Sebel Terms and Conditions of Sale
1. Sebel is a division of Resero Pty Ltd. The parties acknowledge that, unless Resero Pty Ltd ABN 55 621 106 312 (Supplier) and the applicant who has agreed to purchase Goods from the Supplier (Applicant) expressly agree otherwise in writing, these terms and conditions (Terms and Conditions) apply to and govern all sales of Goods by the Supplier to the Applicant. Any order for Goods from the Supplier placed by the Applicant will be deemed acceptance of these Terms and Conditions.
2. In these Terms and Conditions, unless the context requires otherwise: Agreement means, in respect of each order of Goods, these Terms and Conditions together with the Supplier’s quotation (if any), the relevant order form accepted by the Supplier any other document agreed in writing by the parties as forming part of the Agreement (including for the avoidance of doubt any credit account application). Goods means all furniture, fittings, seating and all other goods or other property supplied by the Supplier to the Applicant from time to time under these Terms and Conditions and as further described in an order. PPSA mean the Personal Property Securities Act 2009.
3. The terms of payment are strictly thirty (30) days (or such other period as nominated by the supplier herein) after the Receival Date. Receival Date means the date upon which the Goods are: (a) physically received by the Applicant into their warehouse, factory, store or other location advised by the Applicant (where the Supplier has agreed to deliver to such location); or (b) if collected by the Applicant, are collected from the Supplier. The Supplier may, at any time, unilaterally vary these Terms and Conditions in its absolute and unfettered discretion.
4. Should the Applicant not pay for the Goods or services supplied by the Supplier in accordance with the credit terms as provided herein, or as agreed in writing by the Supplier from time to time, the Supplier will be entitled to charge an administration fee of:
(a) 10 percent of the amount of the invoice payable; and (b) a further 10 percent per annum payable per year, or part thereof, until payment by the Applicant.
5. Despite clause 3, payment is due within seven (7) days of the Supplier's notification that the Goods are available for delivery if:
(a) a delivery hold request is received for the Goods before manufacture is completed, and agreed by the Supplier; (b) the Applicant refuses to take delivery of the Goods; or (c) the Applicant requests that delivery of the Goods be delayed, irrespective of whether the circumstances for the request are within the control of the Applicant.
The Supplier may invoice the Applicant for storage charges incurred by the Supplier (to be at market rates (plus GST)) where Goods not transported from the Supplier’s storage facilities as result of the receipt of a delivery hold request from the Applicant, the Applicant refusing to take delivery and/or the Applicant requesting that the delivery of the Goods be otherwise delayed.
6. The Supplier will provide monthly statements of account to the Applicant. If charges are in dispute, including pricing disputes, the Applicant must raise a claim for the disputed amount and pay the balance of the invoice by the due date.
7. The Supplier may accept or refuse any order for Goods at its absolute and sole discretion and without notice to the Applicant. Orders for Goods cannot be suspended or cancelled by the Applicant except with the Supplier's written consent.
Delivery and risk
8. The goods are at the risk of the Applicant from commencement of unloading at the Applicant's specified delivery location.
9. Delivery dates are estimates only and the Supplier is not liable for any loss or damage for failure to deliver by those dates.
10. The Supplier may make part deliveries of any order and render an invoice to the Applicant for the Goods delivered. Failure to make delivery of the total order will not invalidate the sale.
11. Subject to clause 9, the Supplier will, at the Applicant's cost and request, arrange for transportation of all Goods from the Supplier's Sydney, NSW, warehouse to the Applicant's specified delivery location, otherwise the Applicant shall arrange for transportation.
12. The Applicant acknowledges that the Supplier does not hold, and is not required to hold, professional indemnity or contractors all risk insurance.
13. The Applicant acknowledges and agrees that this Agreement shall be governed by the laws of New South Wales, and the laws of the Commonwealth of Australia which are in force in New South Wales.
14. The Applicant acknowledges and agrees that any contract for the supply of Goods or services between the Supplier and the Applicant is formed at the address of the Supplier.
