Seller
RA Cosmetics Pty Ltd (ABN- 40 146 108 107)
Buyer
Any person, firm, or corporation who requests, orders, or buys Goods from the Seller
Contract
These terms and conditions:
a. Constitute a contract between the Seller and the Buyer, which prevail over any other terms, and conditions that may be inconsistent or contrary to those contained in this document.
b. Constitute a contract at the Time of receipt of Electronic Communications by the Seller if transmitted by Electronic Means, or by written acknowledgement from the Seller if the Buyer wishes to buy Goods verbally or by means of a Document. Apply to the exclusion of all other agreements and prior representations, unless
c. subsequently evidenced in writing by the Seller and the Buyer, and is the whole agreement between the Seller and the Buyer.
d. Excludes all other terms and conditions (and terms or conditions, which the Buyer purports to apply under any, purchase order, order confirmation, specification, or other document). No terms or conditions endorsed on, delivered with, or contained in the Buyer's
e. purchase order, order confirmation, specification, or other document forms part of the Contract because of any reference to such document in the Contract. Apply to all sales and to any variation. Any representation about the Goods has
f. no effect unless each party agrees in writing and a director of the Seller signs that agreement. The Buyer has not relied on any statement, promise, or representation made, or given by or on behalf of the Seller, which is not set out in the Contract.
g. Each request, order, or acceptance for Goods by the Buyer is an offer by the Buyer to buy the Goods subject to these terms and conditions. The Buyer shall ensure that the specifications of any request or order are complete and accurate. The Seller does not accept any request or order placed by the Buyer until the Seller
h. acknowledges in writing, or until the Seller delivers the Goods to the Buyer. The Contract is a security agreement between the Seller and the Buyer, creating,
i. providing for, and giving rise to security interest, as defined by the Personal Property Securities Act 2009. The transaction is a commercial consignment. By the Buyer’s offer to buy the Goods and the Seller’s acceptance by writing or
j. Delivery of the Goods, the Buyer is bound by these terms and conditions, adopting and accepting its contents, unless it gives written notice to the Seller within 24 hours of its intention not to be bound, and immediately returns the Goods to the Seller at its own cost.
Coverage General Terms
Unless otherwise stated in writing by the Seller, these terms and conditions apply to the provision or supply of the Goods by the Seller, its employees, servants, agents and sub- contractors to the Buyer where the:
a. Buyer places an order or request for the Goods, which either contain no terms and conditions of supply, or contains terms and conditions identical to those contained in this document, and
b. Seller accepts such an order or request
Goods
The range of products known as Eye öf Hörus Mascara™
Business Day
A day, other than Saturday or Sunday, during which banks are open for general banking business in Victoria Australia whose laws apply in the construction of this Contract
Description
All samples, drawings, descriptions, specifications and advertising issued in the Seller's catalogues or brochures show an approximate idea of the Goods described and do not form part of the Contract and this is not a sale by sample.
Delivery
1. Any dates specified by the Seller for delivery of Goods are estimates only and ought to occur in a reasonable time.
2. The Seller is not liable for any direct, indirect, or consequential loss. Without limitation, this includes, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss, costs, damages, charges or expenses caused directly or indirectly by any delay in the Delivery of Goods (even if caused by the Seller's negligence), nor does any delay entitle the Buyer to terminate or rescind the Contract.
3. If for any reason, the Buyer fails to accept Delivery of Goods when they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate payment, instructions, documents, licences, or authorisations:
a. Risk in the Goods passes to the Buyer (including for loss or damage caused by the Seller's negligence);
b. The Goods are deemed to have been delivered, and
c. The Seller may store the Goods until delivery with the Buyer becoming liable for all related costs and expenses, which includes storage, and insurance.
4. The Buyer shall provide at its expense adequate and appropriate equipment and manual labour to load or unload the Goods.
5. If the Seller delivers a quantity of Goods that are less than the quantity specified, or in a damaged state, the Buyer cannot object to, or reject the Goods unless the Seller receives a written claim for the shortfall within 7 days from the date of delivery. If the Seller accepts the Buyer’s written claim, the Buyer will pay for such goods at the pro rata rate.
6. The Seller may deliver the Goods by separate instalments and can issue separate invoices payable in accordance with the provisions of the Contract.
