Terms & Conditions
1. Contract All Goods supplied and services provided by Orca Enterprises P/L are sold on these terms and conditions (“Terms”).
2. Delivery, Risk of Loss and Receipt of Goods Risk of loss or damage to the Goods will pass to the Customer on delivery to the Customer’s proposed destination.
3. Termination Both Parties have the right to immediately terminate these Terms should an Event of Default occur.
4. Payment and Credit Payment terms are subject to Orca Enterprises Pty Ltd credit approval. Orca Enterprises P/L may require payment of a deposit (with official written purchase order) before Orca Enterprises P/L starts manufacture. The balance must be paid two (2) days prior to despatch or installation unless the Customer has provided credit references that are satisfactory to Orca Enterprises P/L in which case the balance must be paid within 14 days. A 2.5% Late Payment Fee will be applied every 7 days after the due date and added to the total outstanding amount due.
5. Interest and costs Orca Enterprises P/L may charge interest at the penalty interest rate fixed by the Attorney General from time to time under the Penalty Interest Rates Act 1983 (Sth. Aust.) plus 2% per annum on any outstanding amounts owed to it by the Customer. Orca Enterprises P/L may also charge the Customer all enforcement costs (including legal costs and disbursements on a solicitor own client basis) incurred in connection with a breach of these Terms by the Customer.
6. Retention of Title Property in the Goods does not pass to the Customer until Orca Enterprises P/L has received payment in cleared funds for those particular Goods and payment in full of all other money owing (including retention amounts if any) by the Customer on any other account, whether or not that account relates to the sale of Goods. If the Customer fails to comply with any of these Terms Orca Enterprises P/L, without notice, may take possession of the Goods which were the subject of this reservation of title, or trace the proceeds of their sale (as applicable) and recover the full amount owing to Orca Enterprises P/L together with any interest and costs. The Customer must, to the extent reasonably possible, hold the Goods supplied by Orca Enterprises P/L separately from other Goods held by the Customer and marked in a way that makes it clear that they are Orca Enterprises P/L’ property pending payment in full of all monies herein mentioned.
Orca Enterprises P/L may, without prejudice to any of its other rights and without notice, retake and resume possession of any of the Goods which remain its property and for that purpose, by its employees or agents, enter the Customer’s premises, or any other such place as the Goods may be, without liability for trespass or any resulting damage, if:
- (a) there is a breach of any contract between Orca Enterprises P/L and the Customer;
- (b) any of the Events of Default mentioned in the Schedule occurs; or
- (c) the Customer parts with possession of any of the Goods except by way of sale to its own customers in the ordinarycourse of its business.
Orca Enterprises P/L may recover the price of the Goods by action, and may apply to wind up or bankrupt the Customer, if the Goods are not paid for within Orca Enterprises P/L’’ usual credit terms, even though property in the Goods has not passed to the Customer. Consistently with the Customer’s intended use of the Goods, the Customer must keep the Goods in such condition as the Goods were in when supplied, or in such closest condition as can be reasonably maintained. The provisions of this clause 7 will apply irrespective of any arrangement under which Orca Enterprises P/L provides the Customer with credit. These provisions apply to the extent of any inconsistency between the two.
7. Warranty Subject to clause 14 of these Terms, Orca Enterprises P/L warrants that the Goods will conform to the Specifications and will be properly installed. If Orca Enterprises P/L receives notice of a defect in installation or non- conformance with the Specifications within twelve months of installation, it will replace the affected Goods or supply equivalent Goods, repair the affected Goods, pay any reasonable cost of replacement of the affected Goods, pay any reasonable cost of repairing the Goods, provide the services again or pay for the reasonable cost of provision of the services, the choice of which is at its option. The twelve month warranty period may be extended if the Goods are serviced annually by Orca Enterprises P/L (service costs are available on request).
The Trade Practices Act 1974 and corresponding legislation in other jurisdictions in certain circumstances imply mandatory conditions and warranties into agreements (“Consumer Warranties”). This clause does not exclude or limit the application of any Consumer Warranties or other warranties where to do so:
i. would contravene the law of the relevant jurisdiction; or
ii. cause any part of this clause to be void.
The Customer hereby waives and Orca Enterprises P/L disclaims, all other warranties, whether written or oral, express or implied, including but not limited to the Consumer Warranties.
8. Limitation of Liability and Remedies Orca Enterprises P/L liability is limited to the extent described in Section 7 above. Notwithstanding Section 7 above in no event will Orca Enterprises P/L be liable for any of the following: actual loss or direct damage that is not listed in 7 above, damage for loss relating to the Customer’s procurement of substitute products, incidental, special, economic or consequential damages.
9. Termination Orca Enterprises P/L may immediately terminate these Terms if an Event of Default occurs. An Event of Default occurs if:
- (a) the Customer fails to pay any monies due and that failure is not remedied within 14 days after receiving a notice from Orca Enterprises P/L requesting the breach to be remedied; or
- (b) the Customer breaches any other Term and does not remedy that breach within 14 days after receiving a noticefrom the non-defaulting party requesting the breach to be remedied; or
- (c) the Customer becomes insolvent or bankrupt; or
- (d) a notice of deregistration of defaulting party under section 601AA(5) or 601AB(5) of the Corporations Act is given toor in respect of a party; or
- (e) a petition has been presented against the Customer, an order made, a resolution passed or a meeting summoned orconvened to consider a resolution for its winding up;
In the event that the Customer purports to terminate an Order after acceptance of Orca Enterprises P/L’ Quote, Orca Enterprises P/L shall be entitled to accept that purported termination as a repudiation of the Order and shall be entitled to retain or charge to the Customer thirty five percent (35%) of the purchase price being a reasonable pre- estimate of its loss and damage plus a reasonable amount for work already undertaken.
10. Acceleration of Payment All money which the Customer owes Orca Enterprises P/L for Goods (including amounts which would not otherwise be payable until a later date) will become immediately due and payable if the Customer, is a company and an application is made to wind up the Customer or a Receiver, Receiver and Manager, Official Manager, Agent for Mortgagee or an Administrator is appointed in respect of any part of the Customer’s property, or an Inspector is appointed to investigate any of its affairs; or makes an arrangement or composition with its creditors or proposes to do so; or is unable to pay its debts as they fall due; or ceases or threatens to cease to carry on its business; or has execution levied against any of its assets; or has a mortgagee enter, or seek to enter into possession of any of its assets.
11. Severance If any provision of this Agreement shall be held to be invalid or in any way unenforceable, it shall be severed and the remaining provisions shall not in any way be affected or impaired and this Agreement shall be construed so as to most nearly give effect to the parties’ intention when it was originally executed.