15. The parties to this Agreement submit to the non exclusive jurisdiction of the courts of New South Wales and the relevant federal courts and courts competent to hear appeals from those courts.
16. The Applicant charges in favour of the Supplier all of its estate and interest in any real property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.
17. The Applicant charges in favour of the Supplier all of its estate and interest in any personal property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.
18. The Applicant appoints as its duly constituted attorney the Supplier's company secretary from time to time to execute in the Applicant's name and as the Applicant's act and deed any real property mortgage, bill of sale or consent to any caveat the Supplier may choose to lodge against real property that the Applicant may own in any Land Titles Office in any state or territory of Australia, even though the Applicant may not have defaulted in carrying out its obligations hereunder.
19. Where the Applicant has previously entered into an agreement with the Supplier by which the Applicant has granted a charge, mortgage or other security over real or personal property, those charges, mortgages or other security interests will continue and co-exist with the obligations and security interests created in this Agreement and will secure all indebtedness and obligations of the Applicant under this Agreement. The Supplier may, at its election, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.
Purpose of credit
20. The Applicant acknowledges and agrees that the credit to be provided to the Applicant by the Supplier is to be applied wholly or predominantly for commercial purposes.
Formation of contract
21. Quotations made by the Supplier shall not be construed as an offer or obligation to supply in accordance with the quotation. The Supplier reserves the right to accept or reject, at its discretion, any offer to purchase received by it. Only written acceptance by the Supplier of the Applicant's offer shall complete a contract.
22. Placement of an order, either verbally or in writing, shall imply acceptance of the Supplier's offer and of these Terms and Conditions.
Retention of title
23.Title in the Goods does not pass to the Applicant until the Applicant has made payment in full: (a) for the Goods; and (b) of all the other money owing by the Applicant to the Supplier (whether in respect of money payable under a specific contract or on any other account whatsoever).
24. Whilst the Applicant has not paid for the Goods supplied in full at any time, the Applicant agrees that property and title in the Goods shall not pass to the Applicant and the Supplier retains the legal and equitable title in those Goods supplied and not yet sold. 25. Until payment in full has been made to the Supplier, the Applicant will hold the Goods in a fiduciary capacity for the Supplier and agrees to store the Goods in such a manner that they can be identified as the property of the Supplier, and shall not mix the Goods with other similar Goods.
26. The Applicant will be entitled to sell the Goods in the ordinary course of its business, but until full payment for the Goods has been made to the Supplier, the Applicant shall sell as agent and bailee for the Supplier and the proceeds of sale of the Goods shall be held by the Applicant on trust for the Supplier absolutely.
27. The Applicant must immediately account to the Supplier for the proceeds of sale to the extent to which the proceeds are necessary to satisfy the monies due.
28. The Applicant's indebtedness to the Supplier, whether in full or in part, shall not be discharged by the operation of clause 26 hereof unless and until the funds held on trust are remitted to the Supplier.
29. The Applicant agrees that whilst property and title in the Goods remains with the Supplier, the Supplier has the right, with or without prior notice to the Applicant, to enter upon any premises occupied by the Applicant (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Applicant) to inspect the Goods of the Supplier and to repossess the Goods which may be in the Applicant's possession, custody or control when payment is overdue.
30. The Applicant will be responsible for the Supplier's costs and expenses in exercising its rights under clause 29. Where the Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Applicant against the Supplier, its employees, servants or agents.
31. The Applicant agrees that where the Goods have been retaken into the possession of the Supplier, the Supplier has the absolute right to sell or deal with the Goods, and if necessary, sell the Goods with the trademark or name of the Applicant on those Goods, and the Applicant hereby grants an irrevocable licence to the Supplier to do all things necessary to sell the Goods bearing the name or trademark of the Applicant.
Personal Property and Securities Act
32. For the avoidance of doubt, the Supplier's interest constitutes a 'purchase money security interest' pursuant to the PPSA.
