TERMS AND CONDITIONS OF SALE
1.1 In these Terms and Conditions, unless the context otherwise requires:-
Act means the Australian Consumer Law or any act amending or replacing the Act; Customer means the
purchaser of the Goods specified on the front side of this Invoice; Goods means the products and,
if any, services specified on the front side of this Invoice;
GST means the goods and services tax imposed pursuant to New Tax System (Goods and Services) Act,
Invoice means the tax invoice from the H & M F to the Customer in respect of the Goods appearing
H & M F means Fantid Pty Ltd trading as H & M Ferman – Importers Distributors ABN 67 257 033 716
Boundary Road, Peakhurst, NSW, Australia;
Order means an order to purchase Goods placed by the Customer and accepted by H & M F;
Packing Slip means the packing slip issued by H & M F which accompanies delivery of the Goods to
Terms and Conditions means the Terms and Conditions of Sale set out in this document.
1.2 Nothing in these Terms and Conditions are to be read or applied so as to exclude, restrict
or modify or have the effect of excluding, restricting or modifying any condition, warranty,
guarantee, right or remedy imposed or implied by law (including the Act) and which by law cannot
be excluded or restricted or modified.
2. Terms of Sale
All Orders and other agreements between the Customer and H & M F regarding the sale by H & M F to
the Customer of Goods and all other products sold are whether pursuant to the invoice or at any
time and from time to time in the future and are deemed to be on and subject to these Terms and
3. Acceptance of Terms and Conditions of Sale
3.1 The Customer acknowledges having received and read a copy of the Terms and Conditions.
3.2 H & M F may vary the Terms and Conditions at any time by 7 days notice in writing to the
3.3 The Customer upon placing an Order for the Goods is deemed to have accepted and is bound by
the Terms and
Conditions in respect of the sale and supply of the Goods.
3.4 All rights and obligations of H & M F and Customer in relation to the sale and supply of the
Goods are solely governed by these Terms and Conditions and prevail over all conditions of the
Customer’s Order (including without limitation to those contained in any purchase order received by
H & M F from the Customer), if any, to the extent of any inconsistency. For the avoidance of
doubt, if the terms and conditions of any Order received from the Customer which results in the
sale of the Goods, are in any way inconsistent with or purport to negative any of the provisions of
these Terms and Conditions, including without limitation, any of clauses 13, 14 and 15, then to the
extent of any such inconsistency, these Terms and Conditions prevail and apply.
3.5 These Terms and Conditions can only be waived or varied in writing by H & M F.
4.1 Unless otherwise stated all prices quoted by H & M F are net, exclusive of GST.
4.2 Prices quoted by H & M F are those ruling at the date of issue of any quotation to the
Customer and such prices are subject to change either before the acceptance by the Customer of any
quotation from H & M F or after the quotation has been withdrawn (before acceptance) by H & M F
or after such quotation has lapsed. Under such circumstances H & M F may change the price of the
Goods without notice to the Customer.
4.3 Unless otherwise stated, all amounts payable for the Goods specified in the Invoice, are in
payable in that currency, free of exchange.
5.1 The Customer must pay H & M F for the Goods in full on or before the last day of the month
next followi ng delivery of the Goods, unless otherwise stated on the Invoice. This is an
essential term of these Terms and Conditions.
5.2 The Customer must not set off against the payment due to H & M F under the Invoice for the
Goods any amount the Customer claims for the return of goods (whether in respect of the Goods or
other goods) or for short deliveries, incorrect goods or defective goods.
5.3 If the Customer fails to pay H & M F the purchase price for the Goods, in full (including
any GST) by the date stipulated in clause 5.1 of these Terms and Conditions, then H & M F reserves
the right to charge the Customer interest on the amount outstanding at the highest overdraft rate
of interest on loans not exceeding $100,000.00 charged from time to time by the Commonwealth Bank
of Australia plus two percent (2%) or if H & M F is not permitted by law, for any reason to charge
that rate of interest then H & M F may charge interest on the outstanding amount at the same
rate from time to time prescribed under the Civil Procedure Act, 2005 (NSW) which courts in New
South Wales can impose on judgments awarded in proceedings for the recovery of a debt or damages.