7. Each instalment is a separate Contract. No cancellation or termination of any one Contract for an instalment entitles the Buyer to repudiate or cancel any other Contract or instalment.
8. Delivery under this provision gives rise to an account and inventory.
9. Upon the delivery of Goods, a security interest for the value of the Goods attaches to the collateral immediately, at the time of delivery. This security interest, if registered by the Seller constitutes a "purchase money security interest."
Non Delivery
1. The quantity of any consignment of Goods as recorded by the Seller on despatch from the Seller's place of business is conclusive evidence of the quantity received by the Buyer on Delivery unless the Buyer can provide conclusive evidence proving the contrary.
2. The Seller is not liable for non-delivery of any Goods (even if caused by the Seller's negligence) unless the Seller receives a written notice of the shortfall within 7 days from the date when the Goods would in the ordinary course of events have been received.
3. Any liability of the Seller for non-delivery of the Goods is limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata rate against any invoice raised and paid for such Goods.
Risk & Title
1. The Goods are at the risk of the Buyer from the time of delivery. Where the Buyer has requested special delivery arrangements, risk for the Goods passes to the Buyer upon the Goods leaving the Seller’s premises or other facilities.
2. Regardless of any credit granted to, or anything set out in these terms and conditions, the Seller retains full legal and beneficial ownership and title in, and to all Goods delivered to the Buyer, until the Buyer has fully paid all invoices or orders. Until ownership of the Goods passes to the Buyer, the Buyer will:
a. Hold the Goods as the Seller's bailee on a fiduciary basis;
b. Store the Goods (at no cost to the Seller) separately from all other goods of, or held by the Buyer for any third party so they remain readily identifiable as the Seller's property;
c. Allow the Seller, its agents, employees or representatives to enter and have access to all premises in which the Buyer holds or stores the Goods either for storage or sale to re-take possession of the Goods;
d. Not destroy, deface, or obscure any identifying mark or packaging on, or relating to the Goods, and
e. Maintain the Goods in satisfactory condition and keep them insured on behalf of the Seller for their full replacement value against all risks.
3. The Buyer may resell the Goods before ownership has passed to it, only on these conditions:
a. Any sale is effected in the ordinary course of the Buyer's business at full market value;
b. Any such sale is a sale of the Seller's property on the Buyer's own behalf and the Buyer deals as principal when making such a sale;
c. Any proceeds received by the Buyer from the re-sale of the Goods will be held by the Buyer as trustee for the Seller to the extent of the unpaid invoices, and
d. Where the proceeds of sale are less than the amount owing by the Buyer to the Seller, such proceeds will be applied in part satisfaction of the invoice price or amount outstanding until all money owing for all Goods is fully paid.
4. The Buyer's right to possession of the Goods terminates instantly if the Buyer is subject to any:
a. Sequestration order, or makes an arrangement or composition with creditors, or takes the benefit of any statutory provision for the relief of insolvent debtors, convenes any creditors’ meeting, or enters any form of liquidation. This extends to the appointment of a receiver, manager, administrator over any part of its undertaking; filing documents with the court to appoint an administrator, or filing a notice of intention to appoint an administrator by the Buyer, its directors, or by a qualifying floating charge holder. This liability extends to where a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order for the Buyer, or any proceedings are commenced relating to the Buyer’s insolvency; or
b. Enforcement or execution (legal or equitable) over any of its property and where the Buyer fails to observe or perform any obligations under the Contract or any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of the Corporations Act, or the Buyer ceases to trade; or
c. The Buyer encumbers or in any way, charges any of the Goods.
5. The Seller can recover payment for the Goods even though ownership of any of the Goods has not passed from the Seller.
6. The Buyer grants the Seller, its agents, employees, or representatives an irrevocable licence to enter at any time, any premises where the Goods are, or may be stored to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
Where the Seller cannot determine whether any Goods are the goods for which the Buyer's right to possession has terminated, the Seller is deemed to have sold all goods of the kind to the Buyer in the order in which they were invoiced to the Buyer. On termination of the Contract, however caused, the Seller's (but not the Buyer's) rights contained in this condition remain in effect.