33. Until ownership of the goods passes, the Applicant waives its rights it would otherwise have under the PPSA: (a) under section 95 to receive notice of intention to remove an accession; (b) under section 118 to receive notice that the Supplier intends to enforce its security interest in accordance with land law; (c) under section 121(4) to receive a notice of enforcement action against liquid assets; (d) under section 125 to dispose of or retain collateral; (e) under section 129 to receive a notice of disposal of goods by the Supplier purchasing the goods; (f) under section 130 to receive a notice to dispose of goods; (g) under section 132(2) to receive a statement of account following disposal of goods; (h) under section 132(4) to receive a statement of account if no disposal of goods for each 6 month period; (i) under section 135 to receive notice of any proposal of the Supplier to retain goods; (j) under section 137(2) to object to any proposal of the Supplier to retain or dispose of goods; (k) under section 142 to redeem the goods; (l) under section 143 to reinstate the security agreement; and (m) under section 157(1) and 157(3) to receive a notice of any verification statement.
34. The Applicant will, at the request of the Supplier, execute documents and do such further acts as may be required for the Supplier to register the security interest granted by the Applicant under the PPSA.
35. The Applicant agrees to accept service of any document required to be served, including any notice under this Agreement or the PPSA or any originating process, by prepaid post at any address nominated in this application or any other address later notified to the Supplier by the Applicant or the Applicant's authorised representative.
36. The Applicant further agrees that where we have rights in addition to those under part 4 of the PPSA, those rights will continue to apply.
37. The Applicant irrevocably grants to the Supplier the right to enter upon the Applicant’s property or premises, without notice, and without being in any way liable to the Applicant or to any third party, if the Supplier has cause to exercise any of their rights under sections 123 and/or 128 of the PPSA, and the Applicant shall indemnify the Supplier from any claims made by any third party as a result of such exercise.
Consent to register
38. The Applicant hereby consents to the Supplier recording the details of this Agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by the Supplier to affect such registration.
39. The Applicant waives any right or entitlement to receive notice of the registration of any security interests) created by this instrument on the Personal Property Securities Register.
Acceptance and return of Goods
40. The Applicant is deemed to have inspected and accepted the Goods if they fail to notify the Supplier within three (3) days after the Receival Date that they are not in accordance with the order or are of faulty manufacture. To the extent permitted by the Competition and Consumer Act 2010 the Supplier's liability is limited (at the Supplier's election) to: (a) replacing the relevant Goods (b) the cost of obtaining equivalent products; or (c) the cost of having the relevant Goods repaired.
41. Goods are sold on a non-return basis and unless they are not in accordance with the order or are of faulty manufacture, cannot be returned without the Suppliers, written approval.
42. If the Supplier approves the return of Goods the Applicant will be allowed credit for returned Goods on the following conditions: (a) the number and date of the invoice must be quoted by the Applicant; (b) Goods must be returned within seven (7) days of the Receival Date and otherwise in accordance with the Supplier's directions; (c) unless not in accordance with the order or faulty, the Supplier reserves the right to charge a restocking fee of 10 per cent (plus GST) to all approved Goods returned, plus packing and delivery costs incurred by the Supplier to cover overheads associated with the Goods returned; and (d) a copy of the Supplier's written return approval must accompany the Goods (otherwise, they will not be accepted).
43. In the event the Supplier has agreed in writing to supply fixed or stadia seating (Outdoor Seating) and provide installation services in respect of that Outdoor Seating, then and only then clauses 43 to 55 will apply. The Supplier will procure installation of seating at the site and may engage contractors for this purpose.
44. The Applicant acknowledges that drilling through any membrane on the area for seat installation is required to install seats.
45. The Applicant acknowledges that any painting of, or membrane applied to, the area for seat installation must be cured prior to the Supplier's occupation of work area.
46. The Supplier will not be responsible for the integrity of fixing if directed by the Applicant or their representative to install to any substrate or membrane that is not fully cured.
47. Continuous clear and unfettered access to the workface at the site must be provided.
48. Access to or suitable lifting devices must be made available by the Applicant to the Supplier at the site and be of sufficient reach to deliver pallets to each applicable level.