5.4 (a) If the Customer fails for any reason to pay the purchase price (including GST) for
the Goods stated in the
Invoice by the date stipulated in clause 5.1 then H & M F, may withhold delivery of all other goods
(whether the same as or similar to the Goods or not) for which Orders have been placed by the
Customer and accepted by H & M F.
(b) H & M F also reserves the right to not accept any further Orders for any goods placed by the
Customer whilst any part of the purchase price (including GST) stated in the Invoice, remains outstanding.
5.5 If any credit facility provided by H & M F to the Customer, is at any time withdrawn for any
reason, then any moneys owing by the Customer to H & M F for any Goods delivered to the Customer,
prior to the withdrawal by H & M F of the credit facility, becomes immediately payable in full to H & M F.
6.1 If GST applies in respect of any supply made to the Customer under or in connection with
these Terms and Conditions relating to the sale of the Goods, the amount payable for that supply
will be increased by the rate of GST applicable at that time and must be paid by the Customer at
the time of payment of the Goods..
6.2 H & M F warrants that it is registered for an Australian Business Number and GST purposes
at the time of the taxable supply in respect of the Goods is made and the Customer similarly
warrants that it is registered for an Australian Business Number and for GST purposes at the time
of such taxable supply.
6.3 The Customer indemnifies H & M F for any loss it suffers as a result of the Customer not
being registered for GST and/or Australian Business Number purposes. On request by H & M F, the
Customer must produce evidence it is so registered.
7. H & M F’s Quotation
Unless previously withdrawn, any quotation by H & M F in respect of the Goods is open for
acceptance by the Customer within the period stated in it, or if no period is so stated then within
30 days only after the date such quotation is supplied to the Customer. H & M F reserves the
right to refuse any order based on any such quotation within 7 days after receipt of the order.
The cost of any special packing and packing materials used in relation to the Goods requested
and/or specified or directed by the Customer, are the Customer’s expense despite that such cost may
have been omitted from any quotation from H & M F in relation to the Goods.
9. Short Delivery
The Customer waives any claim for shortage of any Goods delivered if a claim in respect of short
delivery has not been lodged with H & M F within 7 days from the date of delivery of the Goods to
10.1 Any performance figures in respect of the Goods given at any time by H & M F are estimates
10.2 H & M F is under no liability for damages for failure of the Goods to attain such performance
figures unl ess specifically guaranteed in writing by H & M F, which H & M F is under no obligation
10.3 Any such written guarantee is subject to recognized tolerances applicable to such figures.
11.1 The delivery time in respect of the Goods made known to the Customer by H & M F are
11.2 H & M F is not liable for any loss, damage or delay (including without limitation any
consequential loss or
damage) occasioned to or suffered by the Customer or its customers arising from late or non
delivery or late installation of the Goods.
11.3 H & M F may at its option deliver the Goods to the Customer in any number of installments
unless at the time the Customer placed its Order for the Goods it notified H & M F, in writing,
that it will not take delivery of the Goods by installments.
11.4 If H & M F delivers any of the Goods by installments, and any one of the those installments
is defective in any respect for any reason:-
(a) it is not a repudiation of the contract of sale formed by these Terms and Conditions; and
(b) the defective installment is a severable breach that gives rise only to a claim for
11.5 The Goods as described in the Packing Slip are deemed to have been delivered to the Customer,
at the time of supply of the Packing Slip to the Customer.