Relationship of Parties
The Seller is not acting as partner, joint venture party, employee, servant, agent, contractor or sub-contractor of either the Buyer
‘at a distance’
The order or request for the Goods are provided without the parties being simultaneously present
‘by electronic means’
The order or request for the Goods are sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means
‘at the individual request of a Recipient of Services’
The order or request for the Goods are provided through the transmission of data on individual request
Electronic Communication
A communication of information in the form of:
1. Data, text or images by means of guided and/or unguided electromagnetic energy; or
2. Speech by means of guided and/or unguided electromagnetic energy, where the speech is processed at its destination by an automated voice recognition system
Document
In addition to any document in writing, any drawing, map, plan, diagram, design, picture, or other image, tape, disk or other device or record embodying information in any form. A reference to writing or written includes faxes but not e-mail, or any communication transmitted by Electronic Means.
Time of dispatch of Electronic Communications
If an electronic communication enters a single information system outside the control of the originator, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the dispatch of the electronic communication occurs when it enters that information system.
Time of receipt of Electronic Communication
1. If the addressee of an electronic communication has designated an information system for receiving electronic communications, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the time of receipt of the electronic communication is the time when the electronic communication enters that information system.
2. If the addressee of an electronic communication has not designated an information system for receiving electronic communication, then, unless otherwise agreed between the originator and the addressee of the electronic communication, the time of receipt of the electronic communication is the time when the electronic communication comes to the attention of the addressee.
Assignment
The Buyer cannot assign the benefit of the rights under this Contract
CISG
Convention on Contracts for the International Sale of Goods
Defined Words
For convenience, the first letters of words and expressions defined in this Contract are in capital letters. The absence of a capital letter does not alone imply that the word or phrase has a different meaning from that given by its definition.
Governing Law
The laws of Victoria govern these terms, conditions and Contract, and the Courts of Victoria Australia will hear, determine, and enforce proceedings to protect those rights, liabilities, or obligations. This Contract expressly excludes the application of the CISG.
Headings
Headings are for reference only, and do not affect the interpretation of these terms, conditions, and Contract.
Plural & Gender
Unless inconsistent with the subject matter or context, words importing one gender include the other gender and words importing the singular number include the plural number and vice versa. A person includes an individual, body corporate, partnership, and government.
Successors & Assignees
The expression "Seller" and "Buyer" includes the respective parties and the respective trustees, executors, administrators or successors in title. This clause does not mean the Buyer can assign any right under this Contract.
Payment
1. Subject to condition (c), payment for Goods is payable in Australian Dollars.
2. Payment for the Goods does not occur until the Seller receives cleared funds.
3. All payments payable to the Seller under the Contract become due immediately on its termination despite any other provision.
4. The Buyer must nominate referees and guarantors (that shall be acceptable to the Seller) if the Buyer seeks a credit account with the Seller and before the Seller may approve credit. The Buyer authorises the Seller (its servants and agents) to make inquiries and verify the information given to the Seller by the Buyer is accurate and that, the Buyer can satisfy its commitments under these terms and conditions with the Seller.
5. The Seller can decide not to give any credit or further credit until the Buyer satisfies credit requirement and can refer the following information to a credit-reporting agency to obtain a consumer credit report and for the credit-reporting agency to create, or maintain a credit information file about the information:
a. Identity- name, sex, address (and prior two addresses), date of birth, name of employer, and drivers licence number;
b. The application for credit or commercial credit that the Buyer applied for credit and the amount;
c. The Seller is, or may become a credit provider;
d. Debt repayments that are overdue by more than 60 days, and where debt collection has started;
e. Advice that debt repayments are no longer overdue for any listed default;
f.In the Seller’s opinion the Buyer has committed a serious credit infringement (i.e., fraudulently, or shown an intention not to comply with credit obligations);
g. Dishonoured cheques drawn for $100 or more, or dishonoured more than once;
h. The credit provided by the Seller has been paid or discharged;
i. This information is available before, during, or after the provision of credit. The Seller can give certain information to a credit-reporting agency so it can:
1. Obtain the Buyer’s information from a business that provides information about commercial credit worthiness to assess the application for consumer credit;
2. Obtain a consumer credit report containing the Buyer’s information from a credit-reporting agency to assess the application for commercial credit;
3. Exchange information with the credit provider, or in a consumer credit report issued by a credit-reporting agency to assess the credit application, notifies other credit providers of any default, trade information with other credit providers on the status of a debt the Buyer is in default with other credit providers, and assesses credit worthiness. The information exchanged can include anything about the Buyer’s credit worthiness, credit standing, credit history or credit capacity that credit providers can exchange under the Privacy Act;
4. Obtain from a credit-reporting agency, a consumer credit report containing the Buyer’s information to assess whether to accept any person as guarantor for credit applied for by, or provided to, the Buyer;
5. Seek from a bank or any other financial institution all credit information to determine if it will provide any credit;
6. Give to any current guarantor, or whom the Buyer indicated is considering becoming a guarantor, a credit report containing the Buyer’s information so a prospective guarantor can decide whether to act as a guarantor or to keep any existing guarantor informed about the guarantee. The information disclosed could include anything about credit worthiness, standing, history, or capacity that credit providers can disclose under the Privacy Act, including a credit report.
