TERMS OF SALE - Last updated 1st March, 2020
- EXCLUSION OF BUYER'S TERMS
1.1 It is expressly acknowledged and agreed that these terms operate to the exclusion of all and any terms and conditions issued by the Buyer whether before or after the date these conditions of sale come into effect.
- ORDERS AND PERFORMANCE
2.1 Barwill may accept or refuse any order for goods in its absolute discretion and may make its acceptance of an order conditional upon a satisfactory credit assessment of the Buyer.
2.2 Unless otherwise agreed orders must be in writing and either mailed, couriered, faxed or transmitted by EDI (if available) to Barwill. Orders must be made in multiples of standard pack quantities (where available).
2.3 Barwill will use reasonable endeavours to fulfil accepted orders and comply with any requested or estimated date for delivery but time will not be of the essence in this regard and if Barwill' ability to fulfil an accepted order is affected by circumstances or events beyond its control Barwill may:
(a) extend the date for delivery;
(b) with the Buyer's approval, alter the specifications for the goods to allow the substitution of equivalent goods; or
(c) cancel the order without liability for breach.
2.4 Barwill may perform any of the obligations undertaken by it and exercise any rights granted to it under the Contract through any other company which at the relevant time is its holding company or subsidiary or the subsidiary of any such holding company and any act of any such company will for the purposes of the Contract be deemed to be the act of Barwill.
2.5 Barwill' policy is one of constant improvement and therefore changes of specifications and performance data may be made by Barwill without notice and without incurring liability to the Buyer.
3.1 Subject to these terms Barwill warrants to the Buyer that all goods manufactured or supplied by Barwill will be free from defects due to faulty factory materials or workmanship and will comply with any specification for them published by Barwill or agreed in writing.
4.1 Prices charged for goods will be according to a Current Quotation for those goods. Otherwise they will be determined by Barwill by reference to its standard prices in effect at the date of Delivery (whether notified to the Buyer or not and regardless of any prices contained in the order). Barwill will use its best endeavours to notify the Buyer of price changes but bears no liability in this regard.
4.2 Unless specifically indicated, prices in quotations or elsewhere do not include insurance, special packing, delivery or tax.
4.3 Any reference to resale prices contained in Barwill’ standard price lists or other documents (if any) are recommended resale prices only and there is no obligation on the Buyer to comply with these recommendations.
4.5 Prices shown in Barwill' price list are exclusive of goods and services taxes, sales taxes and other indirect taxes unless otherwise stated and such taxes, where applicable, will be charged in accordance with current legislation.
- DELIVERY AND PACKING
5.1 Unless otherwise agreed, goods sold to the Buyer shall be supplied ex Barwill' premises.
5.2 Unless otherwise indicated or agreed, prices include standard packing by Barwill and any special packing will be to the Buyer's account.
5.3 If packing is charged for and is returnable allowance will only be made for packing which has been received back by Barwill in good condition. Ownership of pallets used for Delivery remains with Barwill at all times and the Buyer agrees to pay Barwill for any pallets not returned in good order and condition to Barwill within 14 days of Delivery of the goods.
6.1 Terms of payment by the Buyer will be by net cash in exchange for goods; for Buyers fulfilling Barwill' credit requirements - net cash within 30 days; or otherwise as agreed in writing.
6.2 Barwill will provide an invoice to the Buyer who will pay the invoice in full to Barwill within the time specified above or on the invoice.
6.3 All payments to Barwill will be made without set-off, deduction or counterclaim.
6.4 If the Buyer fails to pay the invoice in full to Barwill when due, Barwill will be entitled (without prejudice to any other right or remedy it may have) to:
(a) cancel or suspend any further delivery to the Buyer under any order; and
(b) charge the Buyer interest on the overdue amount at the rate that would be payable by Barwill to its bankers for overdraft accommodation from the date of invoice to the date of full and final payment (irrespective of whether the date of payment is before or after any judgment or award in respect of the overdue amount).
7.1 Any claim by the Buyer for incorrect orders, shortages, overcharges and the like will only be recognised by Barwill if made in writing and forwarded within 14 days of the date of invoice to Barwill.
7.2 Any claims by the Buyer for goods lost or damaged in transit following Delivery should be made to the relevant carrier or transport authority and unless otherwise agreed Barwill is not responsible for such loss or damage.
7.3 Return of goods to Barwill by the Buyer may only be made if Barwill has agreed to that return and all such returns will be subject to a 15% handling charge with freight costs and risk remaining the responsibility of the Buyer, subject always to clause 8
- INSURANCE, RISK AND PROPERTY
8.1 Unless otherwise agreed, goods are not insured by Barwill.
8.2 The risk of damage, loss or deterioration to any goods will pass to the Buyer either on Delivery or on the expiry of 14 days from the date of notification by Barwill to the Buyer that the goods are ready for collection.