12. Loss or damage in transit
12.1 H & M F is not responsible to the Customer or any person claiming through the Customer for
any loss or damage to Goods in transit caused by any event of any kind by any person (whether or
not H & M F is legally responsible for the person who caused or contributed to that loss or dam
12.2 H & M F must provide the Customer with such assistance as may be necessary to press claims on
carriers so long
as the Customer:-
(a) has notified H & M F and the carriers in writing immediately after loss or damage is
discovered upon receipt of the Goods; and
(b) lodges a claim for compensation on the carrier within 7 days of the date of receipt of the
13.1 Subject to any requirements of the Act and these Terms and Conditions, H & M F’s liability
for such of the Goods manufactured by it is limited to making good any defects by repairing the
defects or at H & M F’s option by replacement, within a period, not exceeding 12 calendar months
after the Goods have been dispatched to the Customer, so long as:
(a) defects have arisen solely from faulty materials or workman ship;
(b) the Goods have not received maltreatment, inattention interference or electrical overlo
ad; (c) accessories of any kind used by the Customer are manufactured or approved by H & M F;
(d) the seals of any kind on the Goods remain unbroken; and
(e) the defective parts are promptly returned free of cost to H & M F.
13.2 In respect of such of the Goods which are not manufactured by H & M F the warranty or
guarantee of the manufacturer of those Goods is accepted by the Customer and is the only warranty
or guarantee given to the Customer in respect of the Goods. H & M F agrees to assign to the
Customer on request made by the Customer the benefit of any warranty or entitlement to the Goods
that the manufacturer has granted to the H & M F under any contract or by implication or
operation of law to the extent that the benefit of any warranty or entitlement is assignable.
13.3 H & M F is not liable for and the Customer releases H & M F from any claims in respect of
faulty or defe ctive design of any of Goods supplied unless such design has been wholly prepared by
H & M F and the responsibility for any claim has been specifically accepted by H & M F in
writing. In any event H & M F’s liability under this clause 13.3 is limited strictly to, at H & M
F’s option, the replacement of defective parts or the replacement of the Goods in accordance with
clause 13.1 of these Terms and Conditions.
13.4 Except as provided in these Terms and Conditions and to the extent permitted by law, all
express and implied warranties, guarantees and conditions under statute or general law as to
merchantability, description, quality, suitability or fitness of the goods for any purpose or as to
design, assembly, installation, materials or workmanship or o the rwise are expressly excluded
and negatived. H & M F is not liable for physical or financial injury, loss or damage or for
consequential loss or damage of any kind arising out of the supply, layout, assembly, installation
or operation of the Goods or arising out of H & M F’s negligence or in any way whatsoever.
13.5 H & M F’s liability for a breach of a condition or warranty implied by the Act in respect of
the supply of Goods or any services which are not of a kind ordinarily acquired for personal,
domestic or household use or consumption, is limited to any one or more of the following:
(a) the replacement of the Goods or the supply of equivalent goods;
(b) the repair of the Goods; or
(c) the payment of the cost of replacing the Goods or of acquiring equivalent goods; (d) the
payment of the cost of having the Goods repaired; and
(e) in the case of services, supplying the service again or payment of the cost of having the
services supplied again.
13.6 H & M F has taken every care to provide to the Customer technical, parts suitability or
general advice and or
assistance in connection with the Goods which is fit for the purpose but H & M F does not assume
any liability for any error or omissions in connection with the provision of any such advice.
The Customer must observe H & M F’s instructions or the manufacturer’s instructions in relation to
the proper installation of the Goods.
13.7 (a) If the Customer claims any of the Goods are defective and the subject of a warranty claim
in accordance with
this clause 13, then H & M F reserves the right to have the claimed defective Goods inspected and
assessed, at H & F’s cost and expense, by a suitably qualified person (the Expert) whom H & M F can
request to supply a report evaluating, amongst other things:-
(i) the nature of the defects in the Goods complained of;
(ii) the cause or probable cause of such defects and if in the opinion of the Expert the
defects have been caused by any of the matters referred to in sub-paragraph (a) to sub-paragraphs
(e) inclusive of clause 13.1;
(iii) if such Goods (or any of them) should to be repaired and how; and
(iv) if such Goods (or any of them) should be replaced (Evaluation Report).
