1.1 Unless otherwise inconsistent with the context the word ‘person' shall include a corporation
1.2 ‘goods' shall include services.
1.3 Words importing the singular number shall be deemed to include the plural and vice versa.
1.4 Words importing the male gender shall be deemed to include the female and neuter gender and vice versa.
1.5 ‘ Braintree ' shall mean its successors and assigns.
1.6 'customer' shall mean the person named as ‘the Applicant' on the credit application annexed hereto.
2 Offer and Acceptance
2.1 Any quotation made by Braintree is not an offer to sell or to provider goods. Braintree shall not be bound by any order given in pursuance of any quotation until it is accepted in writing. All orders are subject to acceptance by Braintree within thirty (30) days of receipt by Braintree of the order. These terms and conditions shall be deemed to be incorporated into any agreement between Braintree and the customer. Any terms and conditions contained in any order, offer, acceptance or other document of the customer and all representations, statements, terms and conditions and warranties (whether implied by statute or otherwise) not embodied herein are expressly excluded to the fullest extent permitted by law.
2.2 In so far as goods or services supplied by Braintree are not of a kind ordinarily acquired for personal, domestic or household consumption, the liability for breach of a condition or warranty implied into this contract by the Sale of Goods Act or the Trade Practices Act (other than a condition implied by Section 69) is limited:
(a) in the case of goods to any one of the following as determined by Braintree
(i) the refund of the price paid by the customer for the goods or the issue of a credit note for such amount, or
(b) in the case of services to any one of the following as determined by Braintree
3.1 Any date quoted for delivery (‘the quoted date') is an estimate only unless a guarantee shall be given by Braintree in writing providing for liquidated damages for failure to deliver by the quoted date. The customer shall accept and pay for the goods if and when tendered notwithstanding any failure by Braintree to deliver by the quoted date. Written advice to the customer that goods are ready for delivery whether in whole or in part shall constitute tendering and the terms of payment shall apply.
3.2 Braintree shall not be liable to any customer or any other party for direct or indirect or consequential injury, loss or damage whatsoever by reason of any delay in delivery whether the same is due to the negligence of Braintree or any party, strike or any other industrial action be it of Braintree or any other party or any other cause whatsoever.
3.3 Braintree reserves the right to deliver by instalments. If delivery is made by instalments the customer shall not be entitled:
3.4 It is agreed that Braintree shall not be responsible for the delay in delivery caused by or in any way incidental to an act of God, war, fire, breakages of machinery, strikes or arising out of any other unexpected exceptional cause, or any cause beyond reasonable control of Braintree .
3.5 Any quotation containing a provision to supply goods “ex stock” is subject to fulfilment of prior orders at the date of receipt of the customer's order.
4.1 Unless otherwise agreed in writing, payment terms are net cash or other agreed payment method on sale of goods, delivery or invoice to the customer.
4.2 This term as to the payment shall be of the essence of the contract.
5.1 Not withstanding the delivery of the goods or part thereof, the goods remain the sole and absolute property of Braintree full legal and equitable owner until such time as the customer shall have paid Braintree the full price together with the full price of any goods then the subject of any other contract with Braintree .
5.2 The customer acknowledges that he receives possession of and holds goods delivered by Braintree as bailee for Braintree until such time as the full price thereof is paid to Braintree together with the full price of any goods then the subject of any other contract with Braintree .
5.3 Until such time as the customer becomes the owner of the goods, he will,
5.4 (a) Until the goods are paid for in full, Braintree authorises the customer to sell the goods as its agent. However, the customer shall not represent to any third parties that it is acting in any way for Braintree . Braintree will not be bound by any contracts with third parties to which the customer is a party.
(b) The proceeds of any sale of the goods shall be paid into a separate account and held in trust for Braintree . The customer shall account to Braintree from this fund for the full price of the goods.
(c) If the customer is entitled to a period of credit, but if prior to the expiration of the period of credit the goods are sold and the proceeds of sale are received by the customer then the customer shall account to Braintree the price of the goods.
(d) Should the customer die, stop payment or call a meeting of its creditors or become insolvent or subject to the bankruptcy laws, or being a company, appoints an administrator or calls a meeting for the purpose of or to go into liquidation or has a winding-up application presented against it or has a receiver appointed, Braintree may at its option notwithstanding its waiver or such default or failure and without prejudice to its other rights under this contract, suspend or cancel this contract or require payment in cash before or on delivery or under or tender of goods notwithstanding the terms of payment previously specified, or may repossess and take over the goods and dispose of same in its own interest without prejudice to any claim it may have for damages for any loss resulting from such sale.
5.5 If the customer does not pay for any goods on the due date then Braintree is hereby irrevocably authorised by the customer to enter the customer's premises (or any premises under the control of the customer or as agent of the customer in which the goods are stored) and use reasonable force to take possession of the goods without liability for the tort of trespass, negligence, assault or battery or payment of any compensation to the customer whatsoever.
