These Terms and Conditions of Trade apply to all Orders accepted by C. Fulton.  Orders are generally made by the Customer to a C. Fulton Group Member by telephone, with C. Fulton accepting each Order by issuing an invoice to the Customer.  C. Fulton accepts each Order on and subject to these Terms and Conditions of Trade.  Invoices must be paid in full prior to the last day of the calendar month after the invoice is issued (clause 12).  This includes where a Customer has a credit or trading account with C. Fulton.

 

1) DEFINITIONS

In these terms and conditions:

‘Customer’ means the person to whom any quotation is made by a C. Fulton Group Member, any person offering to contract with a C. Fulton Group Member and/or any person who purchases Products from a C. Fulton Group Member;

‘Consequential Loss’ means any loss or damage suffered by a party or any other person which is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, or loss or denial of opportunity;

‘Defect’ means a defect, flaw or imperfection in the Products which prevents the Products from being used for the purposes intended for such Products or which makes the use of the Products dangerous, but does not include anything which has been disclosed as a feature or limitation of the Products by a C. Fulton Group Member prior to the date of purchase, or any defect, flaw or imperfection that is trivial or insubstantial;

‘C. Fulton’ or ‘C. Fulton Group Member’ means each of C. Fulton Pty Ltd ACN 006 077 710, C. Fulton Oasis Garden Supplies Pty Ltd ACN 112 560 344 and C. Fulton Bayside Pty Ltd ACN 134 565 996 or any one of them and each of their agents, servants and employees and any related bodies corporate as defined in the Corporations Act 2001 (Cth) (if such related body corporate is named as the party making or accepting the Customer’s Order);

‘Products’ means all goods and services agreed to be supplied by a C. Fulton Group Member to the Customer under any contract, arrangement or understanding between a C. Fulton Group Member and the Customer;

‘GST’ means any goods and services tax and any replacement or similar tax;

‘GST Law’means A New Tax System (Goods and Services Tax) Act 1999 (Cth);

‘Invoice’ means the invoice issued by a C. Fulton Group Member to the Customer setting out the amount to be paid by the Customer; and

‘Order’ means any order for Products placed by the Customer with a C. Fulton Group Member, in whatever form, including verbally by telephone.

 

2) GENERAL

  1. Unless a C. Fulton Group Member otherwise agrees in writing, these are the only terms and conditions which apply to the sale of Products by the C. Fulton Group Members and the Customer agrees that these terms and conditions will in all circumstances prevail over any other document, Order, or other terms, including the Customer’s terms and conditions of purchase (if any).
  2. These terms and conditions supersede and exclude all prior and other discussions, dealings, representations, and arrangements relating to the supply of the Products, except as otherwise expressly stated as continuing obligations (for example, any express Product warranties) or as otherwise implied by law.
  3. If there is an inconsistency between any other terms agreed by the Customer and a C. Fulton Group Member in writing and these terms and conditions, the terms agreed by the Customer and the C. Fulton Group Member in writing will prevail to the extent of any inconsistency.

 

3) ORDERS

  1. The C. Fulton Group Members have the sole discretion to accept or reject any Order or any variation or modification of an Order requested by the Customer.
  2. The C. Fulton Group Members have the sole discretion to accept or reject any Order cancellation request by the Customer. If a cancellation request is accepted by a C. Fulton Group Member, the Customer will be liable for any direct loss or expense incurred by that C. Fulton Group Member in respect of that Order (including without limitation, payment for any Products ordered by that C. Fulton Group Member from its suppliers relating to that Order).
  3. Where some Products ordered are not in stock, the relevant C. Fulton Group Member may at its discretion supply part of the Order and invoice the Customer for that part of the Order supplied.

