- “Chandon” shall mean Chandon Concepts, and its successors and assigns(or any person acting for or on behalf of and with the authority of Chandon Concepts).
- “Client” shall mean the Client (or any person acting for or on behalf of and with the authority of the Client), as described on the invoice or quotation, work authorisation or other form provided by Chandon to the Client.
- “Goods” shall mean all Goods supplied by Chandon to the Client (and within the context shall include any provision of Services as defined in clause 1.4 below), as described on the invoice or quotation, work authorisation or other form provided by Chandon to the Client.
- “Services” shall mean all Services provided by Chandon to the Client (and within the context shall include any provision of Goods as defined in clause 1.3 above), and includes any advice or recommendations.
- “Price” shall mean the Price payable for the Goods and/or Services, as agreed in the Contract between Chandon and the Client, and in accordance with clause 4.1 to 4.3 below. All pricing are shown in Australian Dollars (AUD).
- “Contract” shall mean the signed written Agreement entered into between Chandon and the Client, for the supply of Goods and/or the provision of Services at the Price payable, in accordance with these Terms.
- “Terms” shall mean the Chandon Terms and Conditions of Trade constituted by clauses 1 to 14 herein.
- The Competition and Consumer Act 2010 (CCA) and Fair Trading Acts (FTA)
- Nothing in the Contract is meant or intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA, in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except where applicable and to the extent permitted by those Acts.
- Where the Client buys Goods as a consumer, these Terms shall be subject to any laws or legislation governing the rights of consumers, and shall not prejudice the consumer’s statutory rights.
- The Client shall acknowledge and accept responsibility for determining the fitness of the Goods for the intended purpose and use. The Client shall undertake to read and apply all instructions, guidelines and safety regulations, and to ensure User competency in connection with the Goods.
- The Contract shall be binding and shall supercede any prior agreements, representations or undertakings made between Chandon and the Client in respect of the supply of Goods. These Terms are integral to the Contract, and can only be amended with the written consent of Chandon.
- Any instructions received by Chandon from the Client for the supply of Goods, and/or the Client’s acceptance of Goods supplied by Chandon, shall constitute acceptance of these Terms.
- Goods are supplied by Chandon solely on these Terms, to the exclusion of anything stated to the contrary in the Client’s order, notwithstanding if the terms thereof purport to override these Terms.
- Where more than one Client has entered into the Contract, each Client shall be jointly and severally liable for all payments of the Price.
- The Client shall give Chandon not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client, or any change in the Client’s name and/or contact details (including but not limited to business practice, address or telephone number). The Client shall be liable for any loss incurred by Chandon as a result of the Client’s failure to comply with this clause.
- Price and Payment
- At the sole discretion of Chandon the Price shall be either:
(a) as stated on Chandon’s invoices issued to the Client in respect of the Goods supplied; or
(b) according to Chandon’s current Price list ruling at the date of delivery of the Goods; or
(c) as stated on Chandon’s quotation (subject to clause 4.2 below), which shall be binding upon Chandon provided that written acceptance by the Client is received within thirty (30) days.
- Chandon reserves the right to amend the Price of the Goods in the event of a variation to their quotation to the Client. Any changes to the scope of works or specifications will be costed out on the basis of Chandon’s quotation, and shown as variations on the invoice. This includes but is not limited to increases incurred by Chandon, in prices of materials and labour, fluctuations in foreign currency rates of exchange, or other external factors.
- Goods and Services Tax (GST) and other applicable taxes, duties and surcharges etc shall be added to the Price, except where expressly included in the Price of the Goods.
- A non-refundable deposit may be required at Chandon’s sole discretion, on order placement by the Client and confirmation by Chandon.
- At the sole discretion of Chandon payment shall be either:
(a) due in full on delivery of the Goods; or
(b) due before delivery of the Goods; or
(c) made in instalments for approved Clients and in accordance with Chandon’s payment schedule.
- Time of payment for the Goods shall be of the essence, and will be stated on Chandon’s invoice or other forms. If no time is stated then payment shall be due at the end of the month following the invoice date.
- Payment shall be made by Bank transfer, cash or credit card (plus any applicable surcharge), Client’s or Bank cheque, or as agreed to in the Contract between Chandon and the Client.
- The Client shall not be entitled to set off against or deduct from the Price, any sums owed or claimed to be owed to the Client by Chandon, nor to withhold payment of any invoice because part of that invoice is in dispute.
- Delivery of Goods
- Unless stated to the contrary in the Contract, the costs of delivery shall be in addition to the Price of the Goods, and for the Client’s account.
- Delivery of the Goods shall be deemed to have taken place when either:
(a) the Client takes possession of the Goods at Chandon’s address; or
(b) the Client takes possession of the Goods at the Client’s nominated address (in the event that the Goods are delivered by Chandon or its nominated carrier); or
(c) the Client’s nominated carrier takes possession of the Goods at either Chandon’s address or the Client’s nominated address (in which event the carrier shall be deemed to be the Client’s agent).
