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Welcome to Upton Australia

Terms & Conditions

1:0    SCOPE
1:1    These terms and conditions of sale apply to all contracts of sale entered into by Upton Australia Pty Ltd ("Seller") unless amended in writing and signed by an officer of the Seller. By acceptance of deliveries made in pursuance of any purchase order placed upon Seller, Buyer accepts the terms and conditions contained herein. Seller's failure to object to any term or condition contained in any communication from Buyer shall not be deemed a waiver of these terms and conditions.
1:2    Notwithstanding the foregoing, however, typographical and clerical errors are subject to revision and correction.
1:3    Seller may require any order to be in writing and in such case Seller shall not have any liability until Buyer has placed a written order in terms acceptable to Seller.

2:0    PAYMENT TERMS
2:1    All accounts are COD unless a 30 day end of month (EOM) credit account has been approved.  Credit cards will only be accepted at time of dispatch for all account types.
2:2    Minor defects in the goods shall not entitle Buyer to withhold payment therefore.
2:3    Delay in consignment of any part of an order shall not relieve Buyer of its obligation to accept and pay for the remainder of the order within the Seller’s trading terms.

3:0    PRICES, TITLE AND RISK
3:1    All offers are firm for a period of 30 days from the date thereof, after that time they are subject to confirmation by Seller in writing.
3:2    All sales are ex store point of consignment. Goods will be at Buyer's risk following delivery to such carrier as Seller may engage on buyer's behalf. Freight cost and risk of loss in transit are the responsibility of Buyer.
3:3    Title to and property in the goods shall only pass to Buyer following Seller's receipt of all monies payable by Buyer hereunder.
3:4    All published prices are in Australian Dollar (AUD) and are subject to alteration without notice.   

4:0    TRANSPORT
4:1     A delivery and handling charge applies to all orders with the exception of back-ordered items.
4:2    Unless otherwise required by Buyer, Seller will make transport arrangements as follows: For deliveries within the metropolitan areas of mainland State capital cities a standard freight charge may be added to invoice; goods for delivery outside those areas, seller will select the transport to be used and prepay freight for Buyer. Seller will then bill Buyer for freight at Seller's discretion.  
4:3    Seller does not use Australia Post.  Should the Buyer request goods be sent by Australia post to either a street address or post office box the Buyer acknowledges the Seller is not liable for undelivered goods.

5:0    PAYMENT DEFAULT
5:1    In the event of Buyer making default in payment of breaching any other condition herein or going into liquidation (other than a voluntary liquidation for the purpose of amalgamation or reconstruction) or being declared bankrupt or compounding with its creditors, Seller shall become entitled to withhold its supply services or any outstanding delivery of goods and to determine its contract with the Buyer.
5:2    Additionally in the case of default in payment Seller shall be entitled to charge interest at the rate of 18 percent per annum on all unpaid monies: such interest to be calculated from the due date for payment to the date of actual payment thereof.
5:3    Buyer shall be liable for the costs of all stamp duties, solicitor's fees, process services costs and other disbursements incurred by Seller to recover monies owing by Buyer.  

6:0    DELIVERY TIME
6:1    All quoted delivery or consignment dates are estimates only, given without engagement.
6:2    Delay in consignment of any part of an order shall not relieve Buyer of its obligation to accept and pay for the remainder of the order.
6:3    Except as provided in paragraph 1.2 Seller will not be liable to pay damages or compensation for any injury or loss sustained by Buyer

(i)      in the event of a delay in consignment or delivery of goods; or
(ii)     in the event of non-delivery.

6:4    Goods offered ex-stock by Seller are subject to prior sale.
6:5    In the event of any happening beyond Seller's reasonable control in consequence of which Seller cannot effect consignment by the time or times quoted or specified, Seller shall be entitled to consign part only of an order, suspend consignment or extend the time for consignment, for the period during which such cause of delay operates, or may cancel the order, and in the event of such suspension, extension or cancellation, Seller shall not be liable for damages.  