5.6 On retaking possession of the goods Braintree may elect to refund to the customer any part payment that may have been made and to credit the customer's account with the value of the goods less any charge for recovery of the goods, or to resell the goods.
Unless otherwise agreed in writing, risk in the goods shall pass to the customer at the time when the goods have been placed on the vehicle which is to effect delivery from Braintree 's store or warehouse. The goods shall remain at the customer's risk at all times unless and until Braintree retakes possession of the goods pursuant to these terms and conditions
7.1 Subject to clause 2.2 herein, Braintree shall not be liable for any loss or damage whatsoever and however arising whether direct or indirect or consequential or in respect of any claim whenever and however made for any loss or damage, deterioration, deficiency or other fault or harm in the goods provided by or on behalf of or in any arrangement with Braintree or occasioned to the customer or any third party or to his or their property or interest and whether or not due to the negligence of Braintree, its servants or agents.
7.2 As soon as any of the facts or matters which form any part of any claim or complaint whatsoever become known to the customer, the customer shall within fourteen (14) days notify Braintree in writing of the same.
7.3 Braintree shall not be liable in any circumstance for any:
(a) defects or damages caused in whole or in part by misuse, abuse, neglect, improper application, repair or alteration (other than by Braintree ) or accident;
(b) transport installation removal, labour or other costs;
(c) defects in goods not manufactured by it but Braintree will endeavour to pass on to the customer the benefit of any claim made by Braintree and accepted by the customer and the benefit of any claim made by Braintree and accepted by the manufacturer of such goods under a warranty given by the manufacturer of such goods provided that nothing contained in this subparagraph shall limit the rights of the customer to proceed against Braintree pursuant to the Trade Practices Act, and
(d) technical advice or assistance given or rendered by it to the customer or not in connection with the manufacture construction or supply of goods for or to the customer.
8 Force Majeure
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of Braintree, Braintree is unable to perform in whole or in part any obligation under this contract, Braintree shall be relieved of that obligation under this contract to the extent and for the period that it is so unable to perform and shall not be liable to the customer in respect of such inability.
Upon the occurrence of default by the customer in compliance with the items herein:
9.1 Braintree may at its discretion withhold further supplies of goods or cancel the contract, or vary the terms of this contract without prejudice to its rights hereunder PROVIDED HOWEVER that Braintree may at any time and from time to time upon such terms as it may determine waive any of its rights under this clause, but without prejudice to its rights thereafter of any of the events herein before referred to or upon the contribution after any such waiver of any state of affairs the subject of such waiver.
9.2 The customer hereby authorises Braintree or its agent to review its books and records, including all bank statements and other bank records, to determine whether the customer is able to pay its debts as and when they fall due and the customer further irrevocably grants to Braintree licence to enter upon the customer's premises for such purpose.
9.3 The customer shall pay to Braintree interest at the rate of 1.5% per month on daily balances in respect of any amounts as may from time to time be overdue until paid and such money together with all interest shall be recoverable forthwith from the customer as a liquidated debt.
9.4 Without prejudice to any other right or remedy the customer shall indemnify Braintree against any costs, fees, charges and disbursements charged by any mercantile or collection agent or solicitor engaged for the purpose of the collection or recovery of monies due and payable by the customer to Braintree on an indemnity basis and all such costs shall be recoverable as a liquidated debt and, at the option of Braintree, may be recovered in the Minor Debts Court.
9.5 The customer shall pay to Braintree an administration fee of $100.00 or 2% of the value of the default on the occurrence of every event of default as a liquidated debt being a genuine pre-estimate of the loss of Braintree in respect of such act of default, however such fee shall not preclude Braintree from claiming any higher amount from the customer for any loss occasioned by such act of default.
10 Lien Charge
10.1 The customer hereby acknowledges and agrees that Braintree has a lien over all goods in its possession belonging to the customer to secure payment of any or all amounts outstanding from time to time
10.2 The customer hereby charges all property, both equitable and legal, of the customer in respect of any monies that may hereinafter be owing to Braintree under this contract by the customer or otherwise and hereby authorises Braintree or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the customer at any time, or to register this charge over assets of the customer with the Australian Securities and Investment Commission.
11.1 This contract for the supply of the goods is deemed to have been entered into in the State of Queensland . Any legal action arising out of or in respect of the contract and/or the interpretation thereof shall be brought only in the Courts of Brisbane in the State of Queensland and the customer irrevocably submits itself to the jurisdiction of the Courts of Brisbane in the State of Queensland
11.2 If the subject matter of any dispute arising hereunder is within the jurisdiction of the Queensland Building Tribunal then the customer hereby elects not to have such dispute determined in the Queensland Building Tribunal, but instead to have such dispute heard and determined either in the Magistrates, District or Supreme Court according to the jurisdiction of each such court.
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