 

4) EXCLUSION OF LIABILITY

  1. Except as provided or implied by law, no C. Fulton Group Member provides any warranty, guarantee or similar right in respect of the Products. To the full extent permitted by law, each C. Fulton Group Member excludes any warranty, guarantee or similar right provided or implied by law.
  2. If any warranty, guarantee or similar right provided or implied by law applies to a C. Fulton Group Member’s provision of Products and cannot be excluded, to the full extent permitted by law each C. Fulton Group Member limits its liability to, a refund of the price paid, supplying the Products again or to the payment of the cost of having the Products supplied again, at the election of the relevant C. Fulton Group Member.
  3. Nothing in these terms or conditions excludes, restricts, or modifies any warranty, guarantee or similar right provided or implied by law which cannot be excluded, restricted, or modified.
  4. To the extent the law permits and notwithstanding any other clause of these terms and conditions, the C. Fulton Group Members exclude all liability whatsoever to the Customer for any Consequential Loss.

 

5) ADVICE

The Customer acknowledges that it has not relied on any services involving skill or judgment, or on any advice, recommendation, information, or assistance provided by any C. Fulton Group Member in relation to the Products or their use or application.

 

6) DELIVERY

  1. The relevant C. Fulton Group Member will make reasonable efforts to have the Products delivered to the Customer on the date agreed between the parties as the delivery date. However, time is not of the essence in this agreement and the relevant C. Fulton Group Member will not be liable for any delay in delivery for any reasonable reason.
  2. The Customer shall be responsible for checking the delivery of Products upon receipt and shall report any discrepancy in the quantity of the Products ordered by the Customer to the relevant C. Fulton Group Member at the time of delivery. Failure to report any discrepancy to the relevant C. Fulton Group Member within a reasonable time shall constitute acceptance by the Customer that the quantity of Products delivered matches the quantity of Products ordered by the Customer.
  3. The Customer will be liable for all costs associated with the delivery of Products to the Customer. With the prior written agreement of the relevant C. Fulton Group Member, the Customer may nominate its own carrier to take possession of the Products ordered and deliver them to the Customer.

 

7) DEFECTS

  1. The Customer must examine the Products for Defects upon delivery and notify the relevant C. Fulton Group Member of any Defects in writing within a reasonable time. If the Customer does not notify the relevant C. Fulton Group Member within a reasonable timeafter delivery, the Customer shall be deemed to have accepted the Products.
  2. The Customer must preserve any Products that are found to have a Defect in the state in which they were delivered and allow the relevant C. Fulton Group Member (or its nominated agent) access to the Customer’s premises to inspect the Products. If the relevant C. Fulton Group Member, upon inspection agrees with the Customer that such Products have a Defect, the remedies set out in clause 4(b) will apply.

 

8) RISK AND TITLE

  1. All risk in and to the Products purchased by the Customer shall pass to the Customer upon delivery to the Customer or any agent or other carrier commissioned by the Customer to take possession of the Products. Legal and equitable title in and to the Products shall not pass to the Customer until payment in full for all Products is made by the Customer to the relevant C. Fulton Group Member.
  2. The Customer acknowledges that until title in and to the Products passes to the Customer in accordance with this clause 8, the Customer holds the Products as bailee of the relevant C. Fulton Group Member and that a fiduciary relationship exists between the Customer and that C. Fulton Group Member.
  3. Until title in and to the Products passes to the Customer in accordance with this clause 8, the Customer shall store the Products separately and in such a manner that they are clearly identified as the property of the relevant C. Fulton Group Member and ensure that the Products are properly stored, protected, readily identifiable and insured. The C. Fulton Group Members shall be entitled at any time until title in and to the Products passes to the Customer to demand the return of the Products and shall be entitled without notice to the Customer and without liability to the Customer to enter any premises occupied by the Customer (or any other premises where the Customer is holding the Products) in order to search for and remove the Products.
  4. The Customer acknowledges that if it sells the Products before title in and to the Products has passed to the Customer in accordance with this clause 8, it sells the Products as a fiduciary agent of the relevant C. Fulton Group Member provided that such sales shall not give rise to any obligations on the part of the C. Fulton Group Members. The Customer shall hold the proceeds of sale on trust for the relevant C. Fulton Group Member in a separate account and must pay to the relevant C. Fulton Group Member such amount as that C. Fulton Group Member reasonably requests.

