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1. Interpretation

1.1 Unless otherwise inconsistent with the context the word “person” shall include a corporation:

1.2 “goods” shall include services.

1.3 Words importing the singular number shall be deemed to include the plural and vice versa. Words importing the male gender shall be deemed to include the female and neuter gender and vice versa.

1.4 “Kennedy’s Classic Aged Timbers Pty Ltd” shall mean Kennedy’s Classic Aged Timbers Pty Ltd, its successors and assigns.

1.5 “customer” shall mean the person who is purchasing the goods.

1.6 “GST” means any goods and service tax.

2. Offer and Acceptance

2.1 Any quotation made by Kennedy’s Classic Aged Timbers Pty Ltd is not an offer to sell or to provide goods. Kennedy’s Classic Aged Timbers Pty Ltd shall not be bound by any order given in pursuance of any quotation until it is accepted in writing. All orders are subject to acceptance by Kennedy’s Classic Aged Timbers Pty Ltd within thirty (30) days of receipt by Kennedy’s Classic Aged Timbers Pty Ltd of the order. These terms and conditions shall be deemed to be incorporated into any agreement between Kennedy’s Classic Aged Timbers Pty Ltd and the customer. Any terms and conditions contained in any order, offer, acceptance or other document of the customer and all representations, statements, terms and conditions and warranties (whether implied by statute or otherwise) not embodied herein are expressly excluded to the fullest extent permitted by law.

2.2 Insofar as goods or services supplied by Kennedy’s Classic Aged Timbers Pty Ltd are not of a kind ordinarily acquired for personal, domestic or household consumption, the liability for breach of a condition or warranty, implied into this contract by the Sale of Goods Act or the Trade Practices Act (other than a condition implied by Section 69) is limited:

(a) in the case of goods to any one of the following as determined by Kennedy’s Classic Aged Timbers Pty Ltd:

(i) the refund of the price paid by the customer for the goods or the issue of a credit note for such amount; or

(ii) the replacement of the goods or the supply of equivalent goods; or

(iii) the repair of the goods; or

(iv) the payment of the cost of replacing the goods or at acquiring equivalent goods; or

(v) the payment of the costs of having the goods repaired;

(b) in the case of services to any one of the following as determined by Kennedy’s Classic Aged Timbers Pty Ltd;

(i) the supplying of the services again; or

(ii) the payment of the cost of having the services supplied again.

3. Delivery

3.1 Any date quoted for delivery (“the quoted date”) is an estimate only and unless a guarantee shall be given by Kennedy’s Classic Aged Timbers Pty Ltd in writing providing for liquidated damages for failure to deliver by the quoted date Kennedy’s Classic Aged Timbers Pty Ltd shall not be liable to the customer for any loss or damage howsoever arising even if arising out of the negligence of Kennedy’s Classic Aged Timbers Pty Ltd for failure to deliver on or before the quoted date. The customer shall accept and pay for goods and any GST if and when tendered notwithstanding any failure by Kennedy’s Classic Aged Timbers Pty Ltd to deliver by the quoted date. Written advice to the customer that goods are ready for delivery whether in whole or in part shall constitute tendering and the terms of payment shall apply.

3.2 Kennedy’s Classic Aged Timbers Pty Ltd shall not be liable to any customer or any other party for direct or indirect or consequential injury, loss or damage whatsoever by reason or any delay in delivery whether the same is due to the negligence of Kennedy’s Classic Aged Timbers Pty Ltd or any other party, strike or any other industrial action be it of Kennedy’s Classic Aged Timbers Pty Ltd or other party or any other cause whatsoever.

3.3 Kennedy’s Classic Aged Timbers Pty Ltd reserves the right to deliver by instalments. If delivery is made by instalments the customer shall not be entitled:

  1. (a) to terminate or cancel the contract; or
  2. (b) to any claim, loss or damage howsoever arising failure by Kennedy’s Classic Aged Timbers Pty Ltd to deliver any instalments on or before the quoted date.

3.4 It is agreed that Kennedy’s Classic Aged Timbers Pty Ltd shall not be responsible for the delay in delivery caused by, or in any way incidental to an act of God, war, fire, breakages of machinery, strikes or arising out of any other unexpected exceptional cause, or any cause beyond reasonable control of Kennedy’s Classic Aged Timbers Pty Ltd.

3.5 Any quotation containing a provision to supply goods “ex stock” is subject to fulfilment of prior orders at the date of receipt of the customer’s order.

3.6 If the customer intends to pay for the goods via Cash on Delivery (C.O.D.) the goods will not be unloaded from the delivery vehicle or otherwise released to the customer unless payment has been received in full.