49. The Applicant acknowledges that there may be a spacing difference (typically up to 20mm) between seats in a row to ensure aisle alignment.
50. It is assumed that the concrete will be within acceptable tolerance limits, therefore, and no allowance has been made for packing or making good fixing surfaces.
51. It is the Applicant's responsibility to ensure that all bases or flooring to which seating is to be affixed meet the Supplier's minimum fixing requirements applicable to the seating to be installed.
52. Access to power is to be provided on-site by the Applicant to facilitate installation of seating. 53. Seating is to be set out in accordance with layout drawings agreed with the Supplier. Seating layout agreed with the Supplier is only in respect of quantum of seats to be installed at the premises. The Supplier does not assume responsibility for nor warrant that all seating will have clear line of sight. It is the Applicant's responsibility to ensure clear line of sight.
54. Final clean is to include a dry sweep of the area for seat installation but not removal of any stains that may be caused by other contractors.
55. The Applicant must ensure that the Supplier is provided, at no cost with adequate waste disposal bins for rubbish removal. Protection of seating prior to the date of practical completion seating installation is limited to the provision of plastic bags to the mouldings. These bags will be removed just before final handover thus negating the need for a final clean of the mouldings.
56. The Supplier's polypropylene formulation for standard outdoor seating does not contain additional flame retardant additives.
57. If fire retardant UV formulation for outdoor seating is required by the Applicant it is provided on the basis that it is understood by the Applicant that the seating is susceptible to increase UV degradation, oxidisation and reduced colour fastness.
Cancellation of order
58. If the Supplier agrees to cancellation of an Applicant's order prior to delivering the Goods, the Supplier may charge for all costs incurred prior to cancellation and a cancellation fee of up to 10 per cent of the price of Goods (plus GST) to cover overheads associated with the order.
59. The Supplier warrants Goods against defects arising from faulty labour and/or materials found during normal usage of the products. This applies from the Receival Date of all Goods. For more information on warranty periods please refer to http://www.sebelfurniture.com/sebel-warranty (Express Warranty).
60. The Express Warranty does not apply to defects or damage which in the Supplier's opinion have been caused by neglect, misuses or poor handling in transit by the Applicant. It does not cover any damage caused by flood, fire or other acts of nature beyond the Supplier's control.
61. Repayment or replacement under the Express Warranty will be undertaken at the supplier's discretion where Goods are returned.
62. The Applicant acknowledges and accepts that plastic moulded products may fade over time subject to exposure to variations in the environmental conditions.
Cancellation of terms of credit
63. The Supplier reserves the right to withdraw credit at any time, whether the Applicant is in default under the terms of this Agreement or not.
64. Upon cancellation with or without notice all liabilities incurred by the Applicant become immediately due and payable to the Supplier.
65. To the extent permissible by law, the Applicant agrees to indemnify the Supplier and its officers, employees, contractors and agents and keep them indemnified against any claims, costs, expenses, losses, damages and liability suffered or
incurred arising from the Applicant's (including its officers, employees, contractors and agents) breach of these Terms and Conditions or any negligent or unlawful act or omission of the Applicant in connection with the Goods or use of the Goods contrary
to the Supplier's instructions. This indemnity includes any legal fees and expenses the Supplier incurs in order to enforce its rights, on an indemnity basis. Provision of further information
66. The Applicant undertakes to comply with any request by the Supplier to provide further information for the purpose of assessing the Applicant's creditworthiness, including an updated credit application.
67. If the Applicant is a corporation (with the exception of a public listed company), it must advise the Supplier of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of
directors or shareholders the Supplier may ask for new guarantors to sign a guarantee and indemnity.
68. To the extent permitted by law, it is the Applicant's responsibility to ensue that Goods supplied by the Supplier are suitable for the environment in which they are to be used and meet all applicable regulatory requirements (including any requirements under Building Code of Australia and any fire engineered solutions).
