Terms and Conditions of Trade for the Supply of Goods & Services to Customers
(hereinafter referred to as “Terms”, “Goods” and “the Customer”)
Unless otherwise agreed in writing these Terms apply to all dealings between the Company and the Customer.
- Order, Quotation Offer and Acceptance
- Whilst the Company may accept verbal or phone orders at their sole discretion these must be confirmed in writing within 7 days and/or before delivery as defined herein.
- Any terms or conditions of the Customer’s order deviating from or inconsistent with these Terms are expressly excluded and rejected by the Company. This exclusion and rejection includes any statement by the Customer that the Customer’s terms and conditions shall prevail.
- Any quotation, estimate or other pricing document provided by the Company is not an offer to provide Goods.
- The Company reserves the right to charge a minimum order value of $100.00 per order and may alter the minimum value at its discretion and charge the minimum value for any orders placed by the Customer.
- A binding contract will be established immediately the Customer instructs the Company to commence supply of Goods and/or order Goods from its principals, external suppliers and/or when the Company manufactures or instructs an external supplier to manufacture, assemble or install components, mechanisms or other items and the Customer will be liable for all costs in the event of cancellation.
- “The Customer” is the person, company or body that instructs the Company to supply the Goods and warrants they have the authorisation needed to do so.
- If more than one party has entered into any agreements with the Company they shall be jointly and severally liable for all amounts owing to the Company.
- The Customer agrees that in the event of any dispute concerning an order (including any question of identity or authority or validity of any telephone, facsimile or email order) that the internal records of the Company will be prima facie evidence of what was ordered and who placed the order.
- Each order placed by the Customer shall and be deemed to be a representation by the Customer that it is solvent and will remain solvent and able to pay its debts as and when they fall due. Failure to pay the Company in accordance with these Terms shall be deemed to be prima facie evidence that the Customer had no reasonable grounds for making a solvency representation and that the representations were unconscionable, misleading and deceptive.
- When any order is placed the Customer shall inform the Company of any facts which could affect the commercial decision by the Company to accept the order and or grant credit. Failure to do so by or on behalf of the Customer shall create and be deemed to create an inequality of bargaining position and be deemed to constitute the taking of an unfair advantage of the Company and to be unconscionable, misleading and deceptive thereby rendering the person placing or authorising the order to be liable to pay all moneys owed by the Customer to the Company.
- Price & Payment
- Estimates are not quotations and are subject to change. Unless stated otherwise GST and other applicable taxes shall be added to the price.
- If a written quotation has been provided to the Customer which the Customer fails to accept within the period specified on the quotation, or within seven days if no period is shown, the Company reserves the right to adjust the price.
- If the Customer requires urgent completion of an order and unless the urgency has been provided for in the quotation, the Company reserves the right to increase the price to cover overtime and other extra costs incurred.
- In the event that the Company issues a price list such price list is subject to change without notice and the Company reserves the right to apply revised prices to orders not already invoiced or delivered to the Customer.
- The Company may require a non-refundable deposit before ordering Goods or delivering Goods to the Customer.
- If no specific payment terms have been agreed payment must be made immediately upon request by the Company, time being of the essence as to this obligation.
- Payment shall only occur when cleared funds from the Customer have been received by the Company for all amounts outstanding.
- If the Company agrees to accept payment by credit card the Company reserves the right to recover the credit card commission.
- The Company may at its sole discretion and without prejudice to its other rights and remedies withhold supply and demand immediate payment of all amounts owing if the Customer’s account is overdue or the Company is concerned over the Customer’s ability to pay.
- The Company can demand immediate payment of any or all amounts owing even if they are not currently due if the Customer becomes (or appears to be) insolvent, proposes or enters into an arrangement with creditors or an administrator, receiver, liquidator or similar person is appointed in respect of the Customer or any asset of the Customer.
- Default, Interest, Costs and Penalties
- The Company shall be entitled to charge interest at 2.5% a month from the day the account becomes overdue and compounded monthly until all outstanding moneys have been paid in full.
- If an account is more than thirty days overdue, administration costs of $50.00 or 10% (whichever is greater) up to a maximum of $250.00 shall be charged to the Customer for each month the account remains unpaid.
- The Customer shall indemnify and reimburse the Company for all costs and disbursements in collecting outstanding debts from the Customer which shall include dishonour fees, full legal costs on a solicitor/own-client basis, collection agency costs, investigators costs, court, judgement enforcement and bailiff fees, search agent costs, time, travel and all other collection costs.
- If the Customer breaches any of its obligations the Company may exercise all or any of its rights plus suspend or terminate the supply of Goods/Services and the Company will not be liable for any alleged loss or damage suffered by the Customer or any other parties as a result of exercising its rights.
- The Company can issue proceedings to recover the price of the Goods even if ownership has not passed to the Customer.
- The Company may sell any property of the Customer which it holds to offset money owed by the Customer and is not liable for any alleged losses by the Customer or other parties as a consequence of such sale.
- The Company reserves the right to deliver part orders at its discretion.
- If the Customer requests the Company to deliver the Goods to the Customer’s premises or to other locations or requests that a carrier collects the Goods, delivery shall take place when the Goods leave the Company premises and the third party and/or carrier is deemed to be the Customer’s agent.
- Delivery of Goods collected by the Customer takes place when the Customer collects the Goods from the Company’s premises.
- Unless otherwise specified in the price and/or in the Company’s quotation the Customer is responsible for all delivery costs.
