POLICIES, TERMS AND CONDITIONS
1. STANDARD TERMS AND CONDITIONS OF SALE
Silvan shall provide the Dealer with the Goods in accordance with the Standard Terms and Conditions of Sale (Schedule A) and the Goods Returned for Credit Policy (Schedule B). Essential terms include the payment of accounts on time and the principle of ownership of the Goods not passing to the Dealer until the Goods are paid for in full. The Dealer acknowledges that Silvan may impose a minimum order value in amounts advised by Silvan. If Silvan determines that an order does not meet the minimum order value, Silvan may impose a handling charge as advised by Silvan.
The Goods shall be provided in accordance with the pricing referred to in Schedule C or such pricing as advised by Silvan from time to time including by posting on its website at www.silvan.com.au/terms
The term commences upon the date of the Silvan letter of account approval and may be terminated by either party upon giving ninety (90) days written notice. Either party may terminate the account if the other party breaches the terms of account approval and fails to remedy the breach within fifteen (15) days of receipt of written notice of the breach. Silvan may immediately terminate the account on the Dealer entering a deed of arrangement with its creditors or upon the appointment of an administrator or liquidator.
4. TERMINATION OF ACCOUNT
If Silvan determines that Silvan and the Dealer cannot agree on the future direction and nature of the relationship, Silvan may give notice of termination of the account by issuing a notice to the Dealer which includes details of Silvan’s determination of the following matters:
a) the treatment of outstanding orders and the terms of supply after termination;
b) the calculation and terms of unpaid accounts; and
c) the treatment of warranty claims after termination.
5. DISPUTE RESOLUTION
Any dispute arising in relation to the meaning, effect or interpretation of the policies, terms and conditions of the account or the execution of the documentation or performance of same shall be resolved pursuant to the terms of the Commercial Arbitration Act 1984 (Vic.).
The account is personal to the Dealer and the Dealer must not, without the prior written consent of Silvan, assign or transfer its rights under the account including any change in the persons having the management or control of the Dealer or any change in the shareholding or proprietorship of the Dealer.
7. SEPARATE PARTIES
The Dealer must not, without Silvan’s prior written consent, enter any contractual relationships or undertakings on behalf of or in respect of Silvan or make any promise, warranty or representation on behalf of Silvan in respect of the Goods. The Dealer is solely responsible for discharging its obligations and liabilities to third parties and has no right to indemnity or contribution from Silvan whatsoever.
Both parties shall keep strictly confidential those matters including commercial and technical matters, technical specifications, trade secrets, and any other matters that have become known to either party through the operation of this account (but excluding public information which is public other than by a breach of confidentiality obligations). This obligation survives any termination or expiry of the account. .
During the term of the account the Dealer shall have a limited non-exclusive, non-transferable, non-sublicensable license to display Silvan’s trademarks for the sole purpose of the distribution of the Goods. The dealer’s licence lapses immediately upon termination of the account, and /or supply to the Dealer. On termination for any reason the Dealer must return to Silvan all copies of trademarks, copyrights, designs and patents and confidential information of Silvan and shall not retain in any form copies or replicas.
The Dealer must undertake such actions as directed by Silvan in order to protect and otherwise enforce Silvan’s rights in respect of its trademarks, copyrights, designs and patents and confidential information.
Any notice required under the policies, terms and conditions of the account shall be in writing addressed to the party to whom it is to be sent at the address or facsimile number from time to time provided by that party in writing to the other party.
11. PRIVACY ACT
The Dealer agrees to Silvan:
a) obtaining information, including any credit report, record, personal information or an opinion that has any bearing on the commercial credit worthiness, commercial activities, credit standing, credit history or credit capacity of the Dealer its guarantors and relevant principals, and using that information for the purpose of assessing this application for credit or the credit worthiness of the Dealer at any time;
b) exchanging information with other credit providers as to the status of the account; and
c) notifying other credit providers of a default by the Dealer.
“Amendment Demand” means a demand that a registration of a Security Interest be amended in accordance with the PPSA.