 

9) PERSONAL PROPERTY SECURITY ACT 2009 (Cth) (‘PPSA’)

  1. The Customer acknowledges that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all the Customer’s present and after-acquired Products supplied by a C. Fulton Group Member.
  2. The C. Fulton Group Members and the Customer agree that nothing in sections 130(1)(a) and 143 of the PPSA will apply to these terms and conditions.
  3. The Customer waives its rights as a debtor under sections 92, 93, 94, 95, 97, 118, 121, 132, 135, 137, 140 and 142 of the PPSA.
  4. The Customer further agrees that where a C. Fulton Group Member has rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply.
  5. In this clause: i) ‘security agreement’ means the security agreement under the PPSA created between the Customer and the relevant C. Fulton Group Member; and ii) ‘security interest’ has the meaning given to it by the PPSA.

 

10) PRICE

  1. Unless otherwise agreed in writing, the price charged for the Products shall be the price most recently communicated or listed by the relevant C. Fulton Group Member in their price list as at the date of delivery (plus any GST payable in accordance with clause 18 of these terms and conditions).
  2. Any price indications or price lists provided by a C. Fulton Group Member to the Customer or otherwise made available to the Customer are subject to alteration on reasonable notice.

 

11) FORCE MAJEURE

  1. No C. Fulton Group Member is liable for any failure to perform any of its obligations under these terms and conditions as a result of any event beyond its reasonable control including, without limitation, where a C. Fulton Group Member is prevented or hindered from manufacturing, delivering or supplying the Products as a result of any strikes, lockouts or other labour difficulty, inability to obtain any necessary materials, products, equipment, facilities or services from usual suppliers on usual terms, power or water shortage, accidents or breakdowns of plant, machinery, software, hardware or communication network. In such circumstances, the relevant C. Fulton Group Member may suspend performance of any obligations under these terms and conditions while the event continues. The C. Fulton Group Members shall not incur any liability to the Customer in respect of such suspension.
  2. If any of the above events occur for more than 30 days, either party may terminate any affected Order and/or these terms and conditions immediately by notice in writing to the other party.

 

12) PAYMENT AND DEFAULT

  1. Subject to clauses 12b), 12e) and 12g), and unless otherwise agreed in writing by the relevant C. Fulton Group Member (including where otherwise identified on any Invoice issued by the relevant C. Fulton Group Member), all Invoices must be paid in full by the Customer prior to the last day of the following calendar month after the Invoice is issued.
  2. The C. Fulton Group Members may in their absolute discretion, require payment prior to the provision of Products.
  3. Each C. Fulton Group Member reserves the right to charge interest on any overdue amount at a rate of 10% per annum from the due date for payment until payment in received in full by the relevant C. Fulton Group Member.
  4. The Customer agrees to bear all costs incurred by the C. Fulton Group Members in collecting any overdue amounts including but not limited to collector agency fees, legal fees (on a full indemnity basis), debt collection costs and charges and court costs.
  5. If;
    1. the Customer defaults on any payments or is unable or states that it is unable to pay its debts as and when they fall due;
    2. the Customer being an individual commits an act of bankruptcy or has a controller or trustee appointed in respect of the Customer’s estate or any part of the Customer’s property or assets;
    3. the Customer being a company passes a resolution for its winding up or enters liquidation or has an application for winding up filed against it;
    4. a receiver, receiver and manager, controller or voluntary administrator is appointed over any part of the property or assets of the Customer; or
    5. the Customer experiences any analogous event having a substantially similar effect to any of the events specified above, then the relevant C. Fulton Group Member may, at its option, withholdfurther deliveries or cancel any Order without notice to the Customer and without prejudice to any other action or remedy which that C. Fulton Group Member has or might otherwise have under these terms and conditions. In such circumstances, all moneys owing and outstanding to any C. Fulton Group Member on any Invoice and irrespective ofwhether the due date on any Invoice has occurred or passed shall become immediately due and payable.
  6. Notwithstanding clause 12(a), each C. Fulton Group Member may always in its sole and unfettered discretion and without being under any duty or obligation to assign reasons to such discretion, alter or terminate the Customer’s credit limit or payment terms on providing the Customer with reasonable notice. Without limiting the generality of the foregoing, the decision of that C. Fulton Group Member shall be final, and, to the extent permitted by law, no C. Fulton Group Member accepts any liability or responsibility for any loss (including Consequential Loss), howsoever arising.
  7. If the Customer has provided credit card details, the Buyer authorises the relevant C. Fulton Group Member to process payment, using the credit card details provided, on the due date for payment or otherwise on the 15th day of each calendar month for any outstanding Invoices.
  8. Incorrect purchase order numbers are not grounds for the Customer to withhold payment of any amounts owing under these terms and conditions or any Invoice. If a C. Fulton Group Member issues an invoice with an incorrect purchase order number, the Customer must notify the relevant C. Fulton Group Member and the relevant C. Fulton Group Member will use its reasonable endeavours to rectify the mistake.

