DEFINITIONS AND INTERPRETATION AND GENERAL
Authorised Representative means the Chief Executive Officer, the Financial Controller, any Director, and any General Manager of the Seller. Buyer means the person or company that purchases goods from YHI under a contract of sale;
Conditions means these terms and conditions. Consideration has the meaning that applies in respect of GST legislation. Contract of Sale means the contract made by YHI’s acceptance of the Buyer’s purchase order that incorporates these Conditions. Defect has the meaning given to that term by Part VA of the Trade Practices Act 1974 (Cth) (as amended). GST has the meaning that applies in respect of GST legislation. GST Amount means in relation to a Taxable Supply the amount of GST payable in respect of that Taxable Supply. GST legislation has the meaning that applies by virtue of the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Input Tax Credit has the meaning given by the GST legislation and a reference to an Input Tax Credit entitlement of a party includes an input Tax Credit for an acquisition made by that party but to which another member of the same GST Group is entitled under the GST Law. Insolvency is taken to occur when the following events occur: Except for the purposes of a solvent reconstruction of amalgamation previously approved by YHI in writing:
An application or an order is made, proceedings are commenced, a resolution is passed or proposed in a notice of meeting or an application to a court or other steps are taken for the winding up, dissolution, official management or administration of the Buyer; or The Buyer enters into any arrangement, compromise or composition with or assignment for the benefit of its creditors or any class of them. The Buyer ceases, suspends or threatens to cease or suspend the conduct of its business or disposes of or threatens to dispose of its assets other than in the ordinary course of its business. The Buyer is, or is deemed under any applicable legislation to be, unable to pay its debts when they fall due (other than as a result of the failure to pay a debt or a claim the subject of a good faith dispute) or stops or suspends or threatens to stop or suspend the payment of all or any class of its debts. A receiver, a receiver and manager, administrative receiver or similar officer is appointed to the Buyer or any part of its property or a distress, attachment or other form of execution is levied or enforced, (in the case of a Buyer who is a natural person) the Buyer commits an act of bankruptcy.
Intellectual property means YHI’s rights, title and interest in copyright, patents, Trade Marks, designs and similar industrial, commercial and intellectual property used in connection with its goods.
Seller means YHI
YHI means YHI (Australia) Pty Ltd (ABN 92 058 091 375)
Taxable Supply has the meaning given by the GST Legislation excluding the reference to section 84.5 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Interpretation and General
Headings are for convenience only and do not denote an interpretation.
The Conditions set out the agreement between YHI and the Buyer with respect to sales of YHI’s goods and services even if contradicted by the Buyer’s order forms or other notations.
The contract comprises all the terms and conditions made between the parties. All other terms and conditions are expressly excluded unless they are in writing signed by both parties.
These Conditions take priority over prior arrangements either written or oral.
YHI may make changes to these Conditions at any time including after a purchase order is made by the Buyer or acceptance by YHI of a purchase order
CONTRACT OF SALE
All orders for goods by the Buyer shall be deemed to be an offer by the Buyer to purchase goods pursuant to these Conditions. No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by an Authorised Representative. The Buyer will place an order with YHI in the form of a purchase order or in such other manner as YHI may prescribe from time to time (purchase order), which may be accepted by YHI. No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of an Authorised Representative on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
YHI will confirm its acceptance of the purchase order by notice in writing to the Buyer or in such other manner as YHI may determine. A Contract of Sale will arise by YHI’s acceptance of the Buyer’s purchase order. Acceptance of delivery of the goods shall be deemed conclusive evidence of the Buyer’s acceptance of these conditions. Any Variations to these Conditions shall be inapplicable unless agreed in writing by an Authorised Representative.
Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
The price shall be the Seller’s quoted price. Unless otherwise agreed in writing by an Authorised Representative, all prices are given by the Seller on an ex-works basis excluding carriage, packing, insurance and any applicable tax or duty. Where the Seller agrees to deliver the Goods otherwise than where agreed under the Contract, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance. The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the goods to reflect any increase in the cost to the Seller which is due to any factor beyond control of the Seller. The Buyer must pay YHI for the goods that it orders at the then current list price set by YHI less any discount as determined by YHI from time to time from that list price. YHI may from time to time specify a recommended retail price for goods. These prices are recommended prices only and there is no obligation to comply with the recommendation. YHI may vary the prices without notice.
If GST is payable on a Taxably Supply made under, by reference to or in connection with this Agreement, the party providing the Consideration for that Taxable Supply must also pay the GST amount as additional Consideration. This clause does not apply to the extent that the Consideration for the Taxable Supply is expressly stated to be GST inclusive. Any inference in the calculation of Consideration under this Agreement to a Cost, expense of other liability incurred by a party, must exclude the amount of any input Tax Credit entitlement of that party in relation to the relevant cost, expense of other liability.