3.7 If the customer intends to pay for the goods via a method other than C.O.D. the goods will not be dispatched from Kennedy’s Classic Aged Timbers Pty Ltd’s warehouse or otherwise released to the customer until payment has been received in full.

4. Payment

4.1 The customer shall pay the price of any goods supplied by Kennedy’s Classic Aged Timbers Pty Ltd and any GST in addition to the price.

4.2 Unless otherwise agreed in writing, the customer must attend to payment for the goods in full prior to delivery.

4.3 Payment may be made by any of the following methods:

  1. (a) Cash
  2. (b) Cheque (provided that the full name, address and telephone number of the customer are printed on the back of the cheque)
  3. (c) Credit Card – 1.5% surcharge applied (only Visa and Mastercard are accepted)
  4. (d) Electronic Funds Transfer (please refer to your quote, order or tax invoice for bank account details)

4.4 This term as to the payment shall be of the essence of the contract.

4.5 Kennedy’s Classic Aged Timbers Pty Ltd accepts payment via C.O.D. subject to Clause 3.6

5. Title

5.1 Notwithstanding the delivery of the goods or part thereof, the goods remain the sole and absolute property of Kennedy’s Classic Aged Timbers Pty Ltd as full legal and equitable owner until such time as the customer shall have paid Kennedy’s Classic Aged Timbers Pty Ltd the full price together with the full price of any goods then the subject of any other contract with Kennedy’s Classic Aged Timbers Pty Ltd.

5.2 The customer acknowledges that he receives possession of and holds goods delivered by Kennedy’s Classic Aged Timbers Pty Ltd solely as bailee for Kennedy’s Classic Aged Timbers Pty Ltd until such time as the full price including any GST thereof is paid to Kennedy’s Classic Aged Timbers Pty Ltd together with the full price including any GST of any goods then the subject of any other contract with Kennedy’s Classic Aged Timbers Pty Ltd and such payment has cleared in Kennedy’s Classic Aged Timbers Pty Ltd’s bank account.

5.3 Until such time as the customer becomes the owner of the goods, he will;

(a) store them on the premises separately;

(b) ensure that the goods are kept in good and serviceable condition;

(c) secure the goods from risk, damage and theft; and

(d) keep the goods fully insured against such risks that are usual or common to insure against in a business of a similar nature to that of the customer.

5.4

(a) Until the goods are paid for in full including any GST, the customer may sell the goods however must hold the proceeds of any sale in a separate bank account and upon trust for Kennedy’s Classic Aged Timbers Pty Ltd The customer shall account to Kennedy’s Classic Aged Timbers Pty Ltd from this fund for the full price of the goods including any GST.

(b) Should the customer die, stop payment or call a meeting of its creditors or become insolvent or subject to the bankruptcy laws, or being a company, appoints an administrator or calls a meeting for the purpose of or to go into liquidation or has a winding-up application presented against it or has a receiver appointed, Kennedy’s Classic Aged Timbers Pty Ltd may at its option notwithstanding its waiver of such default or failure and without prejudice to its other rights under this contract, suspend or cancel this contract or require payment in cash before or on delivery or tender of goods notwithstanding the terms of payment previously specified, or may repossess and take over the goods and dispose of the same in its own interest without prejudice to any claim it may have for damages for any loss resulting from such resale.

(c) Until full payment in cleared funds is received by Kennedy’s Classic Aged Timbers Pty Ltd as well as all other amounts owing to Kennedy’s Classic Aged Timbers Pty Ltd under any other contract, in addition to any rights Kennedy’s Classic Aged Timbers Pty Ltd may have under Chapter 4 of Personal Properties and Securities Act 2009 (Cth) (“PPSA”), Kennedy’s Classic Aged Timbers Pty Ltd shall be entitled at any time until title in and to the goods passes to the customer to demand the return of the goods 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 premises where the customer is holding the goods) in order to search for and remove the goods and for this purpose the customer irrevocably licences Kennedy’s Classic Aged Timbers Pty Ltd to enter such premises and also indemnifies Kennedy’s Classic Aged Timbers Pty Ltd from and against all loss suffered or incurred by Kennedy’s Classic Aged Timbers Pty Ltd as a result of exercising its rights under this clause. If there is any inconsistency with Kennedy’s Classic Aged Timbers Pty Ltd rights under this clause 5.4(c) and its rights under the PPSA this clause 5.4(c) prevails.

(d) The customer acknowledges and warrants that Kennedy’s Classic Aged Timbers Pty Ltd has a security interest for (the purposes of the PPSA) in the goods and any proceeds described in clause 5(a) until title passes in accordance with this clause 5. The customer must do anything reasonably required by Kennedy’s Classic Aged Timbers Pty Ltd to enable Kennedy’s Classic Aged Timbers Pty Ltd to register its security interest with the priority that Kennedy’s Classic Aged Timbers Pty Ltd requires and to maintain that registration.