“Goods” means all goods supplied by Silvan to the Dealer (and where the context so permits shall include any supply of Services as hereinafter defined) and as described in the invoice or any other form provided by Silvan to the Dealer.
“PPSA” means the Personal Property Security Act 2009 (Cth), as amended from time to time.
“Services” means all Services provided by Silvan to the Dealer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
The following terms shall have the meaning given to them in the PPSA:
, “Account”, “Collateral”, “Commingled Goods”, “Control”, “Financing Change Statement”, “Financing Statement”, , “Proceeds”, “Purchase Money Security Interest”, and “Security Interest”.
STANDARD TERMS AND CONDITIONS OF SALE
The following are the Standard Terms and Conditions of Sale for the Goods shown herein.
Should these Standard Terms and Conditions of Sale differ in any respect from the Dealer’s order, acceptance or confirmation then the terms and conditions listed first in the following list will prevail to the extent of any inconsistency:
1. the terms and conditions posted here [www.silvan.com.au/terms],
2. the terms provided by Silvan on its invoice; and
3. these Terms and Conditions.
Where the word “Silvan” appears in these Standard Terms and Conditions of Sale, it means in all cases Silvan Australia Pty Ltd.
Prices: All prices shown are recommended prices only.
Prices and product specifications are subject to alteration without notice.
Purchase discounts (if any) may be allowed at the rates agreed in writing between Silvan and the Dealer.
1. GOODS AND SERVICES TAX
(a) All amounts shown in price lists and invoices are inclusive of GST unless otherwise specifically stated.
(b) Unless an amount is expressed to be GST inclusive, all amounts will be increased by an amount equivalent to the GST payable in respect of such amount.
(c) If Silvan makes a taxable supply in accordance with the GST law, the Distributor must pay the amount specified plus any applicable GST.
Prices shown are ex warehouse from our nearest branch office unless otherwise stated, or where Silvan has agreed to supply Goods free into store.
The risk in the Goods pass to the Dealer on despatch from Silvan's warehouse.
Silvan is not responsible for loss or damage of Goods in transit.
Delivery dates are approximate only Silvan is not liable for any delay from any cause whatsoever. Silvan may extend the time for delivery or if Silvan is unable to complete, the arrangement shall be voidable at Silvan's option with no right to either party for any damage, loss, cost or expense or otherwise.
Unless otherwise stated payment is strictly within thirty (30) days from the end of the month in which the Goods are purchased.
Property in and title to Goods provided from time to time by Silvan to the Dealer remain with Silvan:
(a) until Silvan has received in cleared funds all amounts payable to it; and
(b) even if the Goods become affixed to or incorporated in or Comingled with other Goods and Silvan’s title and security extends to all proceeds received by the Dealer in respect of such Goods.
Silvan, its employees, servants or agents are at liberty to enter upon the Dealer's premises and retrieve Goods which were provided by Silvan to the Dealer where the Dealer has not paid for the Goods or other Goods supplied by Silvan.
Conditions of warranty are detailed on the forms accompanying Goods. Silvan’s warranty covers faulty workmanship and materials and only genuine claims from its servicing agents will be accepted for assessment. Travelling, communication and transportation costs are not covered by warranty and must be borne by the Dealer. Damage during transport is not covered by warranty. Claims should be made directly by the consignee to the carrier.
Any claim against Silvan must be made in writing within fourteen (14) days of delivery (or non-delivery) of Goods. All claims must refer to the invoice number and date and state the reason for the claim.
Goods will only be accepted for credit if they returned undamaged and free into Silvan’s warehouse within fourteen (14) days. A restocking charge may be levied (refer Schedule B).
Goods procured or manufactured to Dealer’s specifications will not be accepted for credit.
No freight charges for Goods returned at the volition of the Dealer shall be acceptable by Silvan unless authorised by Silvan in writing prior to return of the Goods.