TERMS OF PAYMENT
YHI will invoice the Buyer for the goods sold to it. The Buyer must pay all invoices (without deduction) in cash on delivery; or according to the terms of credit agreed in writing with YHI.
-Credit terms will only be available at YHI’s absolute discretion, upon approval of a written application for this purpose. YHI will require a personal guarantee by a Director of any Buyer Company.
-Where terms of credit are in place, payment of the price shall be due (without any deduction) within 30 days of the date of the invoice unless otherwise agreed in writing by an Authorised Representative. Time for payment shall be of the essence.
-If the Buyer fails to make full payment on the due date or is otherwise in breach of its obligations under the Contract, then without prejudice to any right or remedy available to the Seller, the Seller shall be entitled to cancel the contract or suspend any further deliveries to the Buyer; refuse to make any further supply of goods or services; recover possession of all goods to which it has retained title in which case, YHI, will credit the Buyer with any part of the price paid by the Buyer to YHI in respect of those goods; and appropriate any payment made by the Buyer to such of the goods as the Seller may think fit; and charge the Buyer interest (both before and after any judgment) from day to day on the amount unpaid, at the rate of 1% per month until payment in full is made.
Any dates quoted for delivery of the goods are approximate only and the Seller shall not be liable for any delay in delivery of the goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by an Authorised Representative in writing. The Seller shall not be liable to the Buyer or be deemed to be in breach of the contract for the sale and purchase of the goods by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Upon the Buyer’s acceptance of a quotation, YHI will seek confirmation of the period of shipment or delivery. If the confirmation shows that any variation has occurred in the expected delivery period, YHI will inform the Buyer and, unless within 7 days of such information being given to the Buyer, the Buyer objects in writing the period of shipment or delivery stipulated will be deemed to be the period for shipment or delivery. If YHI is prevented by circumstances beyond its control from shipping or delivering within the time stipulated in the confirmation, such time will be extended for a reasonable period after such circumstances have ceased to operate and any delay so caused will not be grounds for cancellation by the Buyer or for any claim for damages or compensation by the Buyer.
The goods will be delivered to the Buyer’s premises. The Buyer must pay all delivery charges specified in the invoice for the goods. Delivery will be deemed to have been effected on receipt by YHI’s Authorised Representative of a delivery note signed by an authorised representative of the Buyer. The Buyer is deemed to have inspected the goods immediately upon receiving delivery of the goods. If there is any damage to the goods or shortage in the quality delivered, then the Buyer will immediately notify YHI by making a note and signing the consignment note retained by the carrier of the goods. The Buyer must also provide sufficient evidence to support the allegation of damaged goods and/or a shortage in delivery of the goods. Should the buyer fail to notify YHI of this, the Buyer shall not have any claim against YHI for damage to the goods and/or shortage in the quality delivered or at all.
A clear signature of the recipient or the Buyer’s authorised representative on the Seller’s consignment note shall be deemed to signify receipt of the quantity. If the Buyer fails to advise of damage as set out above, the goods shall be conclusively presumed to be in accordance with the Contract and free from any defect or damage and the Buyer shall be deemed to have accepted the goods. If the goods are not in accordance with the Contract for any reason and the Buyer has duly given the Seller notice thereof as set out above, the Buyer’s sole remedy shall be limited to the Seller making good any alleged defect, shortage in quantity or failure to comply with description by replacing or effecting rectification of such goods at the Seller’s discretion or, if the Seller shall elect, by refunding a proportionate part of the price under the Contract. Where the Buyer rejects any goods, then the Buyer shall have no further rights whatever in respect of the supply to the Buyer of such goods or the failure by the Seller to supply goods which conform to the contract.
Where the Buyer accepts or has been deemed to have accepted any goods, then the Seller shall have no liability whatever to the Buyer in respect of those goods. The Seller shall not be liable to the Buyer for late delivery or short delivery of the goods. Unless agreed to the contrary in writing, YHI reserves the right to make part deliveries of any order and each part delivery will constitute a separate contract for the sale of goods. Failure to make a delivery of the total order will not invalidate the contract as regard other deliveries. Where YHI makes a part delivery, YHI may invoice the Buyer for the goods delivered on each separate delivery; and is not obliged to make a further delivery until any moneys outstanding have been paid.
CLAIMS AND CREDIT
YHI will not accept goods returned for credit unless the Buyer has first obtained from YHI a return authorisation number and an approved claim form is completed in full and any such return will be handled in accordance with YHI’s return of goods for credit procedures (as amended from time to time).
