The Makeup Technicians Pty Ltd (ABN 74 122 675 834) Conditions of Sale
In these conditions:
(a) `Seller’ means The Makeup Technicians Pty. Ltd. ABN 74 122 675 834 of 20 Oxford Square, Darlinghurst NSW 2010 which is the seller of the goods.
(b) `Buyer’ means the buyer of the goods specified in the seller’s quotation, or in the buyer’s order for the goods.
(c) `Goods’ means the products and, if any, services, classes, lessons or workshops specified in Buyer’s orders or Seller’s order acknowledgments from time to time.
(d) Nothing in these conditions shall be read or applied so as to exclude, restrict or modify or have the effect of excluding, restricting or modifying any condition, warranty, guarantee, right or remedy implied by law (including the Competition and Consumer Act 2010) and which by law cannot be excluded, restricted or modified.
These conditions (which shall only be waived in writing signed by the seller) prevail over all conditions of the buyer’s order to the extent of any inconsistency.
3. Terms of sale
The goods and all other products and services sold by the seller are sold on these terms and conditions.
4. Seller’s quotations
Unless previously withdrawn, seller’s quotations are open for acceptance within the period stated in them or, when no period is so stated, within 60 days only after its date. The seller reserves the right to refuse any order based on this quotation within 7 days after the receipt of the order.
The cost of any special packing and packing materials used in relation to the goods are at the buyer’s expense notwithstanding that such cost may have been omitted from any quotation.
The buyer waives any claim for shortage of any goods delivered if a claim in respect for short delivery has not been lodged with seller within seven (7) days from the date of receipt of goods by the buyer.
7. Specifications, etc.
(a) All specifications, drawings, and particulars of weights and dimensions submitted to the buyer are approximate only and any deviation from any of these things does not vitiate any contract with the seller or form grounds for any claim against the seller.
(b) Except as referred to in Clause 13.1 herein, the descriptions, illustrations and performances contained in catalogues, price lists and other advertising matter do not form part of the contract of sale of the goods or of the description applied to the goods.
(c) Where specifications, drawings or other particulars are supplied by the buyer, the seller’s price is made on estimates of quantities required. If there are any adjustments in quantities above or below the quantities estimated by seller and set out in a quotation, then any such increase or decrease are to be adjusted on a unit rate basis according to unit prices set out in the quotation.
Any performance figures given by the seller are estimates only. The seller is under no liability for damages for failure of the goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.
9. Consumer Sales
This clause applies only in respect of consumer sales under the Australia Consumer Law. The goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be acceptable quality and the failure does not amount to a major failure.
(a) The delivery times made known to the buyer are estimates only and the seller is not be liable for late delivery or non-delivery.
(b) The seller is not be liable for any loss, damage or delay occasioned to the buyer or its customers arising from late or non-delivery or late installation of the goods.
(c) The seller may at its option deliver the goods to the buyer in any number of instalments unless there is an agreement in writing between the parties to the effect that the buyer will not take delivery by instalments.
(d) If the seller delivers any of the goods by instalments, and any one of those instalments is defective for any reason:
(i) it is not a repudiation of the contract of sale formed by these conditions; and
(ii) the defective instalment is a severable breach that gives rise only to a claim for compensation.
11. Passing of risk
Risk in the goods passes to the buyer upon the earlier of:
(a) actual or constructive delivery of the goods to the buyer; or
(b) collection of the goods from the seller or any bailee or agent of the seller by the buyer’s agent, carrier or courier.
12. Loss or damage in transit
(a) The seller is not responsible to the buyer or any person claiming through the buyer for any loss or damage to goods in transit caused by any event of any kind by any person (whether or not the seller is legally responsible for the person who caused or contributed to that loss or damage).
(b) The seller must provide the buyer with such assistance as may be necessary to press claims on carriers so long as the buyer:
(i) has notified the seller and the carriers in writing immediately after loss or damage is discovered on receipt of goods; and
(ii) lodges a claim for compensation on the carrier within three (3) days of the date of receipt of the goods.