(e) The security interest under this clause 5 attaches to the goods when the customer obtains possession of the goods and the parties confirm that they have not agreed that any security interest arising under this clause 5 attaches at any later time.

(f) If title in and to the goods has not passed to the customer in accordance with this clause 5, the customer’s implied right to sell the goods shall immediately terminate upon the happening of any event of default by the customer.

5.5 Kennedy’s Classic Aged Timbers Pty Ltd’s rights under this Clause 5 secure Kennedy’s Classic Aged Timbers Pty Ltd’s right to receive the price of the Goods and all amounts owing to Kennedy’s Classic Aged Timbers Pty Ltd under any other contract.

5.6 All payments received from the customer must be applied by Kennedy’s Classic Aged Timbers Pty Ltd in accordance with section 14(6)(c) of the PPSA.

5.7 If the customer does not pay for any goods on the due date then Kennedy’s Classic Aged Timbers Pty Ltd is hereby irrevocably authorised by the customer to enter the customer’s premises (or any premises under the control of the customer or as agent of the customer in which the goods are stored) and use reasonable force to take possession of the goods without liability for the tort of trespass, negligence, assault and battery or payment of any compensation to the customer whatsoever.

5.8 On retaking possession of the goods Kennedy’s Classic Aged Timbers Pty Ltd may elect to refund to the customer any part payment that may have been made less any charge for recovery of the goods, or to resell the goods.

6. Risk

Unless otherwise agreed in writing, risk in the goods shall pass to the customer at the time when the goods have been placed on the vehicle which is to effect delivery from Kennedy’s Classic Aged Timbers Pty Ltd store or warehouse. The goods shall remain at the customer’s risk at all times unless and until Kennedy’s Classic Aged Timbers Pty Ltd retakes possession of the goods pursuant to these terms and conditions, at which point the risk shall pass back to Kennedy’s Classic Aged Timbers Pty Ltd when the goods have been placed on the vehicle which is to effect the repossession of the goods.

7. Claims and Returns

7.1 Subject to clause 2.2 herein, Kennedy’s Classic Aged Timbers Pty Ltd shall not be liable for any loss or damage whatsoever and however arising whether direct or indirect or consequential or in respect of any claim whenever and however made for any loss or damage, deterioration, deficiency or other fault or harm in the goods provided by or on behalf of or in any arrangement with Kennedy’s Classic Aged Timbers Pty Ltd or occasioned to the customer or any third party or to his or their property or interest and whether or not due to the negligence of Kennedy’s Classic Aged Timbers Pty Ltd, its servants or agents.

7.2 As soon as any of the facts or matters which form any part of any claim or complaint whatsoever become known to the customer, the customer shall within fourteen (14) days notify Kennedy’s Classic Aged Timbers Pty Ltd in writing of the same.

7.3 Kennedy’s Classic Aged Timbers Pty Ltd shall not be liable in any circumstances for any:

(a) defects or damages caused in whole or in part by misuse, abuse, neglect, improper application, repair or alteration (other than by Kennedy’s Classic Aged Timbers Pty Ltd) or accident;

(b) any transport installation removal, labour or other costs;

(c) details in goods not manufactured by it but Kennedy’s Classic Aged Timbers Pty Ltd will endeavour to pass on to the customer the benefit of any claim made by Kennedy’s Classic Aged Timbers Pty Ltd and accepted by the customer and the benefit of any claim made by Kennedy’s Classic Aged Timbers Pty Ltd and accepted by the manufacturer of such goods under a warranty given by the manufacturer of such goods provided that nothing contained in this subparagraph shall limit the rights of the customer to proceed against Kennedy’s Classic Aged Timbers Pty Ltd pursuant to the Trade Practices Act; and

(d) technical advice or assistance given or rendered by it to the customer or not in connection with the manufacture construction or supply of goods for or to the customer.

7.4 Goods supplied outside the agreed standard and / or description may be refunded at the discretion of Kennedy’s Classic Aged Timbers Pty Ltd.  Goods supplied within standard / or agreed description are not liable for refunds.  At the discretion of Kennedy’s Classic Aged Timbers goods may be accepted for refund if they are in a resaleable condition.  Should this occur a 15% restocking fee will be applicable.