- Chandon may deliver the Goods in separate instalments, in which case each consignment shall be invoiced for payment by the Client, in accordance with the provisions of these Terms.
- The Client shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Client is unable to take delivery of the Goods as arranged, then Chandon shall be entitled to charge a reasonable fee for demurrage and/or re-delivery.
- Delivery of the Goods to a third party nominated by the Client, shall be deemed to be delivery to the Client for the purposes of the Contract.
- Chandon shall not be liable for any loss or damage whatsoever, arising from the failure to deliver all or any part of the Goods promptly or at all, where caused by circumstances beyond Chandon’s control.
- Any failure by Chandon to deliver the Goods, shall not entitle either party to cancel, repudiate or void the Contract.
- All risk for the Goods shall pass to the Client on delivery, however ownership of the Goods shall remain vested in Chandon until payment in full is received.
- If any of the Goods are damaged or destroyed after delivery but prior to ownership passing to the Client, Chandon shall then be entitled to receive all insurance proceeds payable for the Goods. The production of these Terms shall be sufficient evidence of Chandon’s rights to receive the insurance proceeds.
- The Client shall acknowledge and accept that Chandon shall not be liable for any loss or damage whatsoever, which may arise due to incorrect use of the Goods by the Client or any third party.
- Title and Ownership
- Chandon and the Client shall agree that title to, and ownership of the Goods shall not pass until:
(a) the Client has paid to Chandon all amounts owing for the particular Goods; and
(b) the Client has performed all other obligations towards Chandon in respect of the Contract.
- Receipt by Chandon of any form of payment other than cash, shall not be deemed payment until honoured or cleared, and until then Chandon’s ownership or rights vested in the Goods shall continue.
- Chandon and the Client shall further agree that:
(a) Chandon shall have the right to stop the Goods in transit, whether or not delivery has been made; and
(b) where practicable the Goods shall be kept separate and identifiable, until Chandon has received payment and all other obligations have been performed by the Client; and
(c) until such time that ownership of the Goods shall pass from Chandon to the Client, Chandon may give notice in writing to the Client to return all or part of the Goods. Upon receipt of such notice, the Client’s rights to ownership or any other interest in the Goods shall cease forthwith; and
(d) if the Client fails to return the Goods, then Chandon or its agents (as invitee of the Client), may enter into premises owned, occupied or used by the Client, or into any premises where the Goods are situated and take possession of the Goods; and
(e) Chandon may issue proceedings to recover the Price of the Goods sold, notwithstanding that ownership of the Goods may not have passed to the Client; and
(f) until such time that Chandon has received payment in full for the Goods, the Client (as bailee of the Goods), shall hold any proceeds from the sale or disposal thereof in trust for Chandon, up to the amount owing; and
(g) the Client shall not deal with Chandon’s money in any way which may prove adverse to Chandon; and
(h) the Client shall not charge out the Goods to any third party, nor grant any interest in the Goods while they remain the property of Chandon; and
(i) Chandon shall become the owner of the end products if the Goods are converted into other products, until such time that ownership of the Goods passes to the Client.
- The Client shall inspect the Goods on delivery and within five (5) working days of delivery, shall notify Chandon of any alleged defect or damage, shortage in quantity, or failure to comply with the quotation or description of the Goods.
- The Client shall then afford Chandon an opportunity to inspect the Goods within a reasonable time following delivery. If the Client fails to comply with these provisions, the Goods shall be presumed to be free from any defect or damage.
- In the case of defective or damaged Goods which Chandon has agreed in writing that the Client is entitled to reject, Chandon’s liability shall be limited to either repairing or replacing the Goods at its sole discretion.
- Where the Client has acquired the Goods as a consumer, as defined in the Competition and Consumer Act 2010 (Commonwealth) or the Fair Trading Acts of the relevant States or Territories of Australia, the Client shall also be entitled at the consumer’s discretion, to either a refund of the Price of the Goods, or repair or replacement of the Goods.
- Returns of defective or damaged Goods shall only be accepted by Chandon provided that:
(a) Chandon shall not be liable for Goods which have not been handled or stored in a proper manner; and
(b) the Client has complied with the provisions of clauses 8.1 and 8.2 above, and Chandon has agreed in writing; and
(c) the Goods are returned at the Client’s cost within ten (10) days of delivery; and
(d) the Goods are returned in the condition in which they were delivered, with all packaging materials and product literature in as new condition as is reasonably possible.
- Chandon may at their sole discretion accept the return of Goods for credit, but this may incur a handling fee of up to ten percent (10%) of the value of the returned Goods, plus any freight costs.
- Non-stocklist items or Goods made to the Client’s drawings and/or specifications, shall under no circumstances be accepted for return or credit.
