Southern Cross Industrial Supplies
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1. OUTLINE

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1.1Currency: These Terms and Conditions apply to the supply of all Goods and Services by us to you from the date that you accept these Terms and Conditions.

1.2Acceptance: You accept these Terms and Conditions when:

1.2.1 you submit an Order;

1.2.2 you accept delivery of, or any part of, Goods pursuant to an Order; or

1.2.1 you make Payment, or partial Payment, for any Goods and Services supplied by us.

2. QUOTES AND ORDERS

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2.1Requesting a Quote: You may request a Quote from us relating to the potential supply of Goods and Services.

2.2Providing a Quote: We may provide to you a Quote relating to the potential supply of Goods and Services, which may include the price and quantity of the Goods and Services proposed to be supplied by us and other relevant details as necessary.

2.3Placing an Order: If our Quote is acceptable to you, you may place an Order for each supply of Goods and Services, subject to clause 2.4.

2.4Subject to acceptance: All Orders are subject to our review and acceptance, which we may withhold in our absolute discretion and is subject to clause 2.5.

2.5Delay in placing an Order: If an Order is not placed with us within 30 days of the date of the Quote, the details provided to you in the Quote may be subject to further written confirmation by us in our absolute discretion.

2.6Additional conditions: Unless otherwise agreed by us in writing, we will not be bound by any conditions added by you in an Order (express or implied).

3. PRICE

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3.1Price: Unless otherwise agreed to in writing by us or by our authorised representative, subject to this clause 3, the price charged and payable for the Goods and Services shall be the price in Australian dollars at the date we accept the Order (less any applicable discount in effect at that time), together with any applicable taxes, charges and delivery costs in relation to the Goods and Services.

3.2Variation of price: Prices contained in any Quote or Order for the supply of Goods or Services is based on the cost prevailing and the specification supplied at the time of the Quote or Order. We reserve the right to vary the price if:

3.2.1 there is any movement in the cost of supplying the Goods or Services specified in your Order; or

3.2.2 if the Goods or Services specified in your Order are varied from the Goods or Services specified in our Quote.

3.3Changes to price: All prices quoted are subject to alteration and we will provide you reasonable notice of any such price alteration. In the event of a pricing error or change in pricing on our website we will contact you and give you an opportunity to cancel the relevant Order within a reasonable time.

4. PAYMENT – ORDERS NOT PLACED ON WEBSITE

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4.1Invoice on delivery: Unless otherwise agreed in writing, we will issue you an Invoice upon delivery of the Goods or Services specified in your Order accepted by us.

4.2Payment: All Payments shall be made in full within 30 days from the date of the Invoice.

4.3Payment method: All Payments are to be made to us in cash, by direct credit to the bank account nominated by us, by credit or by cheque or as otherwise agreed by us in writing.

4.4Payment in installments: We may at our discretion as agreed in writing accept Payments in installments upon such terms as we see fit.

4.5Revocation of credit: We reserve the right to revoke at any time any credit extended to you because of your failure to make any Payment when due or for any other reason.

4.6Suspension of Order: If as a consequence of an instruction from you, we delay or suspend an Order or any part of an Order for a period of 60 days or more, we may:

4.6.1 request the payment in full for all work in progress relating to the relevant Order at the time of suspension; and

4.6.2 alter the price for the uncompleted portion of the relevant Order.

4.7Costs of enforcement: We may recover from you any costs we incur in the collection of Payment of any Invoice.

4.8No set off: You may not set off against any Payment, at law or in equity, any claims which you may have against us.

5. PAYMENT – ORDERS PLACED ON WEBSITE

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5.1Payment to be made at time of Order: Unless otherwise agreed in writing, you must pay for all Goods in full being purchased on our website (including GST and any delivery costs) at the time of placing an Order.

5.2Payment method: All Payments are to be made by Visa or Mastercard only. You agreed to submit to us information as may be reasonably requested by us in order for us to authorise or verify your identity and credit card details.

5.3Dispute over Payment: We may exercise all lawful remedies available to us if a dispute arises in respect of the credit card details you provide to us at the time of making an Order on our website. If your credit card payment fails or is not accepted, we reserve the right to delay or cancel delivery of any and all Orders.