1. At any time, the Seller can withdraw any credit facilities extended to the Buyer if it does not receive payment or where other acts or omissions of the Buyer are objectionable to the Seller.
2. The Buyer will make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.
3. If the Buyer fails to pay any amount on the due date for payment, the Buyer shall pay interest to the Seller. The interest is payable on such sum from the due date for payment at the annual rate of 5% above the rate set periodically under the Penalty Interest Rates Act 1983 accruing daily until full payment. The Buyer shall pay the Seller’s costs, expenses of, and incidental to the recovery of any overdue invoice, including any bank and legal fees.
4. If the Buyer is a corporation, or an association, the directors and officers are personally liable to pay all invoices and interest. Each director or officer of the Buyer guarantees payment for all money owing to the Seller and indemnifies the Seller for the Buyer’s failure to pay any amount on the due date for payment and for loss or damage caused by the Buyer that prejudices the Seller. Each director, or officer of the Buyer jointly and severally provide an indemnity and a charge, for these purposes, as beneficial owner over all freehold and leasehold interests in land or property both real and personal held, or acquired, both during and after the Contract. Calculation of duty on any charge that secures a claim on land or property is in accordance with the Duties Act 2000 (Vic) (as amended) on the amount owing and interest as at the date, which the charge is effected or stamped. The duty is payable by the Buyer and personally by each director, or officer of the Buyer. The amount owing to the Seller on any invoice continues to accrue interest whilst the invoice remains unpaid and is not limited to the stamped (or unstamped) charge amount.
5. All present and after-acquired commercial property and consumer property of the Buyer, and related proceeds, upon attachment, constitute collateral for the complete and proper discharge of the obligations of the Buyer under the Contract, including payment of funds owing to the Seller. The Buyer acknowledges that it has full and transferable rights in the collateral property. If the Buyer is a corporation, or an association, the present and after-acquired commercial property and consumer property of its directors and officers is collateral in accordance with this provision.
6. Where any act or omission results in a failure of the Buyer to abide by its obligations under this Contract, a security interest for the value of the Goods attaches to the collateral immediately, at the time of the act or omission. This security interest, if registered by the Seller constitutes a" purchase money security interest."
Price
1. Unless otherwise agreed by the Seller and the Buyer in writing the price of the Goods is that specified by the Seller on price lists, or other documents.
2. Except as otherwise stated in writing by the Seller the prices are GST exclusive.
3. Where the price specifically includes GST, it is calculated upon the rate ruling at the date of the quotation and any variation at the time of completing the sale of the Goods to the Buyer is at the expense of the Buyer.
Price Variation
Subject to these terms and conditions, the Price is as quoted in writing by the Seller, or varied due to a change in the Buyer’s Specifications. If a Price is not quoted then it is in accordance with the Seller’s current price list. Verbal quotations are, subject to written confirmation.
The Seller reserves the right without notice to alter the Price of the Goods whether or not the Seller has received a deposit or part payment. The Seller can invoice the Buyer for any extra amount where the costs to the Seller have altered due to circumstances beyond its control.
Cancellation
To the extent permitted by law, the Buyer cannot without the Seller’s written consent, cancel orders, or requests for Goods. The cancellation of any order can only occur on terms, which indemnify the Seller against all loss.