TITLE TO GOODS AND RISK
The risk of loss or damage to the goods will pass to the Buyer on delivery. Title to the goods will remain with YHI until all moneys owing to YHI by the Buyer has been paid in full (whether such money is payable under a specific contract or on any other account whatsoever). Until such time that the Buyer has paid in full all moneys owing to YHI for the goods, the following applies: the Buyer must store the goods in a manner which identifies them as YHI’s goods; the Buyer must hold the goods as bailee for YHI subject to its right to deal with the goods in the ordinary course of the Buyer’s business; the Buyer must indemnify YHI against any claim arising out of the possession, use or disposal of the goods by the Buyer or re-possession or attempted re possession by YHI; and any moneys received by the Buyer as proceeds of the sale of the goods must be held in trust for YHI for the Buyer. The proceeds of those sales must be held in a separate account or otherwise clearly identified in the books and records of the Buyer. If: a payment is not paid in accordance with these Conditions or any other agreement between YHI and the Buyer;
the Buyer commits any other breach of these Conditions or any other agreement between YHI and the Buyer; YHI receives notice of or reasonably believes that a third person may attempt to levy execution against the goods; or
An act of Invsolvency occurs, then YHI may at any time , without notice to the Buyer and without prejudice to any other rights which it may have against the Buyer; terminate a Contract of Sale and the bailment enter upon any premises owned or occupied by the Buyer where YHI reasonably believes the good may be stored and repossess the goods without being liable for any damage caused.
Either party may terminate a Contract of Sale on 14 days written notice to the other party if: the other party fails to pay when due an amount payable under these Conditions; the other party fails to comply with these Conditions and does not remedy that default or breach within 14 days of receiving written notice to do so; or the other party suffers an act of Insolvency. Termination of a Contract of Sale will be without prejudice to any other remedies available to the terminating parties and any rights or obligations of the parties that accrued prior to the time of termination.
All implied conditions and warranties are excluded as permitted by law. YHI will compensate the Buyer for any losses suffered by it as a result of goods having Defect, in accordance with Part VA of the Trade Practices Act.
LIMITATION OF LIABILITY
YHI’s liability for a breach of condition or warranty that cannot be excluded is limited at YHI’s option to: the replacement or repair of the goods; or the supply of equivalent goods; or the cost of replacing or repairing the goods or of acquiring equivalent goods; and to the maximum extent permitted by law .
YHI is not liable for:
any loss or damage to the goods resulting from any act or omission on the part of the Buyer, or the employees, contractors or agents of the Buyer; or any special, consequential, direct or indirect loss or damage incurred by the Buyer in connection with the supply of goods under a Contract of Sale or any act o omission (including negligence) on YHI’s part in relation to the obligations under a Contract of Sale, however caused.
The Buyer indemnifies and holds harmless YHI and its officers, employees, and agents from and against all actions, claims, proceedings or demands which may be brought or made against it or them or any of them in respect of any loss, injury, or damage arising out of any breach of these Conditions by YHI or any negligent act or omission of YHI and from and against all damages, costs and expenses incurred in defending or settling any action, claim, proceedings or demand arising from such breach, act or omission. The Buyer indemnifies YHI and will keep YHI indemnified against any loss claim or damage suffered by YHI from: any statement, representation, undertaking or warranty made by or on behalf of the Buyer, which is not expressly authorized by YHI; any loss or damage caused to the goods after risk in them has passed to the Buyer, or any Breach of these Conditions or any negligent act or omission of the Buyer.
YHI expressly does not accept liability for any goods that are:
Damaged by accident; Fitted to or used on rims or wheels that do not comply with Australian Designs or standards; Used on wheels or rims that are out of alignment, damaged or rusty; Used to carry loads or operate at speeds which are outside the recommended guidelines; Altered, reprocessed or repaired in any way other than by or through YHI, and Fitted or used in breach of YHI’s conditions or use or technical specifications as published from time to time.
The Buyer must not erase, remove or alter any trade marks on the goods/and must use no other trade marks or trade names in relation to the goods. The Buyer must notify YHI immediately if it becomes aware of any infringement or threatened infringement of any of the Intellectual Property. The Buyer will take all practical steps to ensure that YHI’s reputation and goodwill are not damaged.
CREDIT INFORMATION ABOUT BUYER
The Buyer acknowledges and agrees that YHI is permitted to obtain commercial credit information about the Buyer, its directors and officers for purposes associated with analysing the credit worthiness of the Buyer from time to time and when an application for credit with YHI is made by the Buyer.
If YHI decides to recall any of its goods, then YHI will be responsible for the costs of transport, repairs or replacement for the goods recalled.
No failure to exercise and no delay in exercising any right, power or remedy under these Conditions will operate as a waiver. Nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that or any other right, power or remedy.
The laws of New South Wales govern these Conditions.
Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of New South Wales.
If a provision of these Conditions or a right or remedy of a party under these Conditions is invalid or unenforceable in a particular jurisdiction:
It is read down or severed in that Jurisdiction only to the extent of the invalidity or unenforceability, and
It does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions in any jurisdiction.
This clause is not limited by any other provision of these Conditions in relation to severability, invalidity or enforceability.