H & M F must supply a copy of the Evaluation Report to the Customer within 14 days of receipt of it
from the Expert.
(b) Subject to clause 13.7(c) of these Terms and Conditions, H & M F and the Customer agree to
be bound by any of the findings and recommendations contained in the Evaluation Report unless
either H & M F or the Customer can establish that the Evaluation Report contains patent errors
which affect its findings.
(c) If the Evaluation Report contains findings that the Goods (or some of them) are defective
then as long as the
defects were not caused or contributed to by any one or more of the matters referred to in
sub-paragraphs (a) to (e) inclusive of 13.1 of these Terms and Conditions, and also subject to the
limitation of liability on the part of H & M F in relation to the rectification of the claimed
defective Goods, contained in this clause 13, H & M F will as determined by H
& M F in its absolute discretion implement the recommendations for either rectification or
replacement of the claimed defective Goods set out in the Evaluation Report.
(d) If H & M F elects to obtain an Evaluation Report then the Customer must:-
(i) promptly deliver to H & M F’s nearest warehouse or such other place as H & M F nominate,
for inspection by the Expert of the Goods claimed to be defective;
(ii) promptly supply such information and respond to such queries as the Expert may request or
raise with the Customer in relation to the Goods claimed to be defective;
(iii) do all such things as may be reasonably required by the Expert to enable the Expert to
prepare the Evaluation Report.
(e) Nothing in this clause 13.7 obliges H & M F in respect of any claim by the Customer that the
Goods contain defects, to obtain an Evaluation Report.
14. Rights in relation to goods – Retention of title
(a) 14.1 (a) H & M F reserves the following rights in relation to the Goods o r o t h e
r p r o d u c t s delivered to or at the direction of the Customer (and whether by one or more
consignment) whether at or about the date of the Invoice or at any time and from time to time in
the future until such time as H & M F has received payment in full of the purchase price for the
Goods, namely:- (i) ownership of the Goods; (ii) to enter the Customer’s premises (or the
premises of any associated company or agent where the Goods are located) without
liability for trespass or any resulting damage and retake possession of the Goods; and (iii)
(iii) to keep or resell any of the Goods repossessed pursuant to paragraph (a) of this
(b) For the avoidance of doubt title to the Goods only passes to the Customer upon payment in
full to H &M F by the
Customer of the Goods delivered.
14.2 (a) If the Goods or other products supplied by H & M F at any time and from time to time
in the future are re-sold at any time before title in the Goods or such other
products pass to the Customer, the proceeds of such sale will be received and held by the
Customer on trust for the Customer (to the extent of the Customer’s indebtedness to H & M F) and
the Customer (to the extent of the balance, if any).
(b) If products manufactured using the Goods are sold, by the Customer, the Customer shall
hold such part of the proceeds of any such sale as represents the invoice price of the goods sold
or used in the manufacture of the Goods sold in a separate identifiable account as the beneficial
property of H & M F and shall pay such amount to H & M F upon request. Notwithstanding these
provisions, H & M F shall be entitled to maintain an action against the Customer for the
purchase price and the risk of the Goods shall pass to the Customer upon their delivery to the
Customer or at its direction.
