Terms & Conditions
To the fullest extent legally possible, all dealings between Preview Pty Ltd ACN 124 127 117 (and its subsidiaries, divisions, affiliates, related and associated companies, trusts & other entities and/or any successors and/or assigns) (“the Supplier”) and any Customer ("the Customer") relating to any products or services are subject to the following Terms & Conditions of Trade (“these Terms”) unless otherwise agreed in writing.
1. Statutory provisions: These Terms a) are to be read subject to the provisions of the Trade Practices Act 1974 (as amended from time to time) and any other relevant and applicable State and/or Commonwealth legislation (Statutory Provisions) b) unless the Supplier otherwise agrees in writing these are the only terms and conditions of sale to which the Supplier will be bound and the Customer agrees that these Terms will in all circumstances prevail over the Customer’s terms and conditions of purchase (if any) and (c) supersede and exclude all prior and other discussions, representations (contractual and otherwise) and arrangements in relation to the supply of goods and/or services including, but not limited to, those in relation to the performance of the goods or the results that may be expected from using the goods.
2. Payments & Interest: Payment for all orders must be made within 30 days of invoice date without set-off or deduction, unless otherwise agreed in writing. Interest is payable on overdue payments at the Supplier’s election at the rate prescribed under the Penalty Interest Rates Act 1983 (Vic) plus an additional 3% per annum until payment in full is received by the Supplier. The Supplier is irrevocably authorised to allocate the payment of any monies received from time to time from the Customer towards any outstanding amounts owed by the Customer (including interest, part payment of an invoice, administration, collection & other costs) in any order.
3. Property: a) Even if the Supplier grants any credit facility and/or time to pay, property in products shall not pass until payment in full to the Supplier of all monies owed to the Supplier on any basis and on any account whatsoever b) The Supplier reserves the right to take possession & dispose of products as it sees fit at any time until full payment & the Customer grants permission to the Supplier to enter any property where any product is in order to do so with such force as necessary c) Immediately upon delivery the Customer accepts liability for the safe custody of products d) A certificate signed by an officer of the Supplier identifying the Supplier’s products & certifying that monies are owing to the Supplier shall be conclusive evidence of the Supplier’s title thereto e) Upon sale or disposition of products prior to payment in full the Customer agrees to hold all proceeds Upon Trust for the Supplier in a separate bank account, not to mix proceeds with any other monies and to account to the Supplier for the same as fiduciary and bailee f) Until full payment the Customer agrees (i) to keep all products as fiduciary and bailee for the Supplier & store them in a manner which shows the Supplier as owner (ii) only to sell products in its usual course of business (iii) sale on terms, at cost or less than cost shall not be “in the usual course” g) This clause 3 is not intended to create a charge over any property & shall be read down to the minimum extent necessary to avoid being a charge h) without derogating from the Supplier’s rights as a creditor of the Customer or arising under these Terms if any products supplied by the Supplier are used in any production process and/or manufacturing process or combines them with anything to create a finished or combined new thing which results in an entitlement of the Customer to receive money from any third party the Customer agrees to hold such part of any monies received by the Customer (or the corresponding book debt owed to the Customer in respect of those monies) as is equivalent to the value of any goods used in the process as invoiced to the Customer by the Supplier UPON TRUST for the Supplier until payment in full for those goods and all other monies owed to the Supplier on any account; i) goods will be deemed to be dealt with by the Customer on a “first in first out” basis..
4. Limitation Of Liability: Subject to the Statutory Provisions: a) the Supplier warrants that all goods supplied comply with any supplied specifications for those goods but otherwise excludes, to the maximum extent permissible by law, all other conditions and warranties in relation to the goods; b) no dealing with the Customer will be or be deemed to be a sale by sample; c) In respect of goods not acquired for personal, domestic or household use or consumption, the liability of the Supplier for any condition or warranty implied by law is limited to any one of the following as determined by the Supplier (i) the replacement of the goods or the supply of equivalent goods; or (ii) the refund of the price paid by the Customer for the goods; d) the Customer must examine the goods for damage or defects and must notify the Supplier of any defects in writing within 7 days of delivery. If the Customer does not notify the Supplier within 7 days of delivery the Customer will be taken to have accepted the goods; e) to the extent the law permits and notwithstanding any other clause of these Terms or otherwise, the Supplier excludes all liability whatsoever to the Customer arising out of or in connection with the sale of goods to the Customer including for any consequential or indirect losses of any kind howsoever arising and whether caused by breach of statute, breach of contract, negligence or any other tort. Consequential or indirect losses will be taken to include any loss of income, profit or business, in the nature of overhead costs and of goodwill or reputation.