69. The Supplier does not hold itself out as possessing any expertise as to whether seating supplied by them meets any particular requirements under the Building Code of Australia or any fire engineered solution in respect of the site, makes no
representation as to fitness for purpose of seating it supplies and hereby disclaims all responsibility in that regard including without limiting this clause, where the Applicant
or its consultant specifies specific Goods or a finish. In circumstances where a particular regulatory standard or requirements is to be met, responsibility for that
standard or requirement rests with the Applicant.
70. The Applicant acknowledges and agrees that: (a) variations in the colour of Goods or fabrics used in Goods may occur where Goods or fabric is manufactured in more than one batch; (b) where fabric suppliers to the Supplier change or vary fabrics, the Supplier reserves the right to vary or change fabrics (and prices) quoted to, or previously agreed with the Applicant; and (c) colour variations can occur between seating that does not contain UV or flame retardant additives, and seating that contains UV or flame retardant additives.
71. If the Applicant is a corporation, the Applicant warrants that all of its directors have signed this Agreement and that all of its directors will enter into a guarantee and indemnity with the Supplier in relation to the Applicant's obligations to the Supplier.
72. If the Applicant is the trustee of a trust (whether disclosed to the Supplier or not), the Applicant warrants to the Supplier that: (a) the Applicant enters into this Agreement in both its capacity as trustee and in its personal capacity; (b) the Applicant has the right to be indemnified out of trust assets; (c) the Applicant has the power under the trust deed to sign this Agreement; and (d) the Applicant will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier.
73. The Applicant must give the Supplier a copy of the trust deed upon request.
74. If the Applicant enters into this Agreement as partners, the Applicant warrants that all of the partners have signed this Agreement and that all of the partners will enter into a guarantee and indemnity with the Supplier in relation to the Applicant's obligations to the Supplier.
75. If the Applicant is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Supplier. In the case of a change of partners, the Supplier may ask for new guarantors to sign the guarantee and indemnity.
76. If the Applicant becomes insolvent, the Applicant remains liable under this Agreement for payment of any liabilities incurred hereunder. The Applicant remains liable under this Agreement even if the Supplier receives a dividend or payment as a result of the Applicant being insolvent.
77. A waiver of any provision or breach of this Agreement by the Supplier must be made by an authorised officer of the Supplier in writing. A waiver of any provision or breach of this Agreement by the Applicant must be made by the Applicant's authorised officer in writing.
78. The Applicant must pay for its own legal, accounting and business costs and all costs incurred by the Supplier relating to any default by the Applicant. The Applicant must also pay for all stamp duty and other taxes payable on this Agreement (if any).
79. The Applicant will pay the Supplier's costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Applicant, including debt recovery fees and legal costs on an indemnity basis. Such costs and disbursements will be due and payable by the Applicant to the Supplier irrespective of whether pursuit of the recovery action, claim or remedy is successful.
80. The Applicant acknowledges and agrees that payments by the Applicant will be applied by the Supplier as follows. (a) Firstly, in payment of any and all collection costs and legal costs in accordance with clauses 29 and 79. (b) Secondly, in payment of any interest incurred in accordance with clause (c) Thirdly, in payment of the outstanding invoice(s).
81. In circumstances where the Supplier seeks to enforce a purchase money security internet under the PPSA over collateral or proceeds (these terms being consistent with the terms defined in the PPSA), payments received from the Applicant will be allocated in a manner at the Supplier's absolute and unfettered discretion, so as to attribute, to the greatest extent possible, the unpaid balance of the debt to the purchase money obligation in respect of the collateral and/or proceeds over which the Supplier seeks to enforce its purchase money security interest.
82. To the extent that payments have been allocated to invoices by the Supplier in it's business records, the Supplier may, at its sole and unfettered discretion, allocate and/or retrospectively reallocate payments in any manner whatsoever at the Supplier's absolute discretion, including in a manner inconsistent with clause 81 herein.
83. Payments allocated (and/or reallocated) under clauses 81 and/or 82 will be treated as though they were allocated (and/or reallocated) in the manner determined by the Supplier on the date of receipt of payment.
