In these terms and conditions, unless the context otherwise requires:
1.1 “BulkNet” means BulkNet Pty. Ltd.
(A.B.N 82 093 361 981) and all corporations, successors or assigns.
1.2 “CONTRACT” means the contract entered into between BulkNet and THE CUSTOMER.
1.3 “CUSTOMER” means the customer purchasing or offering to purchase goods or services from BulkNet (including higher successors and nominees) and where there is more than one customer, the customer’s covenants and obligations are joint and several.
1.4 “DATE OF DELIVERY” is the date on which the goods leave the premises of BulkNet.
1.5 “GOODS” and “GOODS SUPPLIED” includes goods manufactured, imported, supplied and/or delivered by BulkNet and also includes “BulkNet goods”.
1.6 “uno” means unless noted otherwise.
2.1 Non Account Customers: Payment as per terms stated on invoices is required. Goods will not be released until payment in full has been received, including any extra charges such as freight, administration and or processing fees.
2.2 Approved Account Customers: A deposit payment of 20% shall be payable at placement of order and the remainder of payment for goods supplied by BulkNet to the customer shall become due on the date of delivery of the goods and/or otherwise, at the discretion of BulkNet, in accordance with the schedule outlined in 2.3
2.3 Contract Value
A$0 – A$15,000
-30 days net from the date of invoice.
A$15,001 – A$50,000
-20% Deposit with order;
-Balance payable 30 days net from delivery/ shipment.
A$50,001 and above
-20% Deposit with order;
-15% payable upon Submission of drawings for approval;
-Progress payments will be claimed, during the life of the contract, at specific milestone dates, to a maximum of 50% of the contract value;
-Balance payable 30 days net from delivery/ shipment.
2.4 Time of payment shall be of the essence of the contract.
2.5 If payment is not made in accordance with BulkNet’s terms and conditions then BulkNet shall without prejudice to any other remedy be entitled to charge interest and administration charges of 2% above the overdraft rate charged to BulkNet by its bankers from time to time on the moneys outstanding. The customer will also be liable for any legal or other costs incurred by BulkNet in attempting recovery of amounts owed by the customer to BulkNet.
2.6 If the customer delays making payment under the terms of this contract, BulkNet may, without prejudice to any other remedy, suspend supply or delivery of any goods to the customer until such payment is made and BulkNet shall be entitled to increase the contract price to cover any extra expense incurred as a result of the customers default.
2.7 While Eftpos payment is offered to Bulknet customers, administration / processing fees will apply per invoice. Limit on Eftpos payment is restricted to a maximum of AUD$2,000.00
3. DELIVERY OF GOODS
3.1 BulkNet shall make all reasonable efforts to despatch the goods on the date agreed between the parties, but shall not be responsible for any consequential, indirect or other loss arising as a result of any failure by BulkNet to despatch the goods at any agreed time or within a reasonable period. Where no date for despatch has been agreed upon, BulkNet shall orchestrate the despatch of goods within a reasonable time. Where despatch is to be made during a certain period, BulkNet may at its option despatch goods in instalments during the period.
3.2 Where delays in despatching or non despatch is due to the customer failing to obtain any necessary approvals, clearances or other prerequisites to despatch or arises as a result of government interference, riot, acts of public enemies, strikes or lock out, shortages of manpower howsoever occurring, fire, flood, power disturbances, shortage of raw materials, damages to machinery or dislocation of production, dislocation or delay of transport, act of god or any other occurrence reasonably beyond BulkNet’s control, BulkNet shall within 30 days of becoming aware of any such occurrence notify the customer in writing of BulkNet’s inability to despatch and may terminate the contract if it shall so determine.
3.3 Unless otherwise agreed, goods supplied shall be of ordinary commercial quality and all standards including but not limited to tolerances of dimension, strength and weight, shall be of such standard as BulkNet generally applies to such type of goods. BulkNet shall not be liable for over or under despatch of bulk goods provided that any over or under despatch shall not exceed 10% of the ordered quantity.
3.4 Any measures requested by the customer to protect the goods in storage or transit shall be at the customer’s expense.
4. PROPERTY IN THE GOODS
4.1 The parties agree that the ownership of the goods despatched by BulkNet to the customer will not pass to the customer until such time as the goods the subject of the contract and all other goods supplied by BulkNet to the customer have been paid for in full.
4.2 Notwithstanding anything in this clause, risk in the goods shall pass to the customer at the date of despatch.
Terms and Conditions of Trade
4.3 Until such payment has been made,the customer holds the goods as bailee for BulkNet and shall safely and securely store the goods separately from other goods on the premises of the customer in such a manner as to show clearly that the goods are the property of BulkNet.
