Terms and Conditions
1. A reference to "goods" means a reference to goods agreed to be supplied, or which are supplied, by Shuteye (ABN 96 76144 096) to the Purchaser.
2. A reference to " Shuteye" and the "Purchaser" shall be deemed to include the respective parties named and their heirs, executors, administrators, assigns and successors in title. If the Purchaser comprises more than one person then this agreement shall bind all of those persons jointly and severally.
3. These terms and conditions apply to all agreements and arrangements between the Purchaser and Shuteye in relation to the goods. These terms and conditions supersede and exclude all prior and other discussions, representations and arrangements relating to the supply of goods. Unless Shuteye otherwise agree in writing, these terms and conditions are the only terms and conditions to which Shuteye will be bound and the Purchaser acknowledges that these terms and conditions will in all circumstances prevail over the Purchaser's terms and conditions (if any) of purchase.
4. (a) All amounts payable in respect of the goods are due and payable in full on their due date as advised by Shuteye to the Purchaser. If Shuteye does not advise of a due date for payment then payment for goods is to be prior to delivery.
(b) In the event that the Purchaser defaults in any payment owing to Shuteye, the Purchaser shall pay to Shuteye all costs and expenses (including all disbursements) incurred by Shuteye in respect of the recovery of monies owing by the Purchaser and/or the recovery of goods in the possession of the Purchaser or a third party on an indemnity basis.
(c) Where the Purchaser makes payment by credit card or any other payment method that results in charges and/or amounts being incurred by Shuteye or being deducted for any reason, then the Purchaser acknowledges that Shuteye will only credit to the Purchaser the amount net of any charges and/or deductions.
(d) Payments received by Shuteye may be credited first against any costs or expenses payable by the Purchaser to Shuteye, then accrued interest, and thereafter the debt.
5. Interest shall be charged and debited to the Purchaser's account on all amounts unpaid after the due date. Interest shall be calculated at the rate of 2% per month or part thereof. This rate may be varied from time to time by Shuteye.
6. Credit facilities may be withdrawn by Shuteye at any time.
7. Shuteye will not be liable to the purchaser for any loss or damage howsoever arising in relation to the failure to deliver the goods on or before the designated date for delivery.
8. Shuteye obligation to deliver or sell or provide services shall always be conditional upon it being satisfied of the Purchaser's ability to pay and comply with these terms and conditions. If Shuteye ceases to be so satisfied it may suspend and/or terminate deliveries and shall not be liable in any way for any claim, damage, expense or cost arising therefrom, and all monies then outstanding by the Purchaser shall immediately become due and payable.
9. Unless otherwise agreed in writing, all risk in and to the goods shall pass to the Purchaser upon delivery.
10. (a) Title in and to all goods supplied by Shuteye to the Purchaser shall not pass to the Purchaser and all goods supplied by Shuteye to the Purchaser shall remain the sole and absolute property of Shuteye until such time as the Purchaser has paid to Shuteye all monies due and owing to Shuteye in relation to all accounts.
(b) Until Shuteye has been paid all monies due and owing to it, the Purchaser agrees to keep all goods supplied by Shuteye as fiduciary and as trustee for Shuteye and to store the goods separately from any other goods in a manner that discloses that Shuteye is the owner of the goods and has retained title to the goods. Until Shuteye has been paid all money due and owing to it, the Purchaser also agrees to only sell the goods supplied by Shuteye in the usual course of business on the condition that the purchaser holds all proceeds of sale on trust for Shuteye.
(c) Shuteye is entitled to take possession of and dispose of any goods supplied by Shuteye to the Purchaser as Shuteye sees fit at any time until Shuteye has received payment in full of all monies due and owing to it. The Purchaser grants permission to Shuteye to enter any property where any goods supplied by Shuteye to the Purchaser are stored for the purpose of searching for goods, making an inventory and removing goods, without any liability on part of Shuteye to the Purchaser.
(d) Upon the sale of any goods supplied by Shuteye to the Purchaser prior to the full payment of all monies owing to Shuteye, the purchaser agrees to hold separately all proceeds and to not mix the proceeds with any other monies and to account to Shuteye upon demand. If the Purchaser sells, disposes of, or otherwise deals with the goods or any part thereof before full payment has been received by Shuteye, the Purchaser must advise Shuteye in writing, at such times as Shuteye may request, specifying the serial number of the goods sold, disposed of, utilised or otherwise dealt with. The Purchaser will indemnify Shuteye from any damages, costs, liabilities or penalties Shuteye may suffer or incur as a result of the Purchaser's failure to provide information or from relying on the information provided by the Purchaser.
(e) If title in and to the goods has not passed to the Purchaser in accordance with this clause, the Purchaser's implied right to sell the goods shall immediately terminate upon the happening of any of the following events;
(i) the Purchaser makes default in any payment or is unable or states that it is unable to pay its debts as and when they fall due;
(ii) the Purchaser being an individual commits an act of bankruptcy or has a controller or trustee appointed in respect of the Purchaser's estate or any of the Purchaser's property or assets;
(iii) the Purchaser being a company passes a resolution for its winding up or enters into liquidation or has an application for winding up filed against it;
(iv) a receiver, receiver and manager, controller or voluntary administrator is appointed over any part of the property or assets of the Purchaser;
(v) the Purchaser experiences any analogous event having substantially similar effect to any of the events specified above.
11. (a) Shuteye obligation to supply goods shall be suspended during any period in which Shuteye may be prevented or hindered from delivering the goods by its normal means of supply or delivery through any circumstances outside its reasonable control, including breakages of machinery, strikes or any unexpected cause.
(b) In the event the Purchaser is in default of any of these terms and conditions, Shuteye, at it's election, may at any time thereafter cancel any order yet to be completed or fulfilled and recover from the Purchaser all losses, damages, costs, interest, charges, including handling charges payable to both Shuteye and it's suppliers and expenses incurred or suffered by Shuteye as a result of the Purchaser's default.
12. Subject to any express written warranty given by Shuteye, and subject to any statutory warranties express or implied which by law cannot be excluded, all warranties, conditions and representations, express or implied are expressly negatived and no warranties are to be implied into this agreement. Shuteye liability for each condition and warranty is limited to any one of the following as determined by Shuteye:
(a) the replacement of goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the payment of the costs of replacing the goods or of acquiring equivalent goods; or
(d) the payment of the costs of having goods repaired or re-supplied.
13. All claims must be made by written notice within 7 days of delivery date. The Purchaser is responsible for examining the goods for any defects. Where notice is not so given the Purchaser is deemed to have accepted the goods as being of merchantable quality and free from any defects.
14. No returns of goods will be accepted without prior authorisation.
15. Where the Purchaser is a company, Shuteye may require the Purchaser to procure a guarantee and indemnity from the directors of the Purchaser in the form attached to these terms and conditions or in such other form as Shuteye may reasonably require.
16. The Purchaser and Shuteye agree that the appropriate jurisdiction for any disputes relating to sale of goods by Shuteye to the Purchaser will be the state of Victoria and the laws of the state of Victoria are the governing laws of this agreement.
17. The Purchaser acknowledges that Shuteye will have the right to vary all or any of these terms and conditions by providing 1 months notice of changes to the Purchaser.
18. If any part of these conditions is or becomes void or unenforceable that part is severed so that all parts which are not void or enforceable will remain in full force and in effect.