Taxes and duty
84. The Applicant must pay GST on any taxable supply made by the Supplier to the Applicant under this Agreement. The payment of GST is in addition to any other consideration payable by the Applicant for a taxable supply.
85. If as a result of: (a) any legislation becoming applicable to the subject matter of this Agreement; or (b) any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration; the Supplier becomes liable to pay any tax, duty, excise or levy in respect of the amounts received from the Applicant, then the Applicant must pay the Supplier these additional amounts on demand.
86. The interest rate on any outstanding debts is a fixed rate of 15 percent per annum.
87. All payments required to be made by the Applicant under this Agreement will be made free of any set off, or counterclaim and without deduction or withholding.
88. Any amount due to the Supplier from time to time may be deducted from any monies which may be or may become payable to the Applicant by the Supplier.
Limitations and exclusions of liability
89. With the exception of Consumer Guarantees, the Supplier excludes: (a) any term, condition or warranty that may otherwise be implied into this Agreement;
(b) any liability for loss or damage incurred as a result of or in connection with the negligence of the Supplier; and (c) any liability for Consequential Loss.
90. Subject to clause 91, the liability of the Supplier in respect of any breach of or failure to comply with any Consumer Guarantee is limited to the following: (a) In the case of Goods, to: (i) the replacement of the Goods or the supply of equivalent Goods; (ii) the repair of the Goods; (iii) the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or (iv) the payment of the cost of having the Goods repaired. (b) In the case of services, to: (i) the supplying of the services again; or (ii) the payment of the cost of having the services supplied again.
91. The liability of the Supplier in respect of a breach of or a failure to comply with a Consumer Guarantee will not be limited in the way set out in clause 90 if:
(a) the goods or services supplied are goods or services 'of a kind ordinarily acquired for personal, domestic or household use or consumption', as that expression is used in section 64A of the Australian Consumer Law;
(b) it is not 'fair or reasonable' for the Supplier to rely on such limitation in accordance with section 64A(3) of the Australian Consumer Law; or
(c) the relevant Consumer Guarantee is a guarantee pursuant to sections 51, 52 or 53 of the Australian Consumer Law.
92. In this Agreement: (a) Australian Consumer Law means schedule 2 of the Competition and Consumer Act 2010 (Cth) and any equivalent state or territory legislation; and (b) Consumer Guarantee means a right or guarantee the Applicant may have under the Australian Consumer Law or other rights in relation to the supply of goods or services (such as terms implied into a contract) that cannot lawfully be excluded.
Appointment of Administrators
93. Upon request the Applicant must provide to the Supplier a copy of its latest financial statements.
94. Nothing in this Agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any goods and/or services pursuant to this Agreement of all or any of the provisions the Competition and Consumer Act 2010 or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.
Provision of general facilities
The Applicant must ensure that unrestricted free access to toilets, waste bins and other peripherals is provided on site to the Supplier and its contractors.
95. If any provision of this Agreement is not enforceable in accordance with its terms, other provisions which are self sustaining are, and continue to be, enforceable in accordance with their terms.
96. If any part of this Agreement is invalid or unenforceable, that part is deleted and the remainder of the Agreement remains effective.
97. The Applicant agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of the Supplier at any time by written notice to the Applicant.
98. Any proposed variation to these Terms and Conditions by the Applicant must be requested in writing. The Supplier may refuse any such request without providing reasons either orally or in writing.
99. Variations requested by the Applicant will only be binding upon the Supplier if they are accepted in writing.
100. This Agreement constitutes the entire agreement between the parties relating in any way to its subject matter. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this Agreement are merged in this Agreement and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this Agreement or constitutes any collateral agreement, warranty or understanding.
101. In circumstances where there is a pre existing written credit agreement (Original Agreement) between the Applicant and the Supplier, these terms and this Agreement will constitute a variation of the Original Agreement whereby the terms of the Original Agreement are deleted and replaced with the terms herein.
102. The Applicant agrees to the terms of the Privacy Act 1988 authorisation contained in this document.