Conditions of Sale

Unless the context otherwise requires:
Agreement means these Terms and Conditions of Sale which apply to the supply of Goods by BMS Turfline to Customer;
Customer means the party to whom BMS Turfline has agreed to supply Goods pursuant to the Agreement;

Goods means the goods and/or services agreed to be supplied by BMS Turfline and purchased by Customer pursuant to the Agreement;
GST has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or, if that Act does not exist means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act;
Order means the entry by the Customer on BMS Turfline’s web page of an order for BMS Turfline to supply the Goods;

BMS Turfline means BMS Better Methods Pty Limited ABN 51 120 007 936 trading as BMS Turfline.

2. ORDERS

(a) In order to purchase the Goods, Customer must place with BMS Turfline an Order by submitting the details required in the relevant fields of the order form on BMS Turfline’s webpage setting out a full description of the Goods to be purchased, delivery point and any other information required by BMS Turfline. The Order may be accepted or rejected by BMS Turfline at BMS Turfline’s sole discretion.

(b) A contract shall be formed by and upon BMS Turfline accepting from Customer an Order pursuant to clause 2(a) and each contract shall be governed by the Agreement.

(c) The Agreement shall take precedence over any other representations, agreements, arrangements or understandings relating to the Goods and any matters in connection with the Goods.

(e) Any conditions or terms of purchase submitted by Customer deviating from or inconsistent with the Agreement will not bind BMS Turfline, notwithstanding any statement by Customer that its terms and conditions prevail over the Agreement.

3. PAYMENT OF PURCHASE PRICE

(a) Unless otherwise agreed in writing, BMS Turfline accepts Orders subject to the condition that Customer agrees to pay the purchase price appearing on BMS Turfline’s price list for those Goods current as at the date that BMS Turfline accepts the Order plus any applicable credit account facility fee.

(b) A copy of BMS Turfline’s price list for the Goods is available on BMS Turfline’s webpage. All prices on BMS Turfline’s price list are specified to be in Australian dollars and are subject to alteration without notice.

(c) The total purchase price, unless otherwise stated in the Order, includes GST, delivery charges and packaging but does not include any freight, assembly costs, installation costs, costs and charges of third party suppliers such as electricians, insurance or any statutory, sales, exise, or other taxes, duties or imposts, all of which will be paid by Customer.

(d) Payment of the purchase price and any freight charges must be made in full upon the submission of an Order unless customer has an approved credit account. Additional credit account fees apply to all credit account orders.

(e) Customer must not set off any money owing or alleged to be owing by BMS Turfline against money due by Customer to BMS Turfline. Customer agrees that BMS Turfline is entitled to exercise a right of set off to the extent Customer is indebted to BMS Turfline against any monies due by BMS Turfline on this or any other account.

(g) If Customer does not pay money by the due date for payment, or a payment made by Customer fails to be honoured, without prejudice to any other rights which it may have against Customer, BMS Turfline may claim an accounting and administration fee not exceeding 3½% per month or part thereof from the date of debt becoming over due until the date of payment. The Customer acknowledges that the aforesaid fee is a genuine pre-estimate by the Company of the loss, cost and expenses of the Company which will be incurred by reason of the default in payment and recovery thereof.

4. CANCELLATION OF ORDERS

Customer may not alter or cancel an Order without BMS Turfline’s prior written consent. If BMS Turfline agrees to alter or cancel the Order, Customer will indemnify BMS Turfline against any loss, damage and expense incurred by BMS Turfline in relation to the alteration or cancellation of that Order, including the cost of return freight, return shipping to factory of origin, items purchased from third parties for inclusion in the Goods and all labour and engineering costs incurred by BMS Turfline in the execution or part execution of the Goods and including compensation payable to any of BMS Turfline’s suppliers and loss of profit.

5. RETURN OF GOODS AND CREDITS

(a) Customer is deemed to have accepted the Goods unless it makes a claim in accordance with the clause 5(b).

(b) Customer may reject any Goods that are wrongly supplied or oversupplied by notifying BMS Turfline of the claim and providing full particulars of the claim in writing within 5 days of receipt of those Goods. BMS Turfline may dispute any such claim.

(c) Goods referred to in clause 5(b) may be returned to BMS Turfline for credit if all of the following is complied with:

(i) the Goods are returned to BMS Turfline’s premises by prior arrangement and with BMS Turfline’s written approval within 7 days of delivery, at no cost to BMS Turfline, unless delivered as the result of an administrative error by BMS Turfline, in which case BMS Turfline will bear the cost of return;

(ii) the Goods are accompanied by a dispatch note stating BMS Turfline’s original invoice number and reason for return; and

(iii) the Goods are returned in an unsoiled, undamaged and resaleable condition in their original packing.

(d) Customer must not return any Goods to BMS Turfline unless it has complied with the two clauses immediately above and has done all things necessary to permit BMS Turfline to examine the Goods to BMS Turfline’s satisfaction within that period.

6. DELIVERY AND STORAGE

(a) All quoted delivery or consignment dates are estimates only. BMS Turfline is not obliged to meet such dates and will not be liable to Customer by reason of delays caused by any reason whatsoever.

(b) BMS Turfline is deemed to have delivered the Goods when the Goods are actually delivered to the delivery point nominated by Customer, or where delivery to the delivery point is not made due to reasons which are the responsibility of Customer, the date when delivery would have been effected

(c) BMS Turfline may deliver the Goods by instalments (where, in BMS Turfline’s opinion, this is reasonable) and issue interim invoices to Customer.

(d) Without limiting any other provision of the Agreement, failure by Customer to pay any instalment, or any other amount when due, will entitle BMS Turfline to withhold or delay delivery of any remaining Goods ordered.