13.1 The seller’s liability for goods is limited to making good any defects by repairing the defects or at the seller’s option by replacement, within a period as specified in Seller’s catalogues or other product literature for specified cases or not exceeding twelve (12) calendar months after the goods have been dispatched (whichever is the lesser period) so long as:
(a) defects have arisen solely from faulty materials or workmanship;
(b) the damage does not arise from:
(i) improper adjustment, calibration or operation by the buyer;
(ii) the use of accessories including consumables, hardware, or software which were not manufactured by or approved in writing by the seller;
(iii) any contamination or leakages caused or induced by the buyer;
(iv) any modifications of the goods which were not authorised in writing by the seller;
(v) any misuse of the goods by the buyer or anyone for whom the buyer has legal responsibility (including a minor);
(vi) any use or operation of the goods outside of the physical, electrical or environmental specifications of the goods;
(vii) inadequate or incorrect site preparation; and
(viii) inadequate or improper maintenance of the goods.
(ix) fair wear and tear of the product in an environment in respect of which the Seller has informed the Buyer in catalogues or other product literature that the period of usefulness of the product is likely to be shorter than twelve 12 months.
(c) the goods have not received maltreatment, inattention or interference;
(d) accessories of any kind used by the buyer are manufactured by or approved by the seller; and
(e) the defective goods are promptly returned free of cost to the seller.
13.2 The seller is not liable for and the buyer releases the seller from any claims in respect of faulty or defective design or formulation of any goods supplied unless such design has been wholly prepared by the seller and the responsibility for any claim has been specifically accepted by the seller in writing. In any event the seller’s liability under this paragraph is limited strictly to the replacement of defective parts in accordance with Clause 13.1 of these conditions.
13.3 Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the goods or arising out of the seller’s negligence or in any way whatsoever.
14. Seller’s liability
14.1 The seller’s liability for a breach of a condition or warranty implied by Pt 3-2 Div 1 of the Australian Consumer Law is limited to:
(a) in the case of goods, any one or more of the following:
(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;
(iv) the payment of the cost of having the goods repaired; or
(b) in the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
14.2 The seller’s liability under s 274 of the Australian Consumer Law is expressly limited to a liability to pay to the purchaser an amount equal to:
(a) the cost of replacing the goods;
(b) the cost of obtaining equivalent goods; or
(c) the cost of having the goods repaired, whichever is the lowest amount.
(a) Unless otherwise stated all prices quoted by seller are inclusive of Goods and Services Tax (GST).
(b) Prices quoted are those ruling at the date of issue of quotation.
(c) If the seller makes any alterations to the price of the goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the buyer’s account.
16. Payment and Interest
(a) The purchase price in relation to goods plus GST is payable net payment of the price of the goods must be made in accordance with terms stated on the Seller’s quotation or invoice.
(b) Interest shall apply and be payable by the Buyer to the Seller in respect of any late payment of the purchase price or part thereof at the rate of 15% per annum, calculated daily.
17. Rights in relation to goods
The seller reserves the following rights in relation to the goods until all accounts owed by the buyer to the seller are fully paid:
(a) ownership of the goods;
(b) to enter the buyer’s premises (or the premises of any associated company or agent where the goods are located) without liability for trespass or any resulting damage and retake possession of the goods; and
(c) to keep or resell the goods including any goods repossessed pursuant to 17(b) above;
If the goods are resold, or goods manufactured using the goods are sold, by the buyer, the buyer shall hold such part of the proceeds of any such sale as represents the invoice price of the goods sold or used in the manufacture of the goods sold in a separate identifiable account as the beneficial property of the seller and shall pay such amount to the seller upon request. Notwithstanding the provisions above the seller shall be entitled to maintain an action against the buyer for the purchase price and the risk of the goods shall pass to the buyer upon delivery.
18. Buyer’s property
Any property of the buyer under the seller’s possession, custody or control is completely at the buyer’s risk as regards loss or damage caused to the property or by it.