5. Returns: a) Any products which are accepted in writing by the Supplier as defective may be returned and i) be replaced free of charge or ii) be the subject of a credit for the invoiced value. Replacement free of charge does not include labour transport or material costs.
6. Specific Orders: Customer specific orders may be rejected by the Supplier at its election, unless accompanied by a non-refundable deposit of at least 50% of the total order price. No order will be binding on the Supplier until accepted by the Supplier in writing or by satisfying the order. All credit orders are accepted by the Supplier subject to satisfactory credit approval of the Customer and credit approval, if granted, may be withdrawn at any time.
7. Placement Of Orders: a) if any dispute arises concerning any order (& including any measurement quality quantity identity or authority or any telephone facsimile e-mail or computer generated order) the internal records of the Supplier will be conclusive evidence of what was ordered b) each order placed shall be & be deemed to be a representation made by the Customer at the time that it is solvent & able to pay all of its debts as & when they fall due c) failure to pay in accordance with these Terms shall be & be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in 7.b) & that the representations were misleading and deceptive d) when any order is placed, the Customer shall inform the Supplier of any material facts which would or might reasonably affect the commercial decision by the Supplier to accept the order &/or grant credit in relation thereto. the Supplier
8. Delivery: a) The Supplier accepts no responsibility for delivery but may elect to arrange delivery at its discretion & without any liability & at the Customer's costs & responsibility in all things b) the Supplier reserves the right to charge for any delivery c) the Customer shall be deemed to have accepted delivery & liability for the products immediately the Supplier notifies that they are ready for collection or when they are delivered to a carrier or to the Customer's business premises or site whether attended or not d) a certificate purporting to be signed by an officer of the Supplier confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket e) Any delivery date quoted by the Supplier is an estimate only and the Supplier will not be liable for delay, failure or inability to deliver any products f) once the Customer has been notified that products are ready for collection, the Customer agrees to pay all costs of holding or handling products g) If the time spent in attempting to or effecting delivery exceeds 30 minutes or requires more than one attempt, the Customer agrees to pay all costs relating thereto together with a loading of 10% to cover administration costs.
9. Variation: or cancellation of any order dealing or arrangement must be agreed in writing
10. Purchase Price: a) All sales are made by the Supplier at its ruling price at the time of delivery b) government imposts and any GST (“imposts”) will be to the Customer’s account c) the Supplier’s price lists and quotation forms exclude GST and any other imposts unless expressly noted thereon.
11. Exclusions: a) No dealing with the Customer shall be or be deemed to be a sale by sample or description b) If the Supplier publishes material about its products & prices, any part which is incompatible with these Terms is expressly excluded c) the Customer will rely on its own knowledge & expertise in choosing any product for any purpose d) Any advice or assistance given for or on behalf of the Supplier shall be accepted at the Customer’s risk & shall not be or be deemed given as expert or adviser nor to have been relied upon.
12. Default: any failure by the Customer to make payment in full on the due date for payment or any other breach by the Customer of these Terms or in any dealings with the Supplier will entitle the Supplier to call-up all monies, retain all monies paid and/or cease further deliveries of goods and/or provision of services & recover from the Customer all lost profits and/or at its discretion take immediate possession of any goods without prejudice to any other rights & without being liable in any way to any party.
13. Severability: Any part of these Terms can be severed without affecting any other part.
14. Products: a) The Supplier may update, modify, make substitution to or alter any of its products or any component or raw material incorporated in or used in forming any party of any products as part of its ongoing business. The Customer agrees to accept current products in substitution for any products ordered provided they are not materially different b) The Supplier disclaims any responsibility or liability relating to any products i) processed or made to designs drawings specifications or measurements etc or with materials which are provided or approved (whether in part or fully) by or on behalf of the Customer ii) utilised stored handled or used incorrectly or inappropriately c) The Customer agrees to check products for compliance with all applicable Standards & regulatory bodies before use, on-sale or application & only to use on-sell or apply products in accordance therewith and with any manufacturer’s or the Supplier’s recommendations & directions as well as with sound commercial practice.
15. Allocation of stock: The Supplier has a continuing discretion to allocate available stock & gives no warranty as to certainty of supply unless expressly agreed in writing in advance.
16. Recovery Costs: The Customer will pay all costs & expenses of the Supplier, its legal advisers, mercantile agents & others acting on its behalf in respect of anything instituted or being considered as a result of any breach of these Terms by the Customer or of any dealings with the Supplier.
17. Attornment: To give effect to its obligations arising under in these Terms the Customer hereby irrevocably appoints any solicitor for the Supplier from time to time, as its attorney.
