, or to resell the goods.
Unless otherwise agreed in writing, risk in the goods shall pass to the purchaser at the time when the goods have been placed on the vehicle which is to effect delivery from NATIONWIDE TREES P/L store or warehouse. The goods shall remain at the purchaser's risk at all times unless and until NATIONWIDE TREES P/L retakes possession of the goods pursuant to these terms and conditions.
7.1 Subject to clause 2.2 herein, NATIONWIDE TREES P/L shall not be liable for any loss or damage whatsoever and howsoever arising whether direct indirect or consequential or in respect of any claim whenever and however made for any loss or damage deterioration deficiency or other fault or harm in the goods manufactured, work executed or services provided by or on behalf of or in any arrangement with NATIONWIDE TREES P/L or occasioned to the purchaser or any third or other party or to his or their property or interest and whether or not due to the negligence of NATIONWIDE TREES P/L its servants or agents.
7.2 As soon as any of the facts or matters which form any part of any claim or complaint whatsoever become known to the purchaser, the purchaser shall within 14 days notify NATIONWIDE TREES P/L in writing of the same.
7.3 NATIONWIDE TREES P/L shall not be liable in any circumstances for any;
(i) defects or damage caused by misuse, abuse, neglect, improper planting, watering or treatment (including transporting) (other than by NATIONWIDE TREES P/L) or accident.
(ii) any transport freight charges installation removal labour or other costs;
(iii) defects in goods not manufactured by it but NATIONWIDE TREES P/L will endeavour to pass on to the purchaser the benefit of any claim made by NATIONWIDE TREES P/L and accepted by the manufacturer of such goods provided that nothing contained in this subparagraph shall limit the rights of the purchaser to proceed against NATIONWIDE TREES P/L pursuant to the Trade Practices Act 1974.
(iv) technical advice or assistance given or rendered by it to the purchaser or not in connection with the manufacture construction or supply of goods for or to the purchaser provided always that NATIONWIDE TREES P/L has rendered such services with due care and skill and that any material supplied in connection with those services are reasonably fit for the purpose for which they are supplied.
7.4 The exemptions, limitations, terms and conditions in these terms and conditions shall apply whether or not the loss or damage is caused by negligence or actions constituting fundamental breach of contract.
8. FORCE MAJEURE
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of NATIONWIDE TREES P/L, NATIONWIDE TREES P/L is unable to perform in whole or in part any obligation under this agreement NATIONWIDE TREES P/L shall be relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and shall not be laible to the purchaser in respect of such inability.
Upon the occurrence of default by the purchaser in compliance with the terms herein;
9.1 NATIONWIDE TREES P/L may at its discretion withhold further supplies of goods or cancel this agreement, or vary the terms of this agreement without prejudice to its rights hereunder PROVIDED HOWEVER that NATIONWIDE TREES P/L may at any time and from time to time upon such terms as it may determine waive any of its rights under this clause, but without prejudice to its rights thereafter of any of the events hereinbefore referred to or upon the continuation after any such waiver of any state of affairs the subject of such waiver.
9.2 The purchaser shall pay NATIONWIDE TREES P/L interest at the rate of 1.5% per month on daily balances in respect of any amounts as may from time to time be overdue until paid and such money together with all interest shall be recoverable forthwith from the purchaser.
9.3 Without prejudice to any other right or remedy the purchaser shall indemnify NATIONWIDE TREES P/L against any costs' fees charges and disbursements charged by any solicitor engaged for the purpose of the collection of moneys due and payable by the purchaser to NATIONWIDE TREES P/L on an indemnity basis and any fees, charges, disbursements or commissions charged by a mercantile agency or debt collecting firm.
9.4 The purchaser shall pay to NATIONWIDE TREES P/L an administration fee of $50.00 on the occurrence of every event of default.
The Purchaser hereby charges with payment of any indebtedness to NATIONWIDE TREES P/L all beneficial interest (freehold and leasehold) in land and personal property held now or in the future by the purchaser. The purchaser agrees that if demand is made by NATIONWIDE TREES P/L, the purchaser receiving such a demand will immediately execute a mortgage or other instrument of security, or consent to a caveat, as required, and against the event that the purchaser fails to do so within a reasonable time of being so requested, the purchaser hereby irrevocably and by way of security, appoints any credit manager or solicitor engaged by NATIONWIDE TREES P/L to be its true and lawful attorney to execute and register such instruments.
If a goods and services or similar value added tax ("GST") applies to this agreement for any reason the purchaser must pay the GST or reimburse NATIONWIDE TREES P/L for any GST paid or payable by NATIONWIDE TREES P/L.