4.4 Where payment is not made on or before the due date the customer shall, should BulkNet so require, despatch the goods to BulkNet failing which BulkNet is hereby irrevocably authorised to enter at any time by its servants or agents the place where the goods are situated and to repossess the goods, and to remove the goods from any vessel, vehicle, thing or place whether or not they have at any such time before been fixed to any vessel, vehicle, thing of place and for this purpose BulkNet is hereby appointed the customers agent.
4.5 The customer agrees to indemnify BulkNet and keep BulkNet indemnified against all costs incurred by BulkNet in removing the goods and against all claims against BulkNet arising from such removal.
4.6 The customer bears the onus of proving that goods supplied by BulkNet in the customer’s possession (whether mixed with other goods or not) have been paid in full by the customer. If the customer is unable to prove to the satisfaction of BulkNet that the goods identified as BulkNet goods have been paid in full by the customer, then those goods shall be deemed to relate to unpaid invoices outstanding from time to time and such goods are deemed to be the property of BulkNet. BulkNet reserves the right to repossess those goods without having to prove that the goods relate to specific unpaid invoices outstanding at the time of repossession.
4.7 Where the customer makes a new object from the goods, (whether finished or not) or the customer mixes the goods with other goods, or the goods become part of other goods (the “new goods”) the customer agrees with BulkNet that the ownership of the new goods immediately passes to BulkNet and that until payment of all sums owing to BulkNet whether under this or any other contract the customer will hold the new goods as a fiduciary for BulkNet. The ownership of the new goods passes to BulkNet at the beginning of any operation or event by which the goods are converted into the new goods. Where BulkNet has not been in the manner specified in sub clause 2.1 herein, the customer agrees with BulkNet to hold the new goods as bailee for BulkNet, and shall safely and securely store the new goods in a manner that clearly shows the ownership of BulkNet.
4.8 Notwithstanding the provisions of the proceeding sub-clause, the customer may sell the goods and the new goods to another party in the coarse of business and despatch them to that party provided however that:
a. Where the customer is paid by the other party, the customer holds the whole of the proceeds of the sale on trust for BulkNet and shall not mingle any of the proceeds of the sale with the customers own moneys or in any bank account with other moneys, but shall insure that all receipts of the sale are separate and identifiable. Moreover the customer shall immediately on receipt of the
proceeds of sale remit to BulkNet all moneys under the contract; and
b. Where the customer is not paid by the other party, the customer agrees, at the option of BulkNet, to assign his claim against to BulkNet upon BulkNet giving the customer notice in writing to that effect. For the purpose of giving effect to this sub-clause the customer irrevocably appoints BulkNet as its attorney.
4.9 Where the contract is for despatch of the goods by instalments the property shall not pass in any instalment of the goods until payment has been made to BulkNet of the total contract price.
5. WARRANTIES AND INDEMNITIES
5.1 Subject to the provisions of these terms and conditions, BulkNet warrants the goods to be of merchantable quality. The liability of BulkNet pursuant to this warranty or any other warranty implied by operation of the trade practices act 1974 shall be limited to the cost of replacing defective goods, the cost of obtaining equivalent goods, or the cost of repairing the goods at BulkNet’s discretion provided that in all such cases freight costs and costs of dismantling and reassembling shall be borne by the customer.
5.2 Subject to paragraph 5.1 this agreement shall exclude BulkNet from any liability arising out of or in connection with the supply, re-supply, use or reuse of the goods, howsoever arising and whether for consequential loss or otherwise, including but not limited to any liability BulkNet may otherwise have had by virtue of any representation, warranty, term or condition whether expressed or implied.
5.3 The customer hereby indemnifies and agrees to hold BulkNet harmless against all costs, expenses or other liability arising out of or in connection with the despatch to the customer of the goods prepared, manufactured or despatch in accordance with drawings, models, descriptions, analyses, prescriptions other specifications submitted to BulkNet by the customer, including but not limited to actions for alleged infringement of copyright, patents, registered designs or trade marks.
5.4 BulkNet shall take all reasonable steps to care for and maintain any tools or models supplied to it by the customer, provided that all such tools and models shall be insured by, and where necessary repaired at the expense of the customer.
6.1 Subject to clause 5, any advice, recommendation, information, assistance or service provided by BulkNet in relation to goods supplied or manufactured by it in respect of their use or application is given in good faith however any such advice, recommendations, information, assistance or service shall be given and accepted without liability on the part of BulkNet and it shall be the responsibility of the customer to confirm the accuracy and reliability of the same in light of the use to which the customer makes or intends to make of the goods.
7. APPLICABLE LAW
This contract shall be deemed to have been made in New South Wales and is governed by the law of NEW SOUTH WALES.