5.4Costs of enforcement: We may recover from you any costs we incur in the collection of Payment including reasonable legal costs.

5.5Set off: We may set off, at law or in equity, any refund due to you, against any and all sums owed by you to us.

6. DEFAULT INTEREST

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We may at our discretion in the event of your failure to make a Payment in accordance with clause 4 (Payment) charge default interest at the rate of 4% per annum plus the interest rate set by the Reserve Bank of Australia payable on demand.

7. CANCELLATION

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7.1Cancellation by you: You may not cancel an Order, or any part of it, without our written consent which may be withheld in our absolute discretion. We will endeavour to accommodate your request to cancel an Order if the Goods, the subject of the Order, have not been shipped at the time of the cancellation request.

7.2Payment of costs incurred: Without prejudice to our right to refuse consent for you to cancel of an Order under clause 7.1, as a condition of giving such consent we may require that you pay all costs reasonably incurred by us for in relation to the cancelled Order or the cancelled part of the Order plus a re-stocking fee as advised at the time of cancellation.

7.3Cancellation by us: We may in writing cancel an Order or delivery of an Order without liability to you (save as required by relevant laws) if:

7.3.1 we reasonably form the opinion that you are insolvent or at material risk of insolvency;

7.3.2 you fail to pay any amount for the Goods or Services on the due date; or

7.3.3 we reasonably form the opinion that supplying Goods to you may have a negative impact upon our business or commercial reputation or image.

8. DELIVERY AND RISK

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8.1Delivery: We, by our nominated carrier or otherwise, will deliver the Goods to the place nominated by you or as otherwise agreed.

8.2Time of delivery: Delivery shall take place upon delivery of the Goods to you, your agent or nominee or to a carrier commissioned on your behalf as applicable at the place specified by you (whichever is earlier) or as otherwise agreed.

8.3Cost of delivery: We will charge you the cost of delivering the Goods to you.

8.4Installments: We reserve the right to make deliveries in installments and these Terms and Conditions shall be severable as to such installments.

8.5No liability for delay: We will use reasonable endeavours to deliver the Goods to you by the date and to the place specified by you. Without limiting clause 10 (Exclusions and Limitations), we shall not be liable for late delivery or delay in delivery.

8.6Risk passes on delivery: The risk in the Goods shall pass to you upon placement of the Goods onto the nominated form of transport for delivery to you.

8.7Insurance over Goods: If requested by us, you shall from the delivery date until we have received Payment for all Goods in full, insure the Goods for their full replacement value, and provide to us upon our request evidence of such insurance.

9. DEFECTS AND RETURN OF GOODS

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9.1 This clause 9 is subject to clause 10 (Exclusions and Limitations), clause 11 (Statutory Rights) and any other statutory or legal right whether under these Terms and Conditions or otherwise.

9.2Returns: You may only return the Goods if:

9.2.1 they do not materially comply with the Order;

9.2.2 if permitted by law, including the ACL; or

9.2.3 unless otherwise agreed in writing.

9.3Notification: If you wish to return any Goods delivered to you, you must give to us:

9.3.1 notice within a reasonable time of your receipt of the Goods; and

9.3.2 the original Invoice details.

9.4Replacement or credit: If we accept the return of Goods from you the Goods must be returned in their original packaging and we will at our option either:

9.4.1 replace the returned Goods; or

9.4.2 give a credit or a refund for such Goods.

9.5Costs to return Goods: Costs relating to the return of Goods under this clause 9 are payable:

9.5.1 if the defect is solely due to us, by us and must be transported by our nominated carrier; or

9.5.2 otherwise, by you.

9.6Payment for other Goods: You may not withhold any payment due to us in respect of any other Goods pending the resolution of a claim for a defect.

9.7Non-payment of account: we will not accept notifications under this clause 9 in the event of your non-payment of an account.

9.8Goods damaged in transit: If the Goods are damaged in the course of being delivered to you:

9.8.1 you must notify us of any claim for Goods damaged in transit within a reasonable time of delivery; and

9.8.2 subject to our acceptance of your claim under this clause 9, we will replace the relevant Goods. You must mark on the relevant consignment note when the Goods are returned that the goods were “Received Damaged”.