7. TITLE AND RISK

(a) Title to the Goods shall remain with BMS Turfline until all monies owing by Customer to BMS Turfline have been paid in full (whether such monies are payable under a specific contract or on any other account).

(b) Until such time as Customer has paid in full all monies owing to BMS Turfline, Customer shall:

(i) store the Goods separately and mark them so that they are clearly and easily identifiable as BMS Turfline’s property and, if Supplier requests, inform BMS Turfline of the location of the Goods;

(ii) hold the Goods as bailee for BMS Turfline, subject to Customer’s right to deal with the Goods in the ordinary course of Customer’s business (Bailment);

(iii) indemnify BMS Turfline against any claim arising out of the possession, use or disposal of the Goods by Customer or repossession or attempted repossession by BMS Turfline.

(c) If:
(i) a payment is not made in accordance with the Agreement;
(ii) Customer commits any other breach of the Agreement;
(iii) Customer becomes bankrupt, has an administrator, a receiver or a receiver and manager appointed, goes into liquidation (whether voluntarily or otherwise), or is wound up, dissolved or declared insolvent,
then BMS Turfline may at any time, without notice to Customer and without prejudice to any other rights that it may have against Customer:
(i) terminate the Agreement and the Bailment;
(ii) suspend some or all its obligations to Customer under the Agreement; and/or
(iii) enter upon any premises owned or occupied by Customer where BMS Turfline reasonably believes the Goods may be stored and repossess the Goods without being liable for any damages caused.

(d) If Customer sells the Goods before payment in full to BMS Turfline, or uses the Goods in a manufacturing or construction process of its own or some third party, Customer holds the proceeds on trust for BMS Turfline in respect of those Goods, and must keep such proceeds in a separate account until the liability to BMS Turfline is discharged and must immediately pay that amount to BMS Turfline.

(e) The risk in the Goods passes to Customer at the time of Delivery.

8. INSURANCE

Customer must keep the Goods insured against all risks for Goods of that kind from the time the risk in the Goods passes to Customer until the time that title to the Goods passes to Customer. Customer holds the proceeds of that insurance on trust for BMS Turfline up to the amount it owes BMS Turfline in respect of those Goods, and must keep such proceeds in a separate account until the liability to BMS Turfline is discharged and must immediately pay that amount to BMS Turfline.

9. LIMITATION OF LIABILITY FOR GOODS

(a) BMS Turfline makes no warranties or representations to Customer, and all warranties implied by law are excluded.

(b) BMS Turfline warrants the Goods to be free from defects in workmanship and materials under normal use and service for a period of 1 calendar year (90 days in the case of all flags) from the date of delivery (Warranty Period). This warranty does not cover costs of recovery of the Goods from the site or damage, fault, failure or malfunction due to external causes including accident, abuse, misuse, mechanical or electrical overload, abrasion, corrosion, incorrect installation, failure to perform required preventative maintenance or normal wear and tear.

(c) During the Warranty Period, to the extent permitted by law, Customer’s sole remedy with respect to breach of warranties set out in the clause immediately above will be to repair or replace (as BMS Turfline may elect) any such defective Goods at BMS Turfline’s expense. The replacement or repaired Goods shall be covered by the unexpired portion of the Warranty Period in respect of the original Goods.

(d) For equipment forming part of the Goods, which equipment is not manufactured by BMS Turfline, the original manufacturer’s warranty will apply. BMS Turfline’s liability for such equipment shall not exceed the liability of the manufacturer.

(e) BMS Turfline’s liability under the Agreement will be reduced by the amount of any contributory loss or damage to the extent caused by Customer’s act or omission.

(f) Customer acknowledges and agrees that, to the extent permitted by law, BMS Turfline has no liability in contract, tort (including negligence or breach of statutory duty), by statute or otherwise for loss or damage (whether direct or indirect) of profits, opportunity, revenue, goodwill, bargain, production, contracts, business or anticipated savings, corruption or destruction of data or for any indirect, special or consequential loss or damage whatsoever.

(g) BMS Turfline’s total liability under any contract and the Agreement shall not exceed the total dollar amount of the Goods purchased by Customer under each contract.

10. MISCELLANEOUS

(a) The fact that BMS Turfline fails to do, or delays in doing, something it is entitled to do under the Agreement, does not amount to a waiver of its right to do it. BMS Turfline must agree in writing to any waiver.

(b) If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from the Agreement, but the rest of the Agreement is not affected.

(c) BMS Turfline shall not be liable for any failure to fulfil or any delay in fulfilling any obligation arising under the Agreement if the failure or delay has been caused directly or indirectly by any act of God, war or other civil commotion, strikes, lockouts, stoppages and restraints of labour, breakdown of machinery, inability to obtain raw materials or fuel, fire or explosion, any government action or any other cause beyond BMS Turfline’s reasonable control and not as a consequence of BMS Turfline’s
negligence.

(d) Any notice to be given to a party under the Agreement must be in writing and must be sent by post, facsimile or email to the address of that party shown in the quotation, Purchase Order or order acknowledgment. Notice is deemed to have been given at the time it would have been received in the normal course of post if sent by post, or if otherwise given at the time it was actually received.

(e) The Agreement is governed by and must be interpreted in accordance with the laws of the State or Territory where BMS Turfline supplies the Goods and the Goods are delivered. Where there are multiple places of supply and/or delivery, BMS Turfline may elect the State or Territory in Australia that shall have jurisdiction over the Agreement. Customer unconditionally submits to the non-exclusive jurisdiction of the courts of the State or Territory determined in accordance with this clause.

(f) Where there is more than one Customer then the liability of each shall be joint and several.

(g) The rights and remedies provided in the Agreement will not affect any other rights or remedies available to BMS Turfline.

(h) Customer shall not assign this Agreement without BMS Turfline’s prior written consent.