STANDARD TERMS AND CONDITIONS – TRADING
”Agreement” means any agreement entered into for the provision of Goods or Services by Seller to Buyer
”Buyer” means the person, firm or corporation, jointly and severally if there is more than one, acquiring
Goods or Services
”Goods” means goods supplied by Seller to Buyer
”Intellectual Property” means all copyright, patents, trade marks, designs and Specifications and all modifications, improvements and enhancements (whether registrable or not) owned by or licensed to Seller in respect of the Goods or Services
”Seller” means RockSmith Pty. Ltd
”Services” means services supplied by Seller to Buyer in connection with the Goods
”Specifications” means all technical documentation, drawings, schematics, technical data, process control information, tests and test reports engineering design records, samples, models, prototypes, equipment and formulae owned by or licensed to Seller in respect of the Goods or Services
”Terms” means these Standard Terms and Conditions.
2. BASIS OF AGREEMENT
2.1 Unless otherwise agreed by Seller in writing, these Terms apply exclusively to every Agreement for the sale of Goods or Services by Seller to Buyer.
2.2 Any written quotation provided by Seller to Buyer concerning the proposed supply of Goods or Services is valid for 30 days, is an invitation to treat only and is subject to Buyer offering to enter into an Agreement and accepting these Terms.
2.3 The Terms may include additional terms in Seller’s quotation. The Agreement is accepted by Seller when Seller confirms its acceptance of an order from Buyer in writing or electronic means or provides Buyer with Goods or Services.
2.4 Seller in its absolute discretion may refuse to accept any order.
2.5 Seller reserves the right to change the Specifications of the Goods at any time without notice and without liability.
3.1 Unless otherwise specified, prices quoted:
(a) include domestic packaging and crating charges, and transportation to the specified FOB point.
(b) exclude any GST and any federal, state, or local taxes, assessments, or import duties applicable to the sale, ownership, production, transportation or use of Goods sold.
(c) exclude any additional transportation charges incurred in accordance with clause 6.
(d) exclude any personal property taxes or similar taxes or assessments against the Goods or on account of materials segregated for Buyer and being held by Seller at Buyer’s request.
3.2 In addition to payment of the price of Goods or Services, Buyer must pay any additional amounts referred to in clauses 3.1(b) to (d).
3.3 If Buyer requests any variation to the Agreement, Seller may increase the price to account for the variation.
3.4 If there is any change in Seller’s costs incurred in relation to the Goods or Services, Seller may vary its price to take account of such change, by notifying Buyer.
4.1 Unless otherwise agreed in writing, payment for the Goods or Services must be made net within 30 days from the date of Seller’s invoice.
4.2 Seller reserves the right to require payment in full immediately on delivery of the Goods or completion of the Services.
4.3 Seller reserves the right to require payment of a deposit prior to provision of the Goods or Services.
4.4 Payment by cheque is not deemed made until the proceeds of the cheque have cleared.
4.5 Seller reserves the right at any time to alter or suspend credit, or to change credit terms provided herein, when it is sole opinion the financial condition of Buyer so warrants. In such case, in addition to any other remedies herein or by law provided, cash payment or satisfactory security from Buyer may be required by Seller before shipment, or Seller may, at its option, defer further shipments to Buyer until Buyer re-establishes satisfactory credit, cancel the unshipped portion of the order without any liability for failure to ship, or make shipments to Buyer on a prepayment or COD basis.
4.6 Payments made by trade acceptances, notes, securities, post-dated cheques, etc., are unacceptable unless first approved in writing by Seller.
5. PAYMENT DEFAULT
5.1 If Buyer defaults in payment by the due date of any amount payable to Seller, then all money which would become payable by Buyer to Seller at a later date on any account, becomes immediately due and payable without the requirement of any notice to Buyer, and Seller may, without prejudice to any other remedy available to it:
(a) charge Buyer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 plus 4% for the period from the due date until the date of payment in full
(b) charge Buyer for, and Buyer must indemnify Seller from, all costs and expenses (including without limitation all legal costs and expenses on an indemnity basis) incurred by it resulting from the default or in taking action to enforce compliance with the Terms or to recover any Goods or to recover any sum due
(c) cease or suspend for such period as Seller thinks fit, supply of any further Goods or Services to Buyer
(d) by written notice to Buyer, terminate any Agreement with Buyer so far as unperformed by Seller without effect on Seller’s accrued rights under any Agreement.