- Chandon reserves the right to cancel any Contract to which these Terms apply, or cancel delivery of the Goods at any time before the due date, by giving written notice to the Client. Chandon shall then repay to the Client any amounts already paid in respect of the Price of the Goods, but shall not be liable for any loss or damage whatsoever arising from such cancellation.
- In the event that the Client cancels delivery of the Goods, then Chandon reserves the right to charge a fee of up to ten percent (10%) of the value of the cancelled Goods. The Client shall nevertheless be liable for any resultant loss incurred by Chandon up to the time of cancellation, including but not limited to any loss of profits.
- Cancellation of orders for non-stocklist items or Goods made to the Client’s drawings and/or specifications, shall under no circumstances be accepted after production has commenced
- Subject to the conditions of warranty set out in clause 11.2 below, Chandon warrants that if any defect in the Goods due to faulty workmanship becomes apparent, and is reported in writing to Chandon within six (6) months after delivery, then Chandon shall at their sole discretion either remedy the workmanship or replace the defective Goods.
- The conditions applicable to the warranty in clause 11.1 above are:
(a) the warranty shall not cover any defect or damage which may be caused or partly caused by, or arise through either:
(i) failure by the Client to properly handle or store the Goods; or
(ii) failure by the Client to follow any instructions or guidelines provided by Chandon; or
(iii) any use of any Goods otherwise than for the application specified in Chandon’s quotation or the Client’s order; or
(iv) the continued use of any Goods after any defect becomes apparent; or
(v) fair wear and tear, any accident or act of God; and
(b) the warranty shall cease and Chandon shall thereafter under no circumstances be liable, if the Goods or workmanship are repaired or altered without Chandon’s written consent; and
(c) Chandon shall not be liable in respect of any claims to compensate the Client for any delay in either properly assessing the Client’s claim, remedying the workmanship or replacing the Goods.
- In the case of Goods not manufactured by Chandon, the warranty shall be the current warranty provided by the Manufacturer. Chandon shall not be bound by nor responsible for any term or condition, representation or warranty other than that provided by the Manufacturer of the Goods
- Default and Consequences
- Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment at a rate of two percent (2%) per calendar month, after as well as before any Court judgment. Such interest shall compound monthly at this rate subject to Chandon’s sole discretion.
- If any invoice remains overdue after sixty (60) days, then a charge of ten percent (10%) of the amount overdue shall be levied to cover administration fees, and become immediately due and payable up to a maximum of one hundred ($100) dollars.
- If the Client defaults in payment of any invoice when due, the Client shall indemnify Chandon against all costs and disbursements incurred by Chandon in pursuing the debt, including legal costs on a solicitor and own client basis, and Chandon’s collection agency costs.
- In the event that the Client’s payment is dishonoured for any reason, the Client shall reimburse any resultant fees incurred by Chandon.
- Without prejudice to any other remedies available at law, if at any time the Client is in breach of any obligation (including those relating to payment), Chandon may suspend or terminate the supply of Goods to the Client, and any of its other obligations under these Terms. Chandon shall not be liable to the Client for any loss or damage the Client may suffer as a result of Chandon exercising its rights under this clause.
- Without prejudice to any other remedies available at law, Chandon shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled, and all amounts owing to Chandon shall, whether or not due for payment, become immediately payable in the event that either:
(a) any moneys payable to Chandon become overdue, or in Chandon’s opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client becomes insolvent, convenes a meeting with its creditors, proposes and/or enters into an arrangement with its creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver or financial manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client, or any asset of the Client.
Privacy Act 1988
The Contract shall be governed by all relevant clauses of the Privacy Act 1988, and both Chandon and the Client shall agree to be bound by the provisions thereof.
These Terms and Conditions of Trade and any Contract to which they apply, are governed by the laws of Victoria Australia and subject to the jurisdiction of the Courts of that State.
If any provisions of these Terms are invalid or void, illegal or unenforceable, the validity and existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired in any way.
The Client agrees that Chandon may review these Terms at any time and at its sole discretion. If following any such review there is any change to any provision, then that change will take effect from the date on which Chandon notifies the Client in writing. Any such changes shall only apply where Chandon supplies further Goods to the Client, and shall not apply to Goods already supplied to the Client.
Failure by Chandon to enforce any provision of these Terms shall not be deemed a waiver of that provision, nor shall it affect Chandon’s subsequent right to enforce that provision.
In the event of any breach of this Contract by Chandon, the remedies available to the Client shall be limited to damages, which under no circumstances shall exceed the Price of the Goods.
Chandon shall be under no liability whatsoever to the Client for any direct or indirect, incidental or consequential damage, loss or expense, including loss of profit suffered by the Client, arising out of any breach of these Terms by Chandon.
Neither Chandon nor the Client shall be liable for any default in respect of the Contract attributable to any act of God or natural disaster, fire or flood, earthquake or storm, war or terrorism, strike or lock-out, industrial action or other event beyond the reasonable control of either party.