14.3 (a) A term used in this clause 14.3 that is defined in the Personal Properties Securities Act
2009 (Cth) (PPSA) has the meaning given to it in the PPSA, unless that term is
otherwise defined in these Terms and Conditions. (b) If during the term of these Terms and
Conditions, the PPSA applies, then; (i) the Customer grants to H & M F a purchase money security
interest (PMSI) under the PPSA in respect of all Goods supplied to the Customer pursuant to these
Terms and Conditions including all products supplied by H & M F to the Customer from time to time
in the future and which are not the goods subject of the Invoice to the intent that the PMSI
granted by the Customer to H & M F is in relation not only to the goods specified in the Invoice
but all other products at any time and from time to time supplied by H & M F to the customer; (ii)
the security interest created under these Terms and Conditions is a continuing and
a subsisting security interest in all Goods supplied under these Terms and Conditions with priority
over any registered or unregistered security and any unsecured creditor; and (iii) the Customer
consents to H & M F registering its PMSI under the PPSA and will do all things reasonably necessary
to assist H & M F to register its security interest.
(c) The Customer waives the right to receive verification of the registration pursuant to section
157(3)(b) of the PPSA. (d)
If the Customer defaults on any sum due for payment under these Terms and Conditions, H & M F has
the right to seize the Goods after giving written notice to the Customer of H & M F’s intention to
seize the Goods.
(e) If H & M F seizes Goods in accordance with clause 14.3(d), H & M F is entitled to: (i) dispose
of the Goods; (ii)retain
the Goods; or (iii) deal with the Goods in any way it sees fit. H & M F is not required to give the
Customer notice of its intention to dispose or retain the Goods.
(f) If H & M F elects to dispose of the Goods in accordance with clause 14.3(f), H & M F: (i) will
exercise all reasonable care to obtain at least market value or obtain the best price that is
reasonably obtainable at the time of disposal, having regard to the circumstances existing at
that time; and (ii) will not be required to provide a statement of account for each period after
seizing the Goods, until it is disposed of.
(g) If H & M F exercises any of its rights under clauses 14.1 and 14.2 of these Terms and
Conditions, clauses 14.1 and
14.2 prevail and will override clauses 14.3(d), 14.3(e) and 14.3(f) to the extent of any
(h) The Customer has an obligation to give H & M F notice if another party with a security interest
in the Goods sei z es or otherwise deals with H & M F’s PMSI in the Goods in a way that might
impact H & M F’s PMSI.
(i) If the Customer grants any security interest in the Goods to another party, the Customer can
only do so if H & M F’s
PMSI status is preserved and the other party must acknowledge the priority of H & M F’s PMSI.
(j) H & M F and the Customer agree that the following provisions of the PPSA do not apply to these
Conditions: (i) section 95, to the extent that it requires the secured party to give a notice to
the grantor; (ii)sections
96; 123; 125; 126; 128; 129; and (iii) section 130, to the extent that it requires the secured
party to give a notice to the grantor; (iv) sections 132(3)(d); 132(4); 134(1); 135; 142 and 143
(k) the provisions of this clause apply to all Goods referred to in the Invoice and all other
products which might be supplied by H & M F from time to time after the date of the Invoice to the
15. Returned Goods
15.1 H & M F may in its absolute discretion accept a return of the Goods from the Customer and
issue a credit note for them but only under the terms of this clause 15.
15.2 Under no circumstances will H & M F accept a return of the Goods more than 30 days after the
earlier of the date of the Invoice and the date of delivery of the Goods to or at the direction of
15.3 (a) Any Goods agreed to be accepted for return by H & M F must be returned by the Customer in
their original form and original packaging and all freight, carriage and handling charges in
relation to the return of the Goods to H & M F are at the Customer’s sole expense.
(b) The Customer when returning any Goods whether pursuant to a warranty claim or for exchange or
accepted by H & M F for return for any other reason, must prevent the Goods from being
damaged (if not delivered in any way, damaged, to the Customer) or further damaged (if
delivered damaged to the Customer) as the case may be, when being returned to H & M F.
