STANDARD TERMS AND CONDITIONS OF SALE FOR FROSTY BOY AUSTRALIA ABN-220 4922 1458
EXPORTS (Please scroll down for Australian DOMESTIC sales.)
(Not applicable to Domestic Sales – See separate conditions applicable to domestic sales)
1. DEFINITIONS:
"Buyer" means the person, firm, corporation or entity that orders and buys or agrees to buy the goods from Frosty Boy.
"Goods" means the product/s which the buyer contracts to buy.
2. CONDITIONS APPLICABLE:
2.1. These conditions shall apply to all contracts for the sale of goods by Frosty Boy to the buyer to the exclusion of all other terms and conditions including any terms or conditions which the buyer may purport to apply, contained in, or under any purchase order, confirmation of order or similar purchase document.
2.2. An order for goods shall be deemed to be an offer by the buyer to purchase goods pursuant to these conditions.
2.3. The submission of an order for the goods shall be deemed conclusive evidence of the buyer’s acceptance of these conditions.
2.4. Any variation to these conditions (including any special terms and conditions agreed between the parties) shall be invalid unless agreed to in writing by Frosty Boy and the buyer.
3. THE PRICE:
3.1. The price shall be the specific price quoted by Frosty Boy in writing.
3.2. The price in the quotation (i.e. Frosty Boy Australia’s Final Quotation And Pro-forma Invoice) is the applicable price at the date of quotation, and is, at Frosty Boy Australia’s discretion and subject to change depending on the fluctuation in the cost of materials, labour, currency exchange rates or duty and shipping rates, or any of them, or for any other Frosty Boy may deem necessary at it sole discretion without having to give any reason why. Notwithstanding anything to the contrary contained herein Frosty Boy reserves the right to vary the price and the buyer hereby agrees that by these terms and conditions it accept such variation without question.
3.3. No order of the buyer is binding upon Frosty Boy until it has been accepted or confirmed by Frosty Boy in writing.
4. RISK OF LOSS:
All goods purchased from Frosty Boy are made pursuant to a free on board (FOB Incoterms-2000 as amended), Port of
5. RETENTION OF TITLE:
5.1. Legal ownership of the goods shall not pass to the buyer until all monies owed by the buyer to Frosty Boy are paid in full, and unconditionally, and received as cleared effects/funds.
6. WARRANTIES:
6.1. Frosty Boy Australia disclaims all warranties, conditions or terms (whether express or implied by statute, common law or arising from conduct or a previous course of dealing or trade (custom or usage) as to the operation of the goods or the information, content or materials therein, or as to the quality of the goods or the fitness for any particular purpose (whether or not that purpose is made known to Frosty Boy Australia) or merchantability or condition of goods, are hereby expressly excluded and/or negated, to the extent to which the same can, in accordance with law, be excluded and/or negated.
6.2. It is fundamental to this contract that any damages recoverable from Frosty Boy Australia as a result in any breach of this contract, or from use or operation of the goods, shall be limited to and completely discharged by either (a) the replacement of goods or supply of equivalent goods, (b) the repair of the goods, (c) a refund of the purchase price to the buyer in accordance with Frosty Boy Australia’s refund or exchange policy, and such damages shall in no event include consequential damages of any kind whatsoever.
7. OTHER DOCUMENTATION
7.1. These conditions constitute the whole of the conditions applicable to the contract between Frosty Boy and the buyer. No statement, description, information, warranty, condition or recommendation contained in any catalogue, price list, advertisement or on the website of Frosty Boy and no communication made verbally by any of Frosty Boy’s agents or employees shall be construed in any way as part of the contract or to enlarge, vary, modify or override these conditions.
7.2. Frosty Boy reserves the right to modify the specifications of the goods in its discretion, and at any time.
8. CANCELLATION
Frosty Boy may cancel this or any other sale and purchase contract at any time before the goods are delivered, by giving written notice to the buyer. On giving such notice, Frosty Boy shall promptly repay to the buyer any sums paid in respect of the goods. Frosty Boy shall not then be liable for any loss or damage whatsoever arising from such cancellation.
9. INTELLECTUAL PROPERTY
Frosty Boy Australia makes no representation, warranty or statement of any kind that the goods or the use of goods either alone or in conjunction with others will not infringe any copyright, patent or trade mark rights or other intellectual property rights of any person.
10. PROPER LAW
10.1 This contract is deemed to have been made in Queensland Australia constituting the proper law of the contract, and is subject to, and is to be interpreted in accordance with the provisions of the Vienna Convention for the International Sale of Goods, 1980 (“CISG”) and insofar as any of these the terms and conditions are inconsistent with that of the CISG, these terms and conditions will prevail.
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STANDARD TERMS AND CONDITIONS OF SALE FOR FROSTY BOY AUSTRALIA ABN-220 4922 1458
DOMESTIC (Please scroll up for Australian EXPORT sales.) 1. The customer agrees that (a) this contract represents a binding agreement between the Customer and Frosty Boy Australia ABN-22049221458 (hereinafter called the "Seller") and that no alteration or additions to this contract may be effected unless agreed to by both parties, reduced to writing and respectively signed by the duly authorised representative of the Seller and the Customer; (b) that this agreement will govern all future sale and purchase transactions between the parties; and (c) is applicable to all existing debts between the parties.
(Not applicable to EXPORT Sales – See separate conditions applicable to domestic sales)
2. The Customer hereby acknowledges that he/she/its duly authorised representative has read and understood each term of this agreement and accepts them as binding.
3. The Customer warrants that the person placing an order with the Seller and/or purchasing the goods has been duly authorised to contract on its behalf.
4. The Customer acknowledges that that no representations were made by the Seller in regard to the goods or services of any of its qualities leading up to this contract.