10. EXCLUSIONS AND LIMITATIONS

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10.1ACL exception: The exclusions and limitations in this clause 10 are subject to clause 11 (Statutory Rights).

10.2General exclusion of liability: Any liability arising in relation to Goods and Services the subject of your Order or that we supply to you, however arising and whether for consequential loss or otherwise, and including any liability arising by virtue of any representation or warranty, whether express or implied by law, is hereby excluded to the fullest extent permitted by law.

10.3Limitations: No warranty is given and we will not be liable for:

10.3.1 alterations to Goods for which we are not responsible;

10.3.2 damage or failure caused by unusual, non-recommended, negligent or improper use or application of the Goods; or

10.3.3 loss caused by any factors beyond our control.

10.4Indirect loss: We will not be liable for any special, indirect, consequential or economic loss or damage or loss of profits (in contract or tort or arising from any other cause of action) suffered by you or any other person resulting from any act or omission by us (including breach, termination or non-observance of the terms of an Order or agreement which incorporates these Terms and Conditions).

10.5Total liability: Our total liability for breach of these Terms and Conditions or breach of our contractual obligations or duties at law or in equity (however arising) is limited at our option to:

In the case of Goods

10.5.1 the replacement of the Goods or the supply of equivalent goods;

10.5.2 the repair or rectification of the Goods;

10.5.3 the payment of the cost of replacing the Goods or of acquiring equivalent goods; or

10.5.4 the payment of the cost of the repair or rectification of the Goods.

In the case of Services

10.5.5 the supply of the Services again.

10.6No reliance: You acknowledge and agree that, subject to your rights at law:

10.6.1 you have and will make your own assessment of the fitness for purpose and suitability of any Goods supplied to you;

10.6.2 you do not and will not rely on our skill or judgment nor that of any person by whom any prior negotiations or arrangements in relation to the acquisition of any Goods were conducted or have been or will be made; and

10.6.3 you have not made known to us or a manufacturer of goods (directly or via any person and whether expressly or impliedly) the particular purpose for which you acquire the Goods.

10.7Third party work: If we obtain goods from a third party in order to carry out your instructions or complete an Order:

10.7.1 we will not be liable for any breach of these Terms and Conditions if that breach is as a result or is connected with the supply by a third party of such goods;

10.7.2 we acquire such goods as agent for you not as principal and will have no liability to you in relation to the supply of these goods;

10.7.3 any claim by you in relation to the supply of such goods or services must be made directly against that third party; and

10.7.4 you must pay for such goods, and we will give you notice of any such third party charges as applicable.

11. STATUTORY RIGHTS

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11.1ACL rights: In circumstances where you are acquiring Goods from us as a ‘consumer’ for the purposes of (and as defined in section 3 of Schedule 2 of) the ACL, we acknowledge and agree that certain statutory guarantees and rights shall apply to you as provided by relevant laws but subject to these Terms and Conditions as applicable and where permitted by relevant laws.

11.2No restriction: Nothing in these Terms and Conditions excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified, which may include the ACL and the Sale of Goods Act (NSW) 1923 and corresponding provisions and relevant laws of State or Territory legislation containing implied terms and/or statutory guarantees which operate to protect the purchasers of goods and services in various circumstances.

11.3Unfair contract: If section 23 of the ACL applies to any provisions in these Terms and Conditions, any such provision(s) shall be void to the extent they are unfair within the meaning of section 24 of the ACL.

12. SECURITY INTEREST AND TITLE

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12.1Security Agreement: This clause 12 sets out the Security Agreement between you and us.

12.2Creation of PMSI: You (Grantor) grant to us (Secured Party) a Purchase Money Security Interest (PMSI) in the Goods (Collateral) as security for all or part of the Payment for the Goods.

12.3Attachment: Our security interest attaches to the Collateral by virtue of your possession of the Goods as bailee under clause 12.7.

12.4Registration: We may, without notice, apply to register a financing statement with respect to the PMSI described in this clause12.

12.5Identification: Until full title in the Goods has passed to you, you will ensure that the Goods are identifiable and distinguishable:

12.5.1 from any other goods that may be in your possession; and

12.5.2 as to each particular Invoice of Goods.