(c) Subject to the Act or any other law, if any such Goods returned to H M & F are damaged or
further damaged, as the case may be, upon return to H & M F, due to inadequate packaging, improper
handling or for any other reason (other than any act or omission by H & M F), the Customer must
indemnify H M & F and at all times keep H M & F indemnified from and against all costs and
expenses, loss and/or damage in respect of or arising from or in connection with such damage or
15.4 (a) Goods that have been returned to H & M F by the Customer for credit on the Customer’s
account and with the request for the issue of a credit note by H & M F in favour of the Customer
(Returned Goods) are not deemed to have been accepted by H & M F for the issue of such credit note
unless and until H & M F has elected to provide the Customer with a credit on its account and has
actually issued a credit note to the Customer in relation to all or some of those Returned Goods.
(b) Subject to the Act or any other law, H & M F may accept or reject any of the Returned Goods by
the Customer for credit on the Customer’s account, in accordance with these Terms and Conditions.
(c) Subject to the Act or any other law, to enable H & M F to give proper consideration to any
request by the Customer for the issue of a credit note in relation to the Returned Goods, the
Customer must deliver to H & M F with the Returned Goods copies of all invoices issued by H & M F
at or about the time of original delivery to the Customer of the Returned Goods and must supply all
such other documentation and information H & M F may reasonably request to enable H & M F to make
an informed determination in relation to the Customer’s request for the issue of a credit note in
respect of the Returned Goods.
No Order may be canceled by the Customer except with the consent (which H & M F
in its absolute discretion can refuse to give) in writing of H & M F and on terms which indemnify
H & M F against all losses resulting from any agreed cancellations of the Order.
17. Variation to Terms and Conditions
These Terms and Conditions may only be varied by
agreement in writing between H & M F and the Customer and in the event that H & M F and the
Customer have agreed in writing to vary any of the Terms and Conditions, then the Terms and
Conditions are varied only to the extent of the agreed variation.
(a) If: (i)the Customer fails to comply with these Terms and Conditions or any other
contract or agreement with H & M F; (ii) execution is levied against the assets of the Customer for
an amount in excess of $1,000.00 and is not satisfied; (iii) the Customer commits an act of
bankruptcy; (iv) the Customer enters into any composition or arrangement with its
creditors; (v) the Customer does anything which would make it liable to be put into liquidation;
(vi) a resolution is passed or an application is made for the liquidation of the Customer, or (vii)
a receiver, voluntary administrator, or other form of insolvency administrator or statutory or
the official manager is appointed over all or any of the Customer’s assets (viii) then, in such event,
the Customer will be deemed in default under this contract for the sale of the Goods and H & M F
may, at its option withhold further deliveries of the Goods or any other goods without notice and
without prejudice to its rights under these Terms and Conditions.
(b) If an event described in clause 18(a) occurs, all amounts payable by the Customer to H & M F
will immediately become due and payable notwithstanding that the due date for payment has not
19. Place of Contract and Jurisdiction
19.1 The contract for the sale of the Goods is made in the State or Territory of Australia from
which the Invoice has been issued.
19.2 H & M F and the Customer agree to submit all disputes arising between them to the courts of
such State or
Territory and to any court competent to hear appeals from those courts of the first instance.
20.1 If any clause or part of any clause of these Terms and Conditions is in any way unenforceable,
invalid or illegal, it is to be read down so as to be enforceable, valid, and legal. If this is not
possible, the clause (or possible, the offending part) is to be severed from these Terms and
Conditions without affecting the enforceability, validity or legality of the remaining clauses
(or parts of those clauses) which will continue in full force and effect.
20.2 Any delay by either party in exercising any rights conferred by these Terms and Conditions
does not constitute a waiver of that right, nor will any waiver (either wholly or in part) by a
party of any particular right operates as a waiver of it or any other right of that party.
20.3 Any errors or omissions appearing on the front side of this Invoice are expressly excepted.
H & M F may at any time, up to 12 months after the date of the Invoice, issue a replacement Invoice
which rectifies any error or omission contained in the original Invoice.
20.4 To the extent of any material inconsistency between the Terms and Conditions appearing on the
Invoice and those appearing on the Packing Slip, the Terms and Conditions appearing on the Invoice