Sales and Delivery Terms and Conditions
Application of Terms and Validity of Contracts
A contract will only be formed between the Buyer and Commercial Christmas when an Order from the Buyer is received by Commercial Christmas and accepted by Commercial Christmas in writing or by execution of the Order by Commercial Christmas this can be electronically or by other forms.
These Terms apply to every contract where Commercial Christmas is the supplier of products or services of both, except where Commercial Christmas agrees in writing signed by the director of Commercial Christmas that all, or part, of these Terms do not apply. Where there are inconsistencies between these Terms and terms contained in any Order, these Terms prevail.
Quotations, offers and estimates given by Commercial Christmas may be subject to alteration by Commercial Christmas.
Orders received by Commercial Christmas cannot be cancelled without Commercial Christmas’s written consent.
Commercial Christmas reserves the right to correct any significant errors or omissions of any kind in its offers, quotations, Order confirmations or invoices, and the correction will be binding on Commercial Christmas and the Buyer.
The Prices charges for the Services and/or Goods will be as specified in the Order or as otherwise agreed in writing, signed by the director of Commercial Christmas.
At any time during the term of the contract, Commercial Christmas reserves the right to vary selling prices to take account of any change to the costs of manufacture or supply prevailing at the time of quotation.
Unless otherwise stated in the quotation, fees quoted are ex works despatching Commercial Christmas warehouse and do not include freight costs.
GST and Payment
Unless otherwise agreed in writing fees quoted by Commercial Christmas are exclusive of GST.
If GST is payable by Commercial Christmas on any supply made under the Contract the Buyer will pay to Commercial Christmas an amount equal to the GST payable on the Supply. That amount will be paid at the same time the consideration for the supply is payable under the Contract and will be paid in addition to the consideration. Commercial Christmas will provide the Buyer with a Tax Invoice in respect of the Supply.
Commercial Christmas will use its best endeavours to effect delivery in the time stated (if a time is stated in writing).
Commercial Christmas may at its option cancel the contract or any unfulfilled part or extend the time for its performance or completion by the time lost because of the event preventing or delaying delivery by reason of: (a) inability to obtain supplies of materials or parts from approved sources; (b) any strike, shortage of labour or lockout (c) war, riots, accident, civil commotion, fire, Act of God; or (d) any other event whatsoever beyond the reasonable control of Commercial Christmas Services
Unless otherwise agreed in writing the Buyer will bear all costs associated with delivery. Delivery is deemed to occur when the products are unloaded at the Buyer’s premises.
Unless Commercial Christmas agrees in writing, signed by the director of Commercial Christmas, if the Buyer fails or refuses or indicates to Commercial Christmas that it will fail or refuse, to take or accept delivery then the products will be deemed to have been delivered when Commercial Christmas was ready, willing and able to deliver them.
The Buyer acknowledges and agrees that until it has paid, in cleared funds, to Commercial Christmas the full purchase price of all products supplied by Commercial Christmas and all moneys otherwise owing by the Buyer to Commercial Christmas for any reason whatsoever: (a) the Buyer holds the products as bailee for and on behalf of Commercial Christmas; (b) as between Commercial Christmas and the Buyer, Commercial Christmas retains full title and ownership in all products supplied to the Buyer; (c) for such time as the Buyer retains possession of the products, the Buyer must: (i) insure them for the full purchase price; (ii) store them securely and in such manner that they may be identified as the property of Commercial Christmas and easily removable by Commercial Christmas; and (iii) ensure the products are properly maintained in the condition in which they were delivered and must make good any damage or deterioration.
If a default event occurs, then: (a) all moneys accrued, owing or remaining unpaid by the Buyer to Commercial Christmas will become immediately due and payable without the need for any demand by Commercial Christmas and the security interest constituted by this agreement will become immediately enforceable; (b) the Buyer must not sell or otherwise deal with any products in its possession; (c) Commercial Christmas may cease performance of and cancel any unperformed contract for the sale of products, reserving all of Commercial Christmas’s rights and remedies against the Buyer, without being liable for any loss suffered by the Buyer as a result of the cancellation of the contract.
Liabilities and Warranties
The products will be at the Buyer’s risk after delivery, notwithstanding that delivery of the products may be staggered or that the Buyer may not have signed a receipt for the products.
To the extent that the Buyer acquires products from Commercial Christmas, the Buyer may have certain rights and remedies that cannot be excluded, restricted or modified by agreement (Non-Excludable Obligations).
Except to the extent of the Non-Excludable Obligations, Commercial Christmas’s liability to the Buyer arising, directly or indirectly, under or in connection with these Terms, and whether arising under any indemnity, statute, in tort (for negligence or otherwise), or on any other basis in law or equity is limited as follows: (a) Commercial Christmas will have no liability whatsoever to the Buyer for any: (i) loss, harm, liability, damage, cost or expense (including legal fees) suffered by the Buyer (ii) any and all special, indirect, consequential, exemplary or punitive loss or damage; and (iii) any and all economic loss, loss of contract, profit, revenue, opportunity, production, production stoppage, goodwill, reputation, overhead costs, anticipated savings or data; and (b) the aggregate of Commercial Christmas’s liability to Buyer is otherwise limited to an amount not exceeding consideration for the products paid by the Buyer under these Terms.
In relation to Non-Excludable Obligations, Commercial Christmas’s liability to the Buyer for a failure to comply with any Non-Excludable Obligation is limited to the lowest of the cost of: (a) replacing the products; (b) supplying equivalent products; or (c) having the products repaired.
To the extent permitted by law, and without limiting any other rights of Commercial Christmas, the Buyer must indemnify, and on demand reimburse, Commercial Christmas and keep Commercial Christmas indemnified against all claims, suits, actions, demands, loss, costs, expenses (including legal expenses on a full indemnity basis), judgments and awards made against Commercial Christmas or incurred by Commercial Christmas to the extent that such liability, cost, expense or loss is caused by (a) a breach of these Terms or any contract by the Buyer; (b) any negligent act or omission, by the Buyer or any of its officers, employees, contractors or agents; or (c) Commercial Christmas repossessing the products or enforcing other any rights Commercial Christmas has under these Terms and Conditions, or at law.
Unless otherwise agreed in writing, all faults must be reported in writing to Commercial Christmas within 12 months of purchase under our 12-month warranty Terms and Conditions. The Buyer must bear the expense of making the claim, the cost of all freight, call-outs, labour and other items. These will be charged to the Buyer at standard Commercial Christmas rates.
Notification of Faults
The Buyer must notify Commercial Christmas of any shortages in any delivery of products within 48 hours after delivery. Failure to so notify Commercial Christmas will result in the loss of any rights the Buyer may have against Commercial Christmas for the shortage.
The Buyer must within seven days of each delivery of products give notice to Commercial Christmas of any matter or thing not in accordance with the conditions of the supply contract other than because of any shortage. Failing such notice, the products delivered will be deemed to be in all respects in accordance with the contract and the Buyer will be bound to accept and pay for the same.
Any legal disputes Shall be deemed to Arise out of NSW and fall in the Jurisdiction of the NSW Courts or Tribunals.