The seller reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the buyer within fourteen days of a request by the seller for such instructions. The parties agree that the seller may charge for storage from the first day after the seller requests the buyer to provide delivery instructions.
20. Returned goods
(a) The seller will not be under any duty to accept goods returned by the buyer and will do so only on terms to be agreed in writing in each individual case.
(b) If the seller agrees to accept returned goods from the buyer under para (a) of this clause, the buyer must return the goods to the seller at the seller’s place of business referred to at the head of these conditions.
21. Goods sold
All goods to be supplied by the seller to the buyer are as described on the purchase order agreed by the seller and the buyer and the description on such purchase order modified as so agreed prevails over all other descriptions including any specification or enquiry of the buyer.
No order may be cancelled except with consent in writing and on terms which will indemnify the seller against all losses. For services, classes, workshops and similar, no refund will be offered if the buyer fails to attend at the agreed date and time.
The buyer indemnifies on a continuing basis on a full indemnity basis the seller from and against any liability, loss, expense or demand for or arising from any false, misleading, deceptive or misdescriptive representation or statement made by the buyer in respect of the goods to any person. This indemnity survives termination of this agreement by either party for any reason.
24. Exclusion of representations and arrangements
Except as referred to in Clause 13.1herein, these terms and conditions supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the goods or any part of the goods including, but without limiting the generality of the foregoing, those relating to the performance of the goods or any part of the goods or the results that ought to be expected from using the goods.
25. No waiver
The failure of any party to enforce the provisions of this agreement or to exercise any rights expressed in this agreement is not to be a waiver of such provisions or rights and does not affect the enforcement of this agreement.
26. Force Majeure
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of the seller, the seller is unable to perform in whole or in part any obligation under this agreement the seller is relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and is not liable to the buyer in respect of such inability.
27. Buyer acknowledgement
The buyer acknowledges that the above provisions of these Conditions of Sale are reasonable and reflected in the price and the buyer accepts the risks associated with these Conditions of Sale.
28. Place of contract
(a) The contract for sale of the goods is made in the state of New South Wales, Australia.
(b) The parties submit all disputes arising between them to the courts of such state and any court competent to hear appeals from those courts of first instance.
29. Personal Property Securities Act 2009 (PPSA)
(a) This agreement is a security agreement.
(b) The interest of the Seller in the Good and all proceeds from the sale of the Goods by the Buyer to a third party is a security interest.
(c) The Buyer consents to the Seller registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonable required by the Seller to facilitate registration.
(d) Until such time as title in the Goods has passed to the Buyer as contemplated by clause 17 of this agreement, the Buyer agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create, a security interest over, the Goods in favour of the Buyer or any third party, the parties agree that this clause will not prohibit the Buyer from selling the Goods in the ordinary course of business.
(e) The Buyer waives its rights to receive any notice under PPSA (including notice of verification statement) unless the notice is required by that Act and cannot be excluded.
(f) The Seller and Buyer agree that this agreement and all related information and document(s) are confidential (Confidential Information) and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by this agreement or required by law. The Seller and Buyer agree that the Seller will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.
(g) Unless the Goods are used predominantly for personal, domestic or household purposes, the Seller and the Buyer agree each of the following requirements or rights under the PPSA do not apply to the enforcement of the Seller’s security interest in the Goods or of this agreement.
(i) any requirement for the seller to give the Buyer a notice of removal of accession;
(ii) any requirement for the Seller to give the Buyer a notice of the Seller’s proposed disposal of the goods;
(iii) any requirement for the Seller to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties;
(iv) any requirement for the Seller to give the Buyer a statement of account if the Seller does not dispose of the Goods;
(v) any right the Buyer has to redeem the Goods before the Seller exercises a right of disposal; and
(vi) any right the Buyer has to reinstate this agreement before the Seller exercises a right of disposal of the Goods.
(h) Expressions defined in the PPSA have the same meaning when used in this agreement.