8. Force Majeure

If by reason of any fact, circumstance, matter or thing beyond the reasonable control of Kennedy’s Classic Aged Timbers Pty Ltd, Kennedy’s Classic Aged Timbers Pty Ltd is unable to perform in whole or in part any obligation under this contract, Kennedy’s Classic Aged Timbers Pty Ltd shall be relieved of that obligation under this contract to the extent and for the period that it is so unable to perform and shall not be liable to the customer in respect of such inability.

9. Default

Upon the occurrence of default by the customer in compliance with the terms herein:

9.1 Kennedy’s Classic Aged Timbers Pty Ltd may at its discretion withhold further supplies of goods or cancel the contract, or vary the terms of this contract without prejudice to its rights hereunder PROVIDED HOWEVER that Kennedy’s Classic Aged Timbers Pty Ltd may at any time and from time to time upon such terms as it may determine waive any of its rights under this clause, but without prejudice to its rights thereafter of any of the events herein before referred to or upon the continuation after any such waiver of any state of affairs the subject of such waiver.

9.2 The customer hereby authorises Kennedy’s Classic Aged Timbers Pty Ltd or its agent to review its books and records, including all bank statements and other bank records, to determine whether the customer is able to pay its debts as and when they fall due and the customer further irrevocably grants to Kennedy’s Classic Aged Timbers Pty Ltd a licence to enter upon the customer’s premises for such purpose.

9.3 The customer shall pay to Kennedy’s Classic Aged Timbers Pty Ltd interest at the rate of 1.5% per month on daily balances in respect of any amounts as may from time to time be overdue until paid and such money together with all interest shall be recoverable forthwith from the customer as a liquidated debt.

9.4 Without prejudice to any other right or remedy the customer shall indemnify Kennedy’s Classic Aged Timbers Pty Ltd against any costs, fees, charges and disbursements (inclusive of any GST)charged by any mercantile or collection agent or solicitor engaged for the purpose of the collection or recovery of monies due and payable by the customer to Kennedy’s Classic Aged Timbers Pty Ltd on an indemnity basis and all such costs shall be recoverable as a liquidated debt and, at the option of Kennedy’s Classic Aged Timbers Pty Ltd, may be recovered as a Minor Debt Claim.

9.5 The customer shall pay to Kennedy’s Classic Aged Timbers Pty Ltd an administration fee of $50.00 on the occurrence of every event of default as a liquidated debt being a genuine pre-estimate of the loss of Kennedy’s Classic Aged Timbers Pty Ltd in respect of such act of default, however such fee shall not preclude Kennedy’s Classic Aged Timbers Pty Ltd from claiming any higher amount from the customer for any loss occasioned by such act of default.

10. Change Of Ownership

The customer agrees to notify Kennedy’s Classic Aged Timbers Pty Ltd in writing of any change of ownership of the customer or its business, or of directorships in the case of a corporate customer, or of any other change whatsoever affecting this agreement within seven (7) days from the date of such change and indemnifies Kennedy’s Classic Aged Timbers Pty Ltd against any loss or damage incurred by it as a result of the customer’s failure to notify Kennedy’s Classic Aged Timbers Pty Ltd of any change.

11. Lien and Charge

11.1 The customer hereby acknowledges and agrees that Kennedy’s Classic Aged Timbers Pty Ltd has a lien over all goods in it’s possession belonging to the customer to secure payment of any or all amounts outstanding from time to time.

11.2 The customer hereby charges all property of the customer, both present and future, in respect of any monies that may hereinafter be owing to Kennedy’s Classic Aged Timbers Pty Ltd under this contract by the customer or otherwise and hereby consents to the lodgement of a caveat over the title to any such real property, noting the interest created by this charge and for such purpose authorises Kennedy’s Classic Aged Timbers Pty Ltd or its solicitors to execute any consent form as its attorney for the purpose of registering such a caveat.

12. Confidentiality

Subject to section 275(7) of the PPSA, neither party will disclose the information of the kind mentioned in section 275(1) of the PPSA.

13. Notices under the PPSA

Kennedy’s Classic Aged Timbers Pty Ltd does not need to give the customer any notice under the PPSA (including a notice of a verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.

14. Jurisdiction

14.1 This contract for the supply of the goods is deemed to have been entered into in the State of Queensland. Any legal action arising out of or in respect of the contract and/or the interpretation thereof shall be brought only in the Courts of Brisbane in the State of Queensland and the customer irrevocably submits itself to the jurisdiction of the Courts of Brisbane in the State of Queensland.

14.2 If the subject matter of any dispute arising hereunder is within the jurisdiction of the Queensland Building Tribunal then the customer hereby elects not to have such dispute determined in the Queensland Building Tribunal but instead to have such dispute heard and determined either in the Magistrates, District or Supreme Court according to the jurisdiction of each such court.