Terms and Conditions
1. General
 
1.1 The whole of the Agreement between Australian Florist Sundries Pty Ltd ACN 005 710 083 and the customers are those set out in these Terms and Conditions as amended from time to time by AFS and those, if any, which are implied and which cannot be excluded by law ("Terms"). Any other contractual terms of the Customer (whether upon the Customer's order or elsewhere) which are contrary to or inconsistent with these Terms shall not apply nor shall they constitute a counter-offer. By receiving delivery of all or a portion of the Goods, the Customer shall be deemed to have accepted these Terms and to have agreed that they shall apply to the exclusion of all others. All Goods and packaging are charged at the price prevailing at the date of invoice which is at all times subject to fluctuations, availability and other influences outside AFS's control. Any Goods and Services Tax within the meaning of the A New Tax System (Goods and Services) Act 1999 ("GST") of other government impost shall be payable by the Customer.
2. Credit Terms
 
2.1 Payment is due on or prior to seven (7) days from the date of invoice unless otherwise stated by AFS in writing. AFS may charge liquidated damages at a rate equivalent to one and three quarter percent (1.75%) per month calculated daily if payment is not made by the due date.

2.2 The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) legal costs, services fees resulting from any credit transactions and including any further costs incurred by AFS for enforcement of obligations and recovery of monies due from the Customer to AFS.
3. Delivery & Supply
 
3.1 Any times quoted for delivery are estimates only and AFS shall not be liable for failure to deliver, or for any delay in delivery. The Customer shall not be relieved of any obligation to accept or pay for Goods due to reasonable delay in delivery or dispatch. AFS reserves the right to suspend credit and stop supply at any time if the Customer fails to comply with the Terms.

3.2 The Customer agrees to pay all freight; agent and boxing costs incurred by AFS in delivery or attempted delivery unless otherwise specifically agreed to by AFS. Where delivery is made other than by AFS, the Customer appoints AFS as its agent to arrange delivery and the risk in the Goods supplied shall pass to the Customer at the time the Goods leave the premises for the time being of AFS.

3.3 The Customer requests and irrevocably authorises AFS (or any delivery service arranged by AFS) to enter upon the Customer’s premises and the Customer accepts full responsibility from the moment of delivery. A signed statutory declaration on behalf of AFS or its servants and agents as to delivery having been affected to unattended premises shall be accepted by the Customer as conclusive proof of delivery. The Customer indemnifies and holds harmless AFS in relation to any claim whatsoever or howsoever arising or in any way associated with delivery to or onto the Customer’s premises when unattended including any claim arising from personal injury, loss or theft or otherwise arising and wherever suffered.

3.4 Claims by the Customer for short delivery or Goods damaged in transit must be made in writing within seven (7) days of delivery. Claims will not be accepted if Goods have been used or damaged by the Customer. If AFS concludes that the alleged defective Goods are in fact defective, then AFS shall provide credit for the original invoiced value of those defective Goods only.

3.5 All other claims must be made in writing within fourteen (14) days of delivery except (i) in the case of perishable goods, for which no claims will be accepted after the normal life of the Goods has expired, and (ii) in the case of seasonal goods and goods for special events as determined by AFS, in which case no claims will be accepted after the date of the expiration of relevant season or special event.
4. Property
 
Until full payment has been made for all goods supplied by AFS under these Terms ("Goods"), and any other sums in any way outstanding from the Customer to AFS from time to time:

4.1 All sums outstanding become immediately due and payable by the Customer to AFS, if the Customer makes default in paying any other sums due to AFS, becomes bankrupt, or commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these Terms.

4.2 The property in the Goods shall not pass to the Customer and the Customer shall hold the Goods as Bailee for AFS (returning the same to AFS on request).

4.3 The Customer is only authorised to sell the Goods to third parties on behalf of AFS. All payments received from third parties by the Customer for the Goods shall be held on trust for AFS pursuant to the Bailee/Bailor relationship.

5. Cancellations
 
5.1 No cancellations or partial cancellations of an order by the Customer shall not be accepted by AFS unless it has first consented in writing to such cancellation or partial cancellation and unless a cancellation charge has been paid which, as determined by AFS, will indemnify AFS against all loss, without limitation. Cancellation will not be accepted on Goods that are not regular stock or which have been altered or adapted to meet the Customer’s specific requirements.

5.2 Returns will not be accepted unless AFS has been notified in writing within seven (7) days of the date of invoice and AFS has given its consent in writing and unless payment of a restocking charge of an amount up to 20% of the amount invoiced for the goods (as determined by AFS) has first been paid to AFS provided that no Goods will be accepted for return if they have been added to, modified, varied or changed in any way by anyone other than AFS.
6. Privacy Act 1988 ("Privacy Act")
 
In the event that the customer applies for credit, and to enable AFS to assess the Customer’s application for credit, the Customer authorises AFS:

6.1 To obtain from a credit reporting agency a credit report containing personal information about the Customer and its guarantors pursuant to Section 1 8K(1 )(b) of the Privacy Act;

6.2 To obtain a report from a credit reporting agency and other information in relation to the Customer’s commercial credit activities.

AND in accordance with Section 1 8N(1 )(b) of the Privacy Act the Customer authorises AFS to give to and obtain from any credit provider named in the accompanying credit application and credit providers that may be named in a credit report issued by a credit reporting agency information about the Customer’s credit arrangements. The Customer understands that this information can include any information about its credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act, The Customer understands the information can be used for the purposes of assessing its application for credit (Section 1 8L(4) Privacy Act), assisting it to avoid defaulting on its credit obligations, notifying other credit providers of a default by it and assessing its credit worthiness.
7. Notification
 
The Customer must notify AFS in writing within seven (7) days of:

7.1 Any alteration of the name or ownership of the Customer.

7.2 The issue of any legal proceedings against the Customer.

7.3 The appointment of any provisional liquidator, liquidator, receiver, receiver manager or administrator to the Customer.

7.4 Any change in the ownership of the business name of the Customer. The Customer agrees that it shall be liable to AFS for all Goods supplied to the new owner by AFS until notice of any such change is received.
8. Warranties
 
No warranties except those implied and which cannot be excluded by law are given by AFS in respect of goods or services supplied. Where it is lawful to do so, the liability of AFS for a breach of a condition or warranty is limited to the replacement of the Goods, the supply of equivalent goods, the payment of the cost of replacing the Goods or acquiring equivalent goods as determined by AFS.
9. Legal Construction
 
These Terms shall be governed and interpreted according to the laws of Victoria and AFS and the Customer consent and submit to the jurisdiction of the Courts of Victoria. Notwithstanding that any provision of the Terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the Terms shall continue in full force and effect.