Fredrik Blencke and Lucinda Blencke trading as Cinzia
Conditions of Sale Effective 9 November 2006
1.DEFINITION
In these Conditions of Sale:
‘Goods’ means all products and services agreed to be supplied by Cinzia to the Buyer under any Contract;
‘Buyer’ means any person who acquires Goods from Cinzia under a Contract;
‘Contract’ means any contract for the supply of Goods entered into between Cinzia and the Buyer;
‘Cinzia’ means Fredrik Blencke and Lucinda Blencke trading as Cinzia and their agents, servants and employees and any related bodies corporate as defined in the Corporations Law (if such related body corporate is named as party to the Contract);
‘Overdue rate’ means 12 percent per annum;
‘Quoted Date’ means the date of delivery as agreed between the Buyer and Cinzia ;
‘Statutory Provisions’ means the Trade Practices Act 1974, any statutory amended or re-enactment thereof for the time being in force and any other relevant and applicable State and/or Commonwealth legislation;
2.STATUTORY PROVISIONS
These Conditions of Sale:
(a) Unless Cinzia otherwise agrees in writing, are the only Conditions of Sale for the supply of Goods by Cinzia to the Buyer to which Cinzia will be bound and the Buyer agrees that these Conditions of Sale will in all circumstances prevail over the Buyer’s Conditions of Purchase (if any); and
(b) Supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods including, but not limited to, those relating to the performance of the Goods or the results that ought to be expected from using the Goods.
3.WARRANTIES
(a) Cinzia warrants that the Goods supplied are of merchantable quality;
(b) Cinzia ’s liability for breach of sub-clause 3(a) or a condition or warranty implied into the Contract by law including without limitation the Statutory Provisions (other than a condition implied by section 69 of the Trade Practices Act) is limited to any one of the following as determined by Cinzia :
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair of the Goods or payment of the cost of having the Goods repaired; or
(iii) the refund of the price paid by the Buyer for the Goods.
The Buyer will examine the Goods for defects and shall notify Cinzia of any defects in writing within 7 days of the earlier of the date of collection of the Goods from Cinzia by the Buyer or a Carrier engaged by the Buyer to deliver the Goods to the Buyer or by an authorised collection agent of the Buyer or the date of delivery of the Goods to the Buyer by a Carrier engaged by Cinzia. If the Buyer does not notify Cinzia within 7 days of delivery the Buyer shall be deemed to have accepted the Goods.
(c) To the extent the law permits, Cinzia excludes all other liability whatsoever to the Buyer arising out of or in any way connected with a Contract including any liability for consequential or indirect losses of any kind howsoever arising and whether caused by breach of statute, breach of contract, negligence or other tort.
4.ADVICES
(a) The Buyer hereby acknowledges that it has not relied on any service involving skill or judgement, or on any advice, recommendation, information or assistance provided by Cinzia in relation to the Goods or their use or application.
(b) Notwithstanding the fact that catalogues, material, specifications or photographs may have been supplied by Cinzia to the Buyer no contract shall constitute a sale by sample or by description.
5.DELIVERY
Cinzia will make all reasonable efforts to have the Goods delivered to the Buyer on the date agreed between the parties as the Quoted Date, but Cinzia shall not be liable for any failure to deliver or delay in delivery for any reason and should it transpire that Cinzia is, for any reason, unable to deliver the Goods to the Buyer by the Quoted Date Cinzia can, by written notice to the Buyer, elect to terminate the contract for the sale of the Goods to the Buyer in which event Cinzia will refund any monies paid by the Buyer to Cinzia for the Goods in advance of delivery within seven (7) days of the date that Cinzia notifies the Buyer that the contract for the sale of such Goods has been terminated.
6.RISK
(a) Unless otherwise agreed in writing, all risk in and to the Goods purchased shall pass from Cinzia to the Buyer:-
(i) upon payment being made for the Goods by the Buyer to Cinzia, together with any freight and/or Carrier insurance charges, on a cleared funds basis; and
(ii) upon collection of the Goods by the Buyer from Cinzia; or
(iii) alternatively, upon collection of the Goods for delivery to the Buyer by a Carrier engaged by Cinzia on behalf of the Buyer or by a Carrier or other person or entity engaged or authorised by the Buyer to act is the Buyer’s collection agent or Carrier of the Goods.
(b) Without in any way limiting the operation of the foregoing, the Buyer shall bear the risk of any theft, loss or damage to the Goods that may occur while the Goods are in transit to the Buyer and, in the event that the Buyer elects to use its own Carrier to transport the Goods from Cinzia’s premises to the Buyer, the Buyer covenants and warrants to Cinzia that, in the storage and handling of the Goods, the Buyer and his agents and Carriers shall comply with all relevant environmental laws and regulations, and do comply with all necessary and/or relevant permits or licences pertaining to the storing and handling of the Goods, and the Buyer shall ensure that the Buyer and his agents and Carriers are familiar with and adhere to all the necessary and appropriate precautions and safety measures relating to the storing and handling of the Goods.
(c) If the Buyer elects to have the Goods dispatched to the Buyer by a Carrier organised by Cinzia, the Buyer must notify Cinzia of the Buyer’s delivery address in writing on the date that the Goods are ordered by the Buyer from Cinzia. If the Buyer wants to change the delivery address it must do so by written notice served upon Cinzia via Cinzia’s website facility for such notices no later than seven (7) days prior to the anticipated date of collection of the Goods from Cinzia’s storage facility by the Carrier engaged to deliver the Goods to the Buyer.
(d) If the Buyer fails to notify Cinzia of the Buyer’s delivery address when the Goods are ordered from Cinzia by the Buyer and Cinzia does not receive forwarding instructions sufficient to enable it to despatch the Goods within 14 days of Cinzia’s notification to the Buyer that they are ready for delivery or collection, the Buyer shall be deemed to have taken delivery of the Goods from such date. The Buyer shall be liable for storage charges payable monthly on demand.
(e) If Cinzia arranges Carrier insurance on behalf of the Buyer for theft, loss or damage to the Goods whilst they are in transit from Cinzia’s premises to the Buyer by a Carrier organised by Cinzia any claims in respect of such insurance cover must be made by the Buyer to the relevant insurer and, if it becomes necessary for the Buyer to make an insurance claim because the Goods are stolen, lost or damaged when in transit, whilst Cinzia will provide all reasonable assistance to the Buyer by providing details of collection of the Goods from Cinzia by the relevant Carrier to assist the Buyer to make such claim, it shall be the Buyer’s responsibility to make any such insurance claim and Cinzia shall be in no way liable to the Buyer or their insurer in respect of any such insurance claims.
7.TITLE
(a) Title in and to the Goods will not pass from Cinzia to the Buyer until Cinzia receives payment in full for all Goods and all monies owing by the Buyer to Cinzia on any account whatsoever.
(b) Until title in and to the Goods has passed to the Buyer in accordance with clause 7(a), if the Goods are delivered to or collected by the Buyer or its Carrier or authorised agent before the Buyer pays Cinzia for the Goods and/or freight and insurance charges, the Buyer holds the Goods as fiduciary agent and bailee for Cinzia and the Buyer will store the Goods separately in such a manner that they are clearly identified as the property of Cinzia . If the Goods are delivered to the Buyer before all contractual payment liabilities owing to Cinzia in respect of the Goods is received by Cinzia, Cinzia shall be entitled at any time to demand the return of the Goods and shall be entitled without notice to the Buyer to enter the Buyer's premises or any other premises upon which the Goods are held in order to search for and remove the Goods.
(c) If the Buyer sells any of the Goods before title in and to the Goods has passed in accordance with clause 7(a), the Buyer will hold such part of the proceeds of sale as relates to the price of the Goods sold on trust for Cinzia and will hold such proceeds in a separate account which clearly identifies the proceeds as monies held on trust for and on behalf of Cinzia .
8.PRICE
Unless otherwise agreed in writing, the price charged for the Goods shall be the price agreed between Cinzia and the Buyer on the date that Cinzia accepts the Buyer’s order of the Goods from Cinzia and any Carrier and/or insurance charges shall be payable by the Buyer to Cinzia in addition to such price.