12.6Title: We will retain absolute title over the Goods until:

12.6.1 we have received Payment in full in respect of the Goods;

12.6.2 we register a financing statement as described in clause 12.4; or

12.6.3 you sell the Goods in the manner prescribed under clause 12.10.

12.7Possession as bailee: After delivery of the Goods, until the full Payment has been made you shall possess the Goods as bailee only.

12.8Seizure: Until Payment in full for the Goods has been received by us, we may, without notice, seize the Goods if:

12.8.1 a Default Event occurs; or

12.8.2 you are in breach of these Terms and Conditions.

12.9Entry into premises: For the purposes of carrying out seizure under clause 12.8, we may without notice, enter your premises and seek any all remedies provided under Chapter 4 of the PPSA, and any other remedies provided at law or in equity or otherwise.

12.10Permitted use and sale: You may only sell all or any of the Goods in respect of which full Payment has not been received to a third party if:

12.10.1 we have not exercised our right to seize the Goods under clause 12.8;

12.10.2 the sale is a bona fide transaction at market value in the ordinary course of business; and

12.10.3 all proceeds of sale of those Goods is:

A immediately paid to us; or

B held on trust for us in a separate account, payable immediately on demand.

12.11Waiver of notice: Notice requirements under sections 95, 118, 121, 130, 132 and 135 of the PPSA shall not apply and not place any obligations on us in your favour.

12.12Financing statement: You agree to waive your right to receive from us a copy of any financing statement, financing change statement or verification statement that is registered, issued or received at any time in relation to these Terms and Conditions and this Security Agreement.

12.13Change of name: You shall immediately notify us in writing of any change of name.

12.14Acknowledgement: You acknowledge receipt of a copy or due notice of these Terms and Conditions and this Security Agreement.

13. GST

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13.1Prices exclusive of GST: Unless otherwise agreed or specified, prices with respect to any taxable supply are inclusive of GST.

13.2GST payable in addition: You must pay to us all GST in addition to any other amounts payable by you to us, which will be payable by you when required to pay for the Goods and Services.

13.3Issue of tax invoice: We will issue a tax invoice for any taxable supply to you, which will enable you, if permitted by the GST Law, to claim a credit for GST paid by you.

13.4Third party supplies: If GST is payable for a taxable supply by a third party, we will request that party to provide you with a tax invoice.

13.5Imported goods: prices for imported goods are to be converted into Australian dollars based on the Reserve Bank Exchange Rate on the date that such goods are ordered.

14. COMPLIANCE WITH LAWS

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14.1Lawful purpose: You shall ensure that the Goods and Services are used only for lawful purposes and in accordance with any applicable laws.

14.2Indemnity: You agree to indemnify and keep us indemnified in respect of all damages, losses, costs, and expenses (including legal costs) that we may incur as a result of your breach or alleged breach of clause 14.1.

15. DISPUTE RESOLUTION

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15.1No proceedings: a party must not commence court proceedings in respect of a Dispute unless it has complied with this clause 15.

15.2 A party claiming that a Dispute has arisen must notify each other party to the Dispute giving details of the Dispute.

15.3 During the Initial Period after a notice is given under clause 15.2 each Disputant must authorise a representative to use their best efforts, acting in good faith, to resolve the Dispute.

15.4 If the Dispute is not resolved within the Initial Period, a Disputant may terminate the dispute resolution process by giving notice to each other Disputant. After the dispute resolution process has been terminated the Disputant may take any and all steps it deems necessary to resolve the dispute, including commencing proceedings in respect of the Dispute.

15.5 If, in relation to a Dispute, a Disputant (that is not otherwise in breach of any provision of these Terms and Conditions) breaches any provision of clauses 15.1 to 15.4, each other Disputant need not comply with clauses 15.1 to 15.4 in relation to that Dispute.

16. GENERAL

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16.1Termination: If a Default Event occurs, we may, without limiting any other right we have under these Terms and Conditions, terminate any outstanding Order and any contract for the supply of Goods and Services to you.