Nothing in this agreement shall be construed:
(a) to be a waiver of any of the provisions herein by virtue of the failure on the part of either party hereto to enforce its rights or to exercise any option or discretion herein or to prejudice the later exercise of such rights, options or discretions; and
(b) to extend the application of these Standard Terms and Conditions of Sale beyond that permitted by law. Where a right or remedy which is capable of exclusion, restriction or modification is granted to the Dealer by law, and that law allows Silvan to limit its liability with respect to that right or remedy, then the liability of Silvan is limited solely to, a liability to pay to the Dealer an amount equal to:
(i) the cost of replacing the Goods; or
(ii) the cost of obtaining equivalent Goods; or
(iii) the cost of having the Goods repaired,
whichever is the lowest amount.
7. PERSONAL PROPERTY SECURITIES ACT PROVISIONS
The Dealer acknowledges that these Standard Terms and Conditions of Sale constitute a security agreement which creates a Purchase Monies Security Interest in favour of Silvan over:
(a) all Goods previously supplied by Silvan to the Dealer (if any);
(b) all present and after-acquired Goods supplied by Silvan to the Dealer (or for the Dealer’s account) including products in which goods become processed or Comingled; and
(c) all Proceeds,
as continuing security for payment of the price and all of the Dealer’s outstanding debts and obligations to Silvan.
The Dealer will execute all documents, provide all relevant information and fully cooperate with Silvan with respect to the registration and maintenance of Silvan’s Security Interests.
The Dealer must do anything directed by Silvan to register and/or better secure any Collateral in respect of Silvan’s Security Interest immediately at the Dealer’s cost.
Silvan may take whatever action it thinks is appropriate to ensure that it has first ranking priority in the Collateral.
The Dealer agrees to indemnify Silvan for any costs it incurs with respect to or in connection with Silvan’s Security interests and all amendments, discharge, Registration and exercise of Silvan’s rights.
The Dealer must immediately advise Silvan of any material change in the Dealer’s business practices of selling the Goods or the Collateral which would result in a change to the nature of the Proceeds derived from such sales.
The Dealer must not move the Goods outside Australia without Silvan’s prior written consent whilst the Security Interest remains in force.
The Dealer agrees that nothing in sections 117(3), 130(1)(a) and 143 of the PPSA applies to these Standard Terms and Conditions of Sale and waives its rights to receive a verification statement pursuant to the PPSA.
The provisions of this clause 7 survive termination of any agreement between Silvan and the Dealer.
GOODS RETURNED FOR CREDIT POLICY
Before returning any product to Silvan, a Return Authorisation (RA) number and approval form must be obtained from Silvan Dealer Service by phoning 1300 745 826. Goods WILL NOT be accepted without an RA number and form.
a) Cancellations made on the same day the order was placed:
(i) if the stock has not been dispatched, no handling fee will apply;
(ii) if the stock has been dispatched, a 15% restocking fee will apply;
b) Cancellations made after the day the order was placed, a 15% restocking fee will apply.
2. GOODS RETURN
a) All returns must be requested within fourteen (14) days of the invoice date.
b) Goods will only be accepted for credit if they are returned undamaged and in saleable condition.
c) Return freight will be paid by the Dealer if the Goods are returned at the Dealer’s volition, unless authorised by Silvan in writing prior to return of the Goods.
d) All written claims must reference Silvan invoice numbers, and must be dated and state the reason for the claim.
e) A 15% restocking fee will be applied if the Goods have been dispatched according to the order.
f) Return of Goods valued under $100.00 nett inc GST will not be accepted if they have been dispatched according to the order.
3. PRICING & FREIGHT CREDITS
Pricing and freight credit requests must be made within fourteen (14) days of the invoice date. Any credits after this period for pricing discrepancies will not be accepted.
Claims for freight damage must be made within fourteen (14) days of the invoice date. Please contact Silvan Dealer Service for a Transport Damage Form to complete. Claims received after this period will not be accepted.
All written claims must reference Silvan invoice numbers, and must be dated and state the reason for the claim.
SCHEDULE OF DISCOUNTS
Goods may be supplied to the Dealer at the discounts shown on the attached Confidential Schedule of Discounts, and may be updated on an annual basis.