(b)Cinzia operates on a currency surcharge / currency credit system and the price of any Item ordered may change relative to any fluctuations in currency between the time of writing the order and dispatch of Goods from their country of origin. If the Buyer pays for the Goods in advance and, due to currency exchange rate fluctuations between the date of payment for the Goods by Buyer and the Quoted date or any other date when Cinzia is able to deliver the Goods to the Buyer, and Cinzia decides that it has to increase the price payable by the Buyer for the Goods, the Buyer must pay the additional amount to Cinzia within seven (7) days of receiving written notification of the adjustment to the price payable for the Goods and Cinzia will, after such additional payment has been made by the Buyer to Cinzia, deliver the Goods to the Buyer or the Buyer can collect the Goods from Cinzia or arrange for a Carrier retained by the Buyer or an agent authorised by the Buyer to collect the Goods from Cinzia’s premises.
(c) Where a transaction tax, including a goods and services tax (GST) and any transaction taxes that come into existence after the date of these Conditions of Sale, applies to any supply made under these Conditions of Sale, Cinzia may recover from the Buyer an additional amount on account of that transaction tax.
9.FORCE MAJEURE
Deliveries may be totally or partially suspended by Cinzia during any period in which Cinzia may be prevented or hindered from manufacture, delivery or supply through any circumstances outside Cinzia ’s reasonable control, including but not limited to strikes, lockouts or other labour difficulty, inability to obtain any necessary materials, equipment, facilities or services, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network. Cinzia shall not incur any liability to the Buyer in respect of such suspension.
10.PAYMENT AND DEFAULT
(a) Unless otherwise agreed in writing all accounts shall be payable within 7 days of the date of order by the Buyer, or as otherwise identified on any statement of account issued by Cinzia .
(b) If any of the events set out in (i) to (v) below occur, Cinzia may at its option withhold further deliveries, cancel any pre-existing credit arrangements for payment for the Goods by the Buyer, or cancel the Contract without notice to the Buyer and without prejudice to any other action or remedy which Cinzia has or might otherwise have had and all moneys owing and outstanding to Cinzia on any account whatsoever and irrespective of whether the due date on any statement of account has occurred or passed shall become immediately due and payable:
(i) the Buyer makes default in any payments or is unable or states that it is unable to pay its debts as and when they fall due;
(ii) the Buyer being an individual commits an act of bankruptcy or has a controller or trustee appointed in respect of the Buyer’s estate or any part of the Buyer’s property or assets;
(iii) the Buyer being a company passes a resolution for its winding up or enters into liquidation or has an application for winding up filed against it;
(iv) a receiver, receiver and manager, controller or voluntary administrator is appointed over any part of the property or assets of the Buyer;
(v) the Buyer experiences any analogous event having substantially similar effect to any of the events specified above.
(c) In the event of the Buyer failing to effect payment on the due date and in the manner herein before specified then notwithstanding anything to the contrary herein contained, the Buyer shall pay to Cinzia interest on the whole of the monies so due and payable, calculated from the date of default up to and including the day upon which cleared funds are received in Cinzia 's nominated bank at the 'Overdue Rate'.
11.GENERAL LIEN
In addition to any right of lien to which Cinzia may be entitled under the common law, Cinzia shall be entitled to exercise a general lien over all items in its possession belonging to the Buyer until the Buyer has paid in full for all Goods ordered by the Buyer from Cinzia and has otherwise paid all monies due to Cinzia under these Conditions of Sale. Cinzia may in its sole discretion sell any item that is subject to the said lien, without having any obligation to pay to the Buyer any surplus proceeds that are realised by it from a sale of any such items.
12.WAIVER
The failure of Cinzia at any time to insist on performance of any provision of these Conditions of Sale is not a waiver of Cinzia 's rights at any time later to insist on performance of that or any other provision.
13.SEVERANCE
If any provision of these Conditions of Sale or its application to any person or circumstance is or becomes invalid, illegal or unenforceable the provision shall so far as possible be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. If any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of these Conditions of Sale shall not in any way be affected or impaired.
14.INTELLECTUAL PROPERTY
(a) Copyright in all photographs, drawings, designs, specifications, catalogues and other similar works supplied to the Buyer by Cinzia is vested in Cinzia and the Buyer shall not copy or reproduce or allow the copying or reproduction of any such works without the prior written consent of Cinzia .
(b) The Buyer shall not use the Cinzia name and/or any names or marks attached to any item the subject of this contract for advertising or promotional purposes in any manner or medium whatsoever without the prior written consent of Cinzia .
15. GOVERNING LAW
The supply of Goods under these Conditions of Sale is governed by the law of the State of New South Wales and Cinzia and the Buyer submit to the non-exclusive jurisdiction of the courts of the State of New South Wales.