7:0    ACCEPTANCE & REFUNDS
7:1    Buyer shall accept or reject goods included in each consignment within 7 days from receipt. If Buyer fails to notify Seller in writing of its rejection and the reason therefore within such time period, Buyer will be deemed to have accepted such consignment.
7:2    Returns for any reason cannot be made without prior written authorisation from Seller. Seller will reconsign any unauthorised return to Buyer, freight collect.
7:3    Freight on authorised returns must be prepaid by Buyer. Under no circumstances will Seller accept charges for returns sent freight on with the exception of the Seller having supplied goods incorrectly.
7:4    Indent items are non-returnable and non-refundable.
7.5    Goods purchased from the clearance stock are non-returnable and non-refundable

8:0    WARRANTY
8:1    Seller warrants that the goods, whilst they remain in the possession of the Buyer, will under proper use, be free from defects solely due to faulty workmanship and materials during a period of 12 months from consignment, to the extent that upon authorised return to Seller freight prepaid during that period of any part of the goods covered by this warranty, Seller will if it finds such part to be so defective, at its option repair such part or supply a replacement part provided that:

(i)     The goods or any part are not without Seller's consent altered, repaired or subjected to
         any technical attention by any person other than Seller's authorised representatives.
(ii)    The above terms may at Seller's option be varied or replaced by specific warranty
         conditions issued in respect of particular products.
(iii)   The warranty does not cover damage due to normal wear and tear, improper
         installation, misuse or neglect or where goods have been subjected to operating or
         environmental conditions in excess of maximum values in the applicable specification.

8:2    Except as herein provided, all conditions and warranties in respect of the goods, expressed or implied statutory or otherwise are hereby excluded. Under no circumstances shall Seller be liable to pay compensation for any injury, loss or damage sustained by Buyer howsoever arising.  

9:0    INDUSTRIAL PROPERTY RIGHT
9:1    If any claim shall arise alleging that the sale, use or any other dealing with the goods infringes trade marks, trade names, patents, copyrights, registered designs or any other industrial property rights of third parties, the Customer shall forthwith notify the Company thereof and give every assistance to the Company in connection with such claim as the Company may reasonably require and shall not itself handle, deal with or compromise any such claim except with the written consent of the company.  

10:0  TERMINATION BY SELLER
10:1  Seller shall not be liable for incidental or consequential damages.
10:2  In any event Seller shall be entitled to payment for all products consigned up to the effective date of termination.  

11:0  CANCELLATION BY BUYER
11:1  Except as provided in this clause 12, no order may be cancelled by Buyer
11:2  Buyer may terminate an order for its convenience only to the extent the products were ordered for Buyer's performance of a specific agreement with another and such agreement is terminated for the other's convenience. In such event, products in the possession or control of Seller, whether or not standard, which have been procured by Seller specifically for Buyer's order shall be deemed to be delivered to Buyer.
11:3  The quantity of goods delivered and deemed delivered shall be paid for by Buyer at a unit price equal to Seller's standard catalogue price for such quantity or, if no such price exists, then a comparable price for equivalent products. In such a case, the contract or negotiated price no longer applies.
11:4  Non-standard goods which are in the work-in-process inventory shall be paid for by Buyer at a price based on the percentage of completion of such inventory applied to the order price for finished goods. In addition, Buyer shall also promptly pay to Seller:

(i)     costs of setting and paying claims arising out of the termination of work under Seller's
         subcontracts or orders relating to the goods covered;
(ii)    reasonable costs of settlement, including accounting, legal and clerical costs; and
         indirect costs of production administration and reasonable profit.

11:5  No application for cancellation under this clause will be considered unless made by Buyer in writing to Seller.  

12:0  GOVERNING LAWS
12:1  The validity, performance and construction of the contract between Seller and buyer shall be governed in all respects by the laws of the State of Western Australia and the Commonwealth of Australia.  

13:0  CONSUMER PURCHASES
13:1  Nothing in these terms and conditions of sale shall affect the rights of a buyer who acquired goods as a consumer within the meaning of the Trade Practices Act, or of any other law of the Commonwealth, or of any State or Territory, provided that where the purchaser is a consumer within the meaning of the said Act and the goods are not of a kind ordinarily acquired for personal domestic or household use or consumption, then Seller's liability for breach of condition or warranty implied by the said Act (other than a condition or warranty implied by Section 69) shall be limited to the repair of the goods, or at Seller's option, the replacement of the goods or the supply of equivalent goods.  

14:0  WAIVER
14:1  Seller's failure to insist upon strict performance of any condition herein shall not be deemed a waiver by Seller of any rights which it may have hereunder.