5. The Customer agrees that neither the Seller nor any of its employees will be liable for any negligent or innocent misrepresentations made to the Customer.
6. All quotes will remain valid for a period of 30 days from date of the quote. The validity of any price quoted is subject to any increases in the cost price of the Seller before despatch of goods.
7. The Customer hereby confirms that the goods and services on the invoice issued duly represent the goods and services ordered by the Customer at the prices agreed to by the Customer and where performance/delivery has already taken place that the services and goods were inspected and conform to the quality and quantity ordered. It is the sole responsibility of the client to determine that the goods or services ordered by him are suitable for the purpose he intends using them.
8. Any document (copy or original) signed by the person receiving the goods on behalf of the Customer and held by the Seller shall be conclusive proof that delivery was made to the Customer. All orders, whether oral or in writing, will be binding and subject to these standard conditions of agreement and may not be cancelled.
9. The Seller shall be entitled in it sole discretion to split the delivery of the goods ordered in the quantities and on the dates it decides.
10. The Seller shall be entitled to invoice each delivery actually made separately.
11. The risk of damage to or destruction of goods passes to the Customer on conclusion of the agreement of sale.
12. In case of special orders undertaken by the Seller, delivery times given are merely estimates and are not binding on the Seller.
13. If the Seller agrees to engage a third party to transport the goods, the Seller is hereby authorised to engage a third party on the Customer´s behalf and on the terms deemed fit by the Seller.
14. The Customer agrees to indemnify the Seller against any claims that may arise from such agreement against the Seller.
15. In the event of goods that are defective, the rights of the Customer are limited to the factory guarantee of the goods supplied. To be valid, guarantee claims must be supported by the original invoice and the undamaged packaging of the goods. All guarantees are immediately null and void should any medium be tampered with. Under no circumstances will the Seller be liable for damage arising from misuse or abuse of the goods.
16. Liability under Clause 15 is restricted to the cost of repair or replacement of faulty goods or services or granting of a credit at the sole discretion of the Seller. It is the duty of the Customer to return any defective goods to the premises of the Seller at his/her/its own cost.
17. Any item delivered to the Seller will form the object of a pledge in favour of the Seller for present and past debts.
18. Under no circumstances will the Seller be liable for consequential damages.
19. No claim under this contract will arise unless the Customer has given the Seller 30 days written notice by prepaid registered post to rectify any defect of breach of contract.
20. The Customer agrees to pay the amount on the invoice at the offices of the Seller (a) cash on order, or (b) if the Customer is an Approved Customer, within thirty days of Monthly Account Statement (i.e. within 30 days of statement).
21. The Customer has no right to withhold payment for any reason whatsoever.
22. The Customer is not entitled to set off any amount due to the Customer by the Seller against this debt.
23. The Customer agrees that if an account is not settled in full (a) against order or (b) within the period agreed to according to clause twenty one (21) above in the case of Approved Customers, the Seller is (i) entitled to immediately institute action against the Customer at the sole expense of the Customer, or (ii) to cancel the agreement and take possession of any goods delivered to the Customer and claim damages.
24. The Customer agrees that the amount due and payable to the Seller shall be determined and proven by a certificate issued by the Seller and signed on its behalf by any duly authorised person, which authority need not be proven. Such certificate shall be binding and shall be face value proof of the indebtedness of the Customer.
25. The Customer agrees that interest shall be payable on any monies due to the Seller at the maximum legal interest rate. In the case of late payment interest shall be calculated from the date of order.
26. In the event of cancellation by the Seller, the Customer shall be liable to pay (a) the difference between the selling price and the value of the goods at the time of repossession and (b) all other costs incurred in the repossession of the goods. The value of repossessed goods will be deemed to be the value placed on them by any sworn valuator after such repossession and such valuation will be conclusive proof of the value.
27. The Customer indemnifies the Seller completely against any damage whatsoever relating to the removal of repossessed goods.
28. The Customer shall be liable to the Seller for all legal expenses (including collection fees) on the attorney-and-client scale to an attorney and counsel incurred by the Seller in the event of (a) any default by the Customer or (b) any litigation in regard to the validity and enforceability of this agreement. The Customer will also be liable for any collection or valuation fees incurred.
29. The Customer agrees that no indulgence whatsoever by the Seller will affect the terms of this agreement or any of the rights of the Seller and such indulgence shall not constitute a waiver by the Seller in respect of any of its rights herein. Under no circumstances will the Seller be stopped from exercising any of its rights in terms of this contract.
30. Any document will be deemed duly presented to the Customer within (i) 3 days of prepaid registered mail to any of the Customer´s business or postal addresses or to the personal address of any director, member or owner of the Customer, or (ii) within 24 hours of being faxed to any of the Customer´s fax numbers or any director, member´s or owner´s fax numbers, or (iii) on being delivered by hand to the Customer or any director, member or owner of the Customer.
31. The Customer chooses its notice address at its usual business address, or the physical addresses of any director (in the case of a company), member (in the case of close corporations) or of the owner(s) or partner(s).
32. The Customer agrees to the prices and rates of the Seller for any goods or services rendered; which rates may be obtained on request. All invoices shall record such particulars as are required in the Goods and Services Tax Law.
33. The invalidity of any part of this contract will not affect the validity of any other part.
34. Any order is subject to cancellation by the Seller due to force majeure from any cause beyond the control of the Seller, including (without restricting this clause of these instances): inability to secure products, labour, power, materials or supplies, or by reason of an act of God, war, civil disturbances, riot, state of emergency, strike, lockout, or other labour disputes, fire, flood, drought or legislation.
35. This contract becomes final and binding on the placing of an order for the goods by the Customer.
36. This Agreement shall be governed by and construed in accordance with the law for the time being in force in the State of
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