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ELLIOTT AUSTRALIA GENERAL TERMS AND CONDITIONS OF SALE
Effective August 2021
These General Terms and Conditions of Sale of Elliott Australia Pty Ltd (ACN 009 799 768) (Elliott Australia) (Terms and Conditions) comprise the following Parts: Part A – Freight and Minimum Order Value Requirements; Part B – Terms and Conditions of Supply; and Part C – General.
PART A: FREIGHT AND MINIMUM ORDER VALUE REQUIREMENTS
- Unless the parties agree otherwise in writing, Elliott Australia will supply all orders from you (the Customer) free into store (FIS) for all orders via the website and/or purchase orders (purchase orders) over the FIS Value published in the current Price List of Elliott Australia from time to time. The FIS Value shall be published in the current Price List and is subject to change from time to time. For all purchase orders under the FIS Value, a freight charge will apply or the Customer shall nominate their preferred freight company, account number and freight method clearly on the purchase order.
- Elliott Australia shall nominate the freight company and freight type for FIS purchase orders. The freight company engaged by Elliott Australia is subject to change from time to time. If a purchase order is to be sent via an alternative freight company or method, the Customer shall nominate their preferred freight company, account number and freight method clearly on the purchase order.
- A Minimum Order Value applies to Customer purchase orders. The Minimum Order Value shall be published in the current Price List and is subject to change from time to time
PART B: TERMS AND CONDITIONS OF SUPPLY
- Any Goods provided by Elliott Australia to the Customer(s) will be provided in accordance with these terms and conditions set out in this Part C and read in conjuction with Parts B and D of this document (Terms and Conditions of Supply).
- Publication of any materials by Elliott Australia (including any promotional or marketing material) shall not constitute an offer by Elliott Australia to the Customer to provide the Goods.
- The Customer may request Elliott Australia to provide Goods to the Customer. The Customer may make such request (among other available means) by issuing a purchase order to Elliott Australia or other written request for the Goods (Request). The Customer’s Request will amount to an offer by the Customer to purchase the Goods from Elliott Australia in accordance with these Terms and Conditions of Supply and Elliott Australia may accept such offer by giving written notice of acceptance to the Customer.
- A binding agreement between Elliott Australia and the Customer (each a party and together the parties) for delivery of the Goods on these Terms and Conditions of Supply (as may be varied from time to time) (Agreement) will arise when: (a) the parties have signed the a written agreement for the supply of the Goods; (b) Elliott Australia has given written notice to the Customer of the acceptance of the Customer’s Request in accordance with the preceding paragraph; or (c) the Customer makes a payment to Elliott Australia for the Goods, which is accepted by Elliott Australia.
- Subject to clause 21, no other terms and conditions (including any terms and conditions which the Customer provides to Elliott Australia or seeks to incorporate into this Agreement) will be binding upon Elliott Australia or form part of this Agreement unless Elliott Australia gives its prior written consent. This shall apply irrespective of whether such terms and conditions have been communicated by the Customer to Elliott Australia in any purchase order or correspondence.
- The term of an Agreement continues until the earlier of: (a) termination of the Agreement by the parties; or (b) the day after which any warranty period for any Goods delivered under this agreement has expired.
- The Customer must pay the charges for the relevant Goods (Charges) to Elliott Australia at the rate and within the payment terms as agreed between the parties in writing. Unless Elliott Australia agrees otherwise in writing, the Customer must make payments to Elliott Australia by electronic funds transfer into such bank account as Elliott Australia may nominate from time to time. Elliott Australia may set off any amount owing to the Customer against any amounts payable by the Customer to Elliott Australia under these Terms and Conditions of Supply.
- If the Customer disputes the whole or any portion of the Charges claimed in any of Elliott Australia’s invoices for goods submitted to the Customer, the Customer must: (a) pay the portion of the amount stated in the invoice which is not in dispute; and (b) the Customer must notify Elliott Australia within 7 days of the receipt of that invoice by written notice of the reasons the Customer dispute the remainder of that invoice.