16.2Binding: These Terms and Conditions shall bind our successors, administrators and permitted assigns and your executors and permitted assigns, or, being a company, its successors, administrators and permitted assigns.

16.3Time of the essence: Time shall be of the essence in relation to any date or period under these Terms and Conditions.

16.4New Terms and Conditions: If we adopt new terms and conditions for the sale of Goods and Services from time to time you will be given written notice if you are a Customer at the relevant time and they will apply to the supply of Goods and Services after you accept such new terms and conditions.

16.5Variation: We may vary these Terms and Conditions by providing you 30 days written notice.

16.6Force Majeure: If a Force Majeure Event occurs, we may:

16.6.1 totally or partially suspend any Order, any part of an Order or any deliveries relating to an Order during any period in which we may be prevented or hindered from delivering by our normal means of supply or delivery due to that Force Majeure Event; and

16.6.2 elect to extend at our discretion the period for performance of an obligation under these Terms and Conditions as is reasonably in all the circumstances.

16.7Severability: Each clause in these Terms and Conditions is severable and if any clause is held to be illegal or unenforceable, then the remaining clauses will remain in full force and effect.

16.8Waiver: No failure, delay, relation or indulgence on our part in exercising any power, right or remedy precludes any other or further exercise of that or any other power, right or remedy.

16.9Governing law: These Terms and Conditions shall be governed by the laws of the State of New South Wales.

17. INTERPRETATION AND DEFINITIONS

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17.1Personal pronouns: Except where the context otherwise provides or requires the terms we, us or our refers to the Company and the terms you or your refers to the Customer.

17.2Defined terms: In these Terms and Conditions, unless otherwise provided, the following terms shall have their meaning as specified:

ACL means the Australian Consumer Law under the Consumer and Competition Act 2010 (Cth) as amended.

Collateral means property that is subject of a security interest.

Company means Southern Cross Industrial Supplies Pty Ltd (ABN 003 799 335).

Customer means any person or entity that places an Order with us and agrees by conduct or by virtue of notice or otherwise to be bound by these Terms and Conditions, including any related company, related party, officer and authorised person of the relevant person.

Default Event means any one of the following events:

(a) you fail to make any payment when due, whether for the Goods or otherwise;

(b) you commence Winding Up;

(c) you appoint a receiver;

(d) you become insolvent, bankrupt or commit an act of bankruptcy;

(e) proceedings are commenced or an application is made for the appointment of any persons listed in items (b) to (d) above; or

(f) a mortgagee or their agent enters into possession of your assets.

Disputant means a party to a Dispute.

Dispute means a dispute arising out of or related to these Terms and Conditions.

Force Majeure Event means circumstances beyond our reasonable control shall include, but not be limited to compliance with any laws, regulations, orders, acts, instructions or priority request of any government, or any department or agency, civil or military authority, acts of God, acts of the public enemy, your acts or omissions, fires, floods, strikes, lockouts, embargoes, wars, labour or material shortages, riots, insurrections, defaults of our suppliers or subcontractors, delays in transportation, or loss or damage to Goods in transit.

Goods means goods sold by the Company from time to time, including welding equipment, consumables and industrial gases.

GST means a goods and services tax, or a similar value added tax, levied or imposed by the GST Law.

GST Law has the meaning given to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Grantor means the person who has the interest in property to which a security interest is attached.

Initial Period means the 14 day period after a notice of a Dispute is given under clause 15.2.

Invoice unless otherwise agreed means the invoice issued upon the shipping of the Goods specified in the Order accepted by us.

Order means an order for Goods in writing received by us.

Payment means payment of any amount relating to Goods in accordance with these Terms and Conditions.

PPSA means the Personal Property Securities Act 2009 (Cth) as amended.

PMSI means a purchase money security interest as defined by section 14 of the PPSA.

Quote means a quotation by us for the supply of particular Goods containing details as specified in clause 2.2.

Secured Party means a person who holds the benefit of a security interest.

Security Agreement means the security agreement set out in clause 12 (Security Interest and Title).

Services means repair services undertaken by us in respect of the Goods.

Winding Up means commencing to be wound up, or suffering a provisional liquidator, liquidator, official manager or any other administrator of the affairs of insolvent companies to be appointed.

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