5.2 Clauses 5.1(c) and (d) may also be relied upon, at Seller’s option, where Buyer becomes bankrupt or insolvent or enters into any scheme of arrangement with its creditors, or has a liquidator or similar functionary appointed in respect of its assets.
6. SHIPMENTS AND PACKAGING
6.1 Any period or date for delivery of Goods or provision of Services specified by Seller is intended as an estimate only and is not a contractual commitment. Seller will use its reasonable endeavours to meet any estimated dates for delivery of Goods or completion of Services.
6.2 Unless otherwise agreed in writing, all shipments shall be FOB Seller’s plant, and packaging will be accomplished in accordance with Seller’s standard commercial practice for domestic shipments.
6.3 If adequate forwarding instructions are not received from Buyer within thirty (30) days before the shipment date:
(a) Seller may ship goods to Buyer’s place of business, at Buyer’s cost, by such means as Seller selects or
(b) Seller may charge Buyer storage charges, payable monthly on demand, until such time as the Goods are able to be delivered.
7. RETENTION OF TITLE
7.1 Until Seller receives full payment in cleared funds for all Goods and Services supplied by it to Buyer, as well as all other amounts owing to Seller by Buyer:
(a) title and property in all Goods remains vested in Seller and does not pass to Buyer
(b) Buyer must hold the Goods as fiduciary bailee and agent for Seller
(c) Buyer must keep the Goods separate from its own goods and retain Seller’s packaging and labelling
(d) Buyer is required to hold the proceeds of any sale of the Goods on trust for Seller in a separate account however failure to do so will not affect Buyer’s obligation to deal with the proceeds as trustee
(e) Seller may without notice enter any premises where it suspects the Goods may be and remove them, and for this purpose Buyer irrevocably licenses Seller to enter such premises and also indemnifies Seller from and against all costs, claims, demands or actions by any party arising from such action.
8. RISK AND INSURANCE
8.1 Unless otherwise agreed in writing, the risk in the Goods and all insurance responsibility for theft, damage or otherwise passes to Buyer immediately upon FOB delivery being effected. Buyer accepts all risk of loss or damage thereto, upon delivery of goods by Seller to a carrier, shipper, forwarding agent, transporter, or Government mail box or post office, whether selected by Buyer or Seller. In no event shall Seller be responsible for any goods after delivery to such shipping means.
8.2 Buyer assumes all risk and liability for loss, damage or injury to persons or to property of Buyer or third parties, arising out of the use or possession of any of the Goods sold by Seller.
9. INTELLECTUAL PROPERTY
9.1 Buyer acknowledges that it has no proprietary right or interest in the Intellectual Property.
9.2 Buyer must not register or record or attempt to register or record anywhere in the world the Intellectual Property or anything similar to it or aid or abet anyone else to do so.
9.3 Any Intellectual Property provided to Buyer by Seller remains Seller’s exclusive property and must be returned to Seller on demand and must not be copied or communicated to any third party without Seller’s express written consent.
10.1 Buyer acknowledges and agrees that:
(a) it has not relied on any service involving skill and judgement, or on any advice, recommendation, information or assistance provided by Seller in relation to the Goods or Services or their use or application
(b) it has the sole responsibility of satisfying itself that the Goods or Services are suitable for Buyer’s use
(c) any description of the Goods provided in marketing materials, a quotation or invoice is given by way of identification only and does not constitute a contract of sale by description
(d) it assumes all responsibility for conformance of the Goods with all laws, rules, regulations and ordinances of any governmental or quasi-governmental agency applicable.