- Where any supply made by Elliott Australia is subject to any form of goods and services tax payable under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST), the Customer will upon receipt of a valid tax invoice pay, in addition to any other consideration payable Elliott Australia, an amount equal to the GST on that supply.
- Nothing in these Terms and Conditions of Supply excludes, restricts or modifies any condition, warranty, right or liability implied in these Terms and Conditions of Supply or protected by law to the extent that such exclusion, restriction or modification would render these Terms and Conditions of Supply or any provision of these Terms and Conditions of Supply void, illegal or unenforceable. Subject to that, any condition, warranty, right or liability which would otherwise be implied in these Terms and Conditions of Supply or protected by law is excluded.
- Subject the provisions of the Returns Policy and clause 15, Elliott Australia’s liability in relation to the performance or otherwise of Elliott Australia obligations under these Terms and Conditions of Supply (including in respect of any, liabilities, losses, damage, damages, penalties, fines, taxes, judgments, costs and legal and other expenses, whether arising in tort (including negligence) or otherwise) will not exceed the Charges for the relevant Goods. Elliott Australia will not be liable to the Customer for any loss of profits or any consequential or indirect loss of any nature whatsoever, including loss of use, revenue or any loss of business, loss of production, contract or goodwill.
- If Elliott Australia fails to comply with any statutory guarantee which by law may not be excluded, then to the extent the law permits Elliott Australia, Elliott Australia liability for any breach of such guarantee shall be limited, at the election of Elliott Australia, to providing the Customer with any one or more of the following remedies: (a) supplying the Goods again; (b) providing equivalent Goods; (c) payment of the cost of having the Goods supplied again; or (iv) payment of the cost of having equivalent Goods supplied.
- The Customer shall at all times indemnify and hold harmless Elliott Australia and each of Elliott Australia officers, employees and agents (those indemnified) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by: (a) a breach by the Customer of the Customer obligations under these Terms and Conditions of Supply; or (b) any wilful, unlawful or negligent act, error or omission of the Customer or your officers, employees or agents.
- In respect of any claim between the parties under or in connection with these Terms and Conditions of Supply, the parties agree that to the maximum extent permitted by law, the operations of Part 4 of the Civil Liability Act 2003 (Qld) and of any laws having a similar effect in the Commonwealth and other States and Territories of Australia are excluded and have no application or effect insofar as any of them would apportion liability to Elliott Australia which would not have been so apportioned but for such laws.
- The Applicant shall be liable for Charges for all Goods supplied on the order of any employee or agent of the Applicant, whether or not such order was authorised by the Applicant.
- In the event that the Applicant sells or otherwise disposes of the Applicant’s business, the Applicant shall immediately notify Elliott Australia in writing of such sale or disposal. The Applicant shall not be responsible for any goods ordered after the date the Supplier receives such written notification.
PART C: GENERAL
- These Trading Terms: (a) are governed by the law in force in Queensland and each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland; (b) together with the Applicant’s Application for Credit and the Elliott Australia Credit and Return Policy as varied from time to time constitute the entire agreement between the parties in relation to the Goods and supersede all other terms and conditions issued by the Customer otherwise than in accordance with these Terms and Conditions; and (c) do not create a relationship of principal and agent, joint venture, partnership or fiduciary relationship between the parties.
- Subject to clause 24, no waiver, alteration or modification of these Trading Terms shall be binding on Elliott Australia unless made in writing and agreed to by a duly authorised officer of Elliott Australia.
- Elliott Australia reserves the right to vary at any time, these Terms and Conditions which apply to any orders for goods by the Applicant which have not yet been invoiced at the time of the announced effective date of the change.
- If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from these Terms and Conditions without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.
- In these Terms and Conditions, unless the context clearly indicates otherwise: (a) including and includes are not words of limitation; (b) Business Day means any day that is not a Saturday, Sunday, gazetted public holiday or bank holiday in the State or Territory in which the Goods are delivered; (c) a reference to a clause is a reference to a clause of these Terms and Conditions; (d) a reference to a corporation includes its successors and permitted assigns; (e) a word that is derived from a defined word has a corresponding meaning; (f) the singular includes the plural and vice-versa; and (g) words importing one gender include all other genders.