 

13) TERMINATION

Either party may terminate its agreement under these terms and conditions by written notice to the other party, without prejudice to any rights accrued under these terms and conditions if:

  1. the other partybreaches these terms and conditions, and the breach is not capable of remedy, or the other partydoes not remedy the breach within 7 days of written notice by the first party;
  2. any of the events set out in clause 12(e) occur in relation to the other party; or
  3. the first party wishes to terminate for convenience, in which case 30 days’ written notice is required to be given to the other party.

 

14) GENERAL LIEN

In addition to any right of lien to which a C. Fulton Group Member may be entitled under the common law, the relevant C. Fulton Group Member shall be entitled to exercise a general lien over all items in its possession belonging to the Customer until the Customer has paid in full for all Products supplied by a C. Fulton Group Member to the Customer. Each C. Fulton Group Member may in its sole discretion sell any item that is subject to a lien, provided that the relevant C. Fulton Group Member shall pay to the Customer any surplus proceeds that are released by it from a sale of any such items after discharging in full all monies outstanding to the C. Fulton Group Members in respect of unpaid Products and all reasonable costs of sale incurred by the C. Fulton Group Members.

 

15) SEVERANCE

If any provision of these terms and conditions 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 terms and conditions shall not in any way be affected or impaired.

 

16) VARIATION AND ASSIGNMENT

  1. The C. Fulton Group Members may vary these terms and conditions by giving the Customer prior written notice and seeking the Customer’s acceptance of the variation(s) or new terms and conditions.
  2. Either party may assign its rights under these terms and conditions with the other party’s prior written consent.

 

17) GOVERNING LAW

These terms and conditions are governed by and construed under the law in the State of Victoria, Australia. Any legal action in relation to these terms and conditions against any party or its property may be brought in any court of competent jurisdiction in the State of Victoria. Each party irrevocably, generally, and unconditionally submits to the non-exclusive jurisdiction of any court specified in this provision in relation to both itself and its property.

 

18) GST AND OTHER TAXES AND DUTIES

Notwithstanding any other clause in these terms and conditions, to the extent that any supply made under or in connection with these terms and conditions is a taxable supply (as defined by the GST Law), the Customer must pay to the relevant C. Fulton Group Member, in addition to the consideration provided for under these terms and conditions for that supply (unless it expressly includes GST) an amount (additional amount) equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply. The Customer must pay to the relevant C. Fulton Group Member the additional amount at the same time as the consideration to which it is referable. The Customer is responsible for paying any other duties, taxes, or charges, including any stamp duty (if applicable), in relation to the Products.

 

19) WAIVER

Waiver by a C. Fulton Group Member of a breach of these terms and conditions or of any right or power arising on a breach of these terms and conditions must be in writing and signed by that C. Fulton Group Member. A right or power created or arising on a breach of these terms and conditions is not waived by any failure to exercise or delay in exercising, or a partial exercise of, that or any other right or power.

 

20) NO RIGHT TO OFFSET

No amount owing whether present or future, actual, contingent, or prospective and on any account whatsoever by the Customer to a C. Fulton Group Member may be offset against any amount owing by a C. Fulton Group Member to the Customer hereunder on any other account whatsoever.

 

21) INTELLECTUAL PROPERTY

The purchase of Products under these terms and conditions does not confer on the Customer any licence or assignment of any copyright, patent, design or trademark, or any other intellectual property right (whether registered, registrable, or not) that subsists in the Products.