TERMS AND CONDITIONS
PSW PTY. LTD. (PSW)
TERMS AND CONDITIONS OF TRADING
GENERAL:
These Terms and Conditions shall apply to the exclusion of all others including any Terms and Conditions of the Customer (whether on the Customer's order form or otherwise). No goods shall be supplied by PSW on any terms and conditions other than those set out herein and by taking delivery of the goods the Customer shall be deemed to have agreed to these Terms and Conditions.
PAYMENT:
The Customer agrees to comply with the trading terms of PSW and payment for goods shall be made within 30 days from the date of the invoice.
CLAIMS:
The Customer will be deemed to have accepted the goods as being in accordance with their order unless they notify PSW in writing within 7 days of the receipt of goods.
WARRANTY:
(i) All warranties whether express or implied and whether statutory or otherwise with regard to the goods supplied by PSW as to quality, fitness for purpose or any other matter are hereby excluded except insofar asany such warranties are incapable of exclusion at law.
(ii) The liability of PSW for damages arising out of contract shall be limited to the cost of rectification of any faulty workmanship or material, or the replacement of any faulty goods and PSW accepts no responsibility orliability whatsoever including liability for negligence, goods, that do not correspond with the description on PSW's invoice and/or packaging of the goods sold or any other liability for consequential loss however arising.
FORCE MAJEURE:
If for any reason beyond the control of PSW (including without limitation as a result of any strike, trade dispute, fire, tempest, theft or breakdown), orders cannot be filled at the time stipulated by the Customer, PSW shall be entitled to determine the Contract and the Customer shall not have any claims for damages arising out of such a cancellation, without prejudice to the rights of PSW to recover all sums owing to it in respect of deliveries made prior to the date of such determination.
FREIGHT COSTS:
PSW shall not be liable for freight costs on goods returned to them by the Customer.
RETURN OF GOODS:
(i) No return of goods shall be accepted by PSW unless the Customer has been given prior written authorisation for the return, or an authorisation number from the PSW Sales Department.
(ii) Freight will be at the Customer's expense unless arranged prior and a restocking fee of 10% shall apply to all goods returned to PSW.
(iii) Any first quality goods returned (except for sampling) will incur a 10% handling fee.
DEFAULT:
(i) In the event of the Customer's default under these terms and conditions the Customer shall pay to PSW on demand all costs including without limitation all legal costs assessed on a solicitor/own client basis incurred by PSW in recovering or attempting to recover all amounts outstanding and payable under these terms and
conditions.
(ii) The customer agrees and accepts the right of PSW to charge interest of 14% on all unpaid overdue invoices. A letter from PSW to the customer advising interest will be charged on the unpaid invoice will be sufficient notice of the interest to be charged and the customer accepts and agrees to pay this interest in addition to costs associated with recovery of the invoice due.
CHANGE OF OWNERSHIP:
The Customer agrees to notify PSW in writing of any change of ownership of the Customer within 7 days from the date of such a change.
CANCELLATION:
Orders placed with PSW cannot be cancelled without the written approval of PSW. In the event that PSW accepts the cancellation of any order placed, it shall be entitled to charge a reasonable fee for any work done on behalf of PSW to the date of the cancellation including a fee for theprocessing and acceptance of the Customer's order and request for cancellation.
LIEN:
The Customer hereby acknowledges that PSW has a lien over all goods in its possession belonging tothe Customer to secure payment of any or all amounts outstanding from time to time.
TITLE OF GOODS:
(a) Property in the goods shall not pass until payment in full in cleared funds of all monies owed to PSW has been received for the goods and all other monies owed to PSW by the customer.
(b) The customer acknowledges that until property in the goods passes to the customer in accordance with clause (a), the customer is in possession of the goods concerned for and on behalf of PSW as a fiduciary bailee and agent and is only authorised to sell the goods in the ordinary course of business. Upon taking delivery of the goods, the customer must keep the goods identifiably separate from other goods on the customer’s premises to enable the goods to be identified.
(c) Where the customer fails to perform or observe any of these terms and conditions or PSW in its absolute discretion considers that the customer is in financial difficulties, PSW:
(i) Shall have an immediate right to possession of the goods and the customer irrevocably authorises PSW to enter any premises (forcibly if necessary) in the name of the customer and takethe goods;
(ii) May retain all monies paid on account of the goods;
(iii) May cease delivery of the goods; and
(iv) May recover from the customer all losses (including profits foregone) without prejudice to any other rights of PSW and without PSW being liable in any way to any party whatsoever.
(d) Until payment in full for the goods and of all other amounts owing by the customer to PSW in the
event of sale of goods by the customer:
The customer must:
(i) Deposit all proceeds of sale in a separate and identifiable bank account;
(ii) Not mix such proceeds with any other monies; and
(iii) Account to PSW for such processes; and
(iv) PSW will be entitled to trace all proceeds of sale of the goods received by the customer through the relevant account or any other account maintained by the customer.
(e) If at a time when PSW seeks to recover the goods, the goods have been incorporated in any product:
(i) PSW and the customer shall become tenants in common of the goods concerned in proportion to their respective contributions; and
(ii) If relevant, the customer will be presumed to have disposed of goods not incorporating the goods ahead of goods, incorporating the goods.
(f) This clause does not purport to confer on PSW any contractual rights, but only serves asconfirmation of PSW’s rights at law and in equity.
(g) This clause is not intended to create a charge over the goods or any book debts. To the extent that any part of this clause is construed as creating a charge, the offending words shall be deleted.
POWER TO SELL GOODS:
Nothing herein contained shall prevent the Customer from selling the goods to any third party provided that the proceeds of any such sale shall be held in trust by the Customer, its Servants and/or Agents for PSW until PSW has received payment in full for the goods.
JURISDICTION:
The proper law of all contracts arising between PSW and the Customer is the law of theState of Victoria and the parties agree that all disputes relating to the goods should be determined in a Court of competent jurisdiction nearest Melbourne and the parties irrevocably agree to submit to the exclusivejurisdiction of such Court.