Buyer’s Specifications
Any changes to any specifications at the Buyers’ request, either, at the time of placing the order or afterwards will only be accepted at the Seller’s discretion. Such changes will only take effect when agreed in writing by the Seller and which can result in a Price Variation
Lien
In addition to any lien to which the Seller is entitled by statute or common law; the Seller, will in the event of the Buyer’s insolvency, bankruptcy or winding up, be entitled to a general lien on all property whatsoever owned by the Buyer in the Seller’s possession that the time. Such lien covers the unpaid price of any Goods supplied by the Seller to the Buyer.
Force Majeure
The Buyer releases the Seller from all and any liability in relation to, or occurring out of any failure or transaction in performance of its obligation due in part or in whole to any cause whatsoever beyond the Seller’s control.
Notices
All notices will be in writing, and may be hand delivered, mailed, postage pre-paid, addressed to the postal address of the Seller, or the Buyer. Any such notice, demand, or account is deemed to have been received two Business Days after dispatch if sent by mail and on the next Business Day if delivered by hand or facsimile transmission
Voidability
The Buyer accepts these terms and conditions are subject to any rights or obligations arising under any legislation. This Contract cannot operate to override any rights and obligations created by the Australian Competition and Consumer Act. All implied conditions and warranties (statutory or otherwise) are excluded from this Contract insofar as they are capable of being excluded by agreement. Any terms or conditions that are void, voidable or repugnant to any Act, then this Contract is read as if that term or condition were deleted and the balance of this Contract remains enforceable
Quality
1. Where the Seller is not the manufacturer of the Goods, the Seller will seek to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller.
2. Subject to these terms and conditions, the Seller warrants for 12 months from the date of Delivery, the Goods will be:
a. Of acceptable quality within the meaning of the Australian Consumer Law;
b. Fit for all the purposes for which goods of that kind are commonly supplied;
c. Reasonably fit for any particular purpose for which the Goods were purchased if the Buyer had made known that purpose to the Seller in writing and the Seller has confirmed in writing that, it is reasonable for the Buyer to rely on the skill and judgement of the Seller.
3. The Seller is not liable for a breach of any warranty in condition (b) unless the:
a. Buyer gives written notice of the defect to the Seller, and, if the defect is a result of damage in transit to the carrier, within 7 days of the time when the Buyer discovers or ought to have discovered the defect; and
b. Seller is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked by the Seller) returns such Goods to the Seller's place of business for the examination.
4. The Seller is not liable for a breach of any warranty in condition (b) if the:
a. Buyer makes any further use of such Goods after giving notice; or
b. Defect arises because the Buyer failed to follow the Seller's oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the Goods or (if there are none) good trade practice; or
lic. Buyer alters or repairs such Goods without the written consent of the Seller.
5. Subject to conditions (c) and (d), if any Goods do not conform to the warranties in condition (b), the Seller can repair, or replace such Goods (or the defective part), or refund the price of such Goods at the pro rata Contract rate. This is on the proviso that, if the Seller so requests, the Buyer will return the Goods or the defective part of such Goods to the Seller.
6. If the Seller complies with condition (e), it has no further liability for a breach of warranties in condition (b).
7. Any Goods replaced belong to the Seller and any repaired or replacement Goods are guaranteed on these terms and conditions for the unexpired portion of the 12-month period.
8. Sale and supply of the Goods to the Buyer from the Seller will transfer only such title as the Seller has.
9. The Buyer acknowledges that it was informed by the Seller of any encumbrances known to the Seller, and not known to the Buyer, at or before the Buyer offered to buy the Goods.
Limitation of Liability
1. Subject to these terms and conditions, these terms set out the Seller’s liability for any:
a. Breach of these terms and conditions;
b. Use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
c. Representation, statement, tort, or omission including negligence arising under the Contract
2. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by law) are, to the fullest extent permitted by law, excluded from the Contract.
3. Nothing in these terms and conditions excludes or limits the liability of the Seller for:
a. Death or personal injury caused by the Seller's negligence; or
b. Any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
c. Fraud or fraudulent misrepresentation
4. Subject to condition (b) and condition (c):
a. The Seller's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract is limited to the Contract price; and
b. The Seller is not liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of, or in connection with the Contract.