18. Customer Restructure: The Customer will notify the Supplier of any change in its structure or management including any change in director shareholder management partnership or trusteeship or sale of any material part of its business within 7 days of any such change.
19. Jurisdiction: These Terms and Conditions and any contract of sale arising hereunder shall be governed by the laws applying in the State or Territory of Australia in which the goods sold by the Supplier to the Buyer are delivered to the Buyer. The parties bound by these Terms and Conditions hereby consent jurisdiction of the courts of that State or Territory in respect to any litigation or dispute between them related to these Terms and Conditions and any contract of sale governed by them.
20. Credit Limit: The Supplier can vary or withdraw any credit facility or limit at any time at its discretion & without any liability to the Customer or any other party. Where credit has not been granted, or is withdrawn, payment for all goods is required on delivery or at such other time specified by the Supplier in writing.
21. Waiver: If the Supplier elects not to exercise any rights arising as a result of breach of these Terms it shall not constitute a waiver of any rights relating to any subsequent or other breach.
22. Notice: The Customer will be deemed to have notice of any change to these Terms, immediately they are adopted by the Supplier in its business.
23. Security For Payment: The Customer a) agrees on written request to charge in favour of the Supplier (i) by way of a fixed charge, all its books of account goodwill documents of title & current & later acquired real & intellectual property & (ii) by way of a floating charge the whole of the Customer’s other undertaking property & assets with payment of all monies owed to the Supplier b) grants a lien to the Supplier over any of its property in the possession or control of the Supplier for any monies due and owing to the Supplier under these Terms or otherwise.
24. Force Majeure: The Supplier will not be in default or breach of any dealing with the Customer as a result of Force Majeure (ie: anything beyond the Supplier’s reasonable control).
25. Returnable Packing: The Customer agrees if requested by the Supplier, to return all “A” frames, “L” frames, stillages, packing materials or containers of the Supplier (“Packing”) at the Customer’s cost. The Customer agrees to pay the full replacement cost of all lost and/or damaged Packing.
26. Patents etc: If the Supplier utilises any design patent or intellectual property or follows any instruction provided by or on behalf of the Customer the Customer indemnifies the Supplier against any claim proceeding damages or liability for any loss cost or expense arising as a result whether for any alleged infringement of any intellectual property or otherwise.
27. Inspection: Product sold subject to Customer inspection shall be inspected prior to any dispatch and conducted at premises notified by the Supplier within 7 days of such notification.
28. Specifications: a) Any illustration drawing or specification supplied by the Supplier (“Specs”) are drafts and approximates b) Any tangible or intellectual property rights in Specs shall remain the property of the Supplier and may be recalled at any time c) Specs to be treated at all times as confidential and not made use of without the prior written consent of the Supplier.
29. Materials: All materials supplied by the Customer must be shipped by the Customer to the factory or site nominated by and in accordance with the Supplier instructions & at the cost and risk of the Customer. Such materials will remain at the Customers risk at all times.
30. Stock Discretion: the Supplier has a continuing discretion to allocate available stock and gives no warranty as to certainty of supply unless expressly agreed in writing in advance.
31. Partial Delivery/Forward Orders: If the Customer places forward orders or request partial or installment delivery, the Customer agrees a) to pay for so much of any order as is from time to time delivered by the Supplier b) that no delay or failure to fulfill any part of any order shall entitle the Customer to cancel or vary any order or delay or reduce any payment.
32. Acceptable Variation: The Customer will accept variation in quantities at plus or minus 5% and will pay pro-rata for the actual quantity delivered.
33. Minimum Charge: The Customer will pay the Supplier its minimum charges for anything the Customer orders which is below the Supplier’s applicable minimum order at the time of order.
34. Intellectual Property: a) The Customer agrees that all tooling, material, industrial and/or intellectual property employed in the preparation for sale or production of any goods and/or services shall be & remain the Supplier’s property notwithstanding any contribution by the Customer relating thereto and b) the Customer must not advertise, use or represent any of the Supplier’s intellectual property or of any goods themselves in any way without the Supplier’s prior written consent and indemnifies the Supplier against any loss, cost or expense in connection with any breach of this clause.
35. On-Sale: The Customer agrees that upon on-sale of any products to inform any third party involved of these Terms and in particular the provisions of clause 4 and sub-clause 4 (g).
36. Indemnity: The Customer indemnifies the Supplier against any claim or loss arising from or related in any way to any contractor dealing between the Supplier & the Customer or anything arising therefrom or arising as a result of or subsequent to any breach of these Terms
37. Insurance: The Customer agrees to insure the Supplier from any liability claim or damage arising in any way; whether directly or indirectly under part VA of the Trade Practices Act, these Terms, which insurance will note the insured interest of the Supplier.