8.3 Notwithstanding that risk in the goods may pass to the Buyer, property in and title to the goods will not pass to the Buyer until those goods and all other amounts owed to Barwill by the Buyer (regardless of any credit period) have been paid for in full and until then:
(a) the Buyer will hold the goods as a fiduciary bailee of Barwill;
(b) the goods must be stored separately and, in a manner, enabling them to be identified and cross-referenced to invoices and the Buyer acknowledges that if it should mix the goods with other products or items such that the goods are no longer separately identifiable then the Buyer and Barwill will be owners in common of the new product;
(c) the Buyer may sell the goods in the ordinary course of its business as agent for Barwill and will hold the proceeds of sale in a separate account and account to Barwill for those proceeds; and
(d) Barwill may require the Buyer to return the goods to it on demand and may enter upon the premises of the Buyer to inspect or repossess the relevant goods.
8.4 The Buyer shall insure the goods against theft or any damage until their price has been paid or until sale - whichever first occurs- and Barwill will be entitled to call for details of the insurance policy. If the Buyer does not insure the goods or fails to supply details of its insurance policy the Buyer will reimburse Barwill for the cost of any insurance which Barwill may reasonably arrange in respect of goods supplied to the Buyer.
9.1 The warranty in clause 3.1 does not apply in respect of defects specifically drawn to the Buyer's attention or defects arising from: incorrect or negligent handling; disregard of operating and/or maintenance instructions; overloading or unsuitable operating conditions; defective civil or building work; lightning, accident; neglect, faulty erection or installation (unless carried out by Barwill); unauthorised repairs or alterations; acts of God or other causes beyond Barwill' control.
9.2 Barwill' liability under clause 3.1 is limited (at Barwill' option) to replacement or repair or payment of the cost of replacement or repair of the relevant goods or repayment of the price where it has been paid. Any claim in respect of a breach of the warranty in clause 3.1 should be made within 12 months of the date of Delivery of the relevant goods.
9.3 Barwill' liability to the Buyer for breach of any implied term not excluded by clause 11.1(c) will be limited (at Barwill' option) to replacement or repair or payment of the cost of replacement or repair of the relevant goods or repayment of the price where it has been paid.
9.4 To the fullest extent permitted by law Barwill will not be liable to the Buyer for loss of profit or other economic loss; direct, indirect or consequential loss; special, general or other damages; or other expenses or costs arising out of any breach of the Contract or any common law duty (including negligence) by Barwill, its agents or employees.
- OTHER ITEMS
10.2 The sale to and purchase by the Buyer of any goods does not confer on the Buyer any licence or right under any copyright, patent, registered design, or trade mark which is the property of Barwill and the Buyer will conform to all reasonable requirements imposed by Barwill with respect to trademarks, or identification marks in respect of the goods.
10.3 Barwill will be entitled to set off against any monies owing to the Buyer amounts owed to Barwill by the buyer under the Contract or on any other account.
11.1 Each party acknowledges and agrees that:
(a) this Condition of Sale (contract) represents the entire agreement between the parties and supersedes all previous agreements;
(b) it has not entered into the Contract in reliance on, or as a result of any statement or conduct of any kind (including without limitation, any representation, warranty, advice or undertaking);
(c) all conditions, warranties or other terms implied by statute or common law are expressly excluded to the fullest extent permitted by law; and
(d) the Contract may only be amended by agreement in writing.
11.2 Nothing in these Conditions of Sale shall entitle the Buyer to any priority of supply of goods as against Barwill' other distributors, agents and customers.
- DEFINITIONS AND INTERPRETATION
In these Conditions of Sale, the following terms have the following meanings unless the context requires otherwise:
- Barwill means Barwill Group Pty Ltd
- 'Buyer' means a person from whom Barwill accepts an order for goods.
- 'Contract' means the agreement constituted by Barwill' acceptance of the Buyer's order and includes these Conditions of Sale.
- 'Current Quotation' means a quotation no older than 28 days at the time the order is received by Barwill.
- 'Delivery' means delivery of any goods to the Buyer or to a carrier arranged by the Buyer or Barwill (at the request of the Buyer).
- 'Tax' means any tax, levy, charge or duty imposed by any governmental entity or authority (including, without limitation, sales tax and customs duty) on or in relation to goods sold to the Buyer (excluding taxes on Barwill' income and capital gains).