- The Customer shall not be relieved from its obligations to the Company for any delay in delivery.
- The Company accepts no responsibility for any losses or alleged losses occurring as a consequence of any delay in delivery or for any losses or alleged losses arising from the Company’s inability to deliver the Goods.
- A certificate or delivery docket purporting to be signed by an officer or agent of the Customer confirming delivery shall be prima facie evidence of delivery.
- Force Majeure
The Company shall not be liable for any default or delay in delivery of Goods or the performance of services due to any act of God, war, power or equipment failure, terrorism, industrial action, fire, flood, storm, tempest or any other events beyond the Company’s control.
- Claims & Returns
- Claims and defect requests must be notified to the Company within seven (7) working days of delivery (time being of the essence) specifying the alleged defect and no claims shall be accepted by the Company thereafter.
- No Goods will be accepted for return unless agreed in writing by the Company prior to return and then only upon conditions acceptable to the Company. Returns are at the Customer’s entire risk for loss or damage and the Customer shall pay the insurance and freight costs.
- The maximum liability of the Company for any and all claims made by the Customer or any other parties shall not exceed the purchase price received by the Company for the Goods.
- A 10% restocking fee shall be payable by the Customer for undamaged Goods that the Company has agreed to accept for return.
- The warranty on all Goods supplied by the Company shall be the warranty, if any, provided by the manufacturer of those Goods and the Company shall have no further obligations save those prescribed by law that entitle persons or entities to product replacement, repair or a refund if payment for the Goods has been received in full by the Company.
- All warranties exclude fair wear and tear and damage or loss attributable to events beyond the Company’s control such as, but not limited to: theft, neglect, misuse, fire, flood, storms, accidents, failure of any machinery, equipment, engines, components and other items, power fluctuations, vandalism, lack of proper maintenance and other events that may have contributed to the Goods failing to perform their proper function.
- If the Customer or any other party not appointed by the Company attempts to repair, mal-operate or modify the Goods or otherwise interferes in any way with the Goods or their components, electronics, control hardware, software or other mechanisms the Company shall be relieved of its warranty and all other obligations.
- Risk & Insurance
- All risks pass to the Customer upon delivery as defined in the Delivery clause and it is the Customer’s responsibility to arrange insurance.
- If any Goods are damaged, destroyed or stolen prior to payment being received by the Company and ownership passing to the Customer, the Company is entitled to payment in full and presenting these terms to the Customer’s insurers is sufficient evidence of the Company’s rights to the insurance proceeds.
- Limited Liability & Suitability for Purpose
- The maximum liability of the Company for any and all claims made by the Customer or by any other parties shall not exceed the purchase price of the Goods received by the Company. Under no circumstances shall the Company be liable for any incidental or consequential damages, or for any other damages, losses or claims made by the Customer or any other parties that are in excess of the amount of the purchase price of the Goods.
- The Company accepts no liability for any misuse, mal-operation, abuse or neglect by the Customer or any other parties who use the Goods in any manner or in any environment other than those specified in writing by the Company or the manufacturer of the Goods.
- The Customer is fully responsible for ensuring that Goods ordered from the Company are suitable for the purposes they were ordered for and shall indemnify and keep the Company indemnified from any and all claims and costs from any parties whatsoever as a result of the Customer failing to select Goods to the correct specifications.
- If the Customer requests the Company’s assistance in the selection of Goods or services any such assistance shall not be considered as advice or a warranty or an expert opinion or a declaration of fitness for purpose unless the Customer has in advance totally informed the Company in writing of all facts, risks, hazards, operating conditions/environment and all changes that may occur thereto. Unless the customer has fully advised the Company of all the above factors the Company accepts no responsibility or liability for Goods or services purchased by the Customer and the Customer fully indemnifies the Company from any and all claims made by the Customer or any other parties.
- Conversion, Transformation & Incorporating the Goods
If the Customer, or any other party authorised by the Customer, converts, transforms, or incorporates the Goods in whole or in part into other goods, vehicles, plant, equipment and/or machinery the Customer shall be totally liable for any losses incurred by the Company as a result, including full legal costs and for any and all claims that may arise from any other parties.
- Security for Payment & Charges
- If the Company allows the Customer extra time to pay money or perform obligations for which no guarantees or other securities have been provided, the Company may require security for payment including a guarantee by any director or other persons connected with the Customer.
- Any requirement for security or guarantees is without prejudice to other rights or remedies the Company may have and does not affect the reservation of title in Goods supplied to the Customer.
- Customers, Distributors & Dealers Are Not Agents
The Customer, Distributors, Dealers or any other parties are not agents of the Company and shall not enter into agreements or represent themselves as agents, officers or representatives of the Company to any parties whatsoever save as those as may be contained in any Distributor, Dealer or other formal agreements that the Company has entered into and duly signed.
- Personal Property Securities Act 2009 (“PPSA”) and Personal Property Securities Register (“PPSR”)
- If any clauses in these Terms contravene any provisions in the PPSA, or amendments thereto, such clause or clauses shall be deleted without affecting the validity of the remaining clauses of these Terms.
- The Customer consents to the Company registering a Security Interest on the PPSR in a manner the Company deems appropriate for Goods sold to or otherwise provided to the Customer in accordance with these Terms and/or any other agreements with the Company and the Customer agrees to provide all assistance required by the Company to register such Security Interests.
- The Customer acknowledges and agrees that these Terms create a Security Interest in the Secured Property and, to avoid doubt, the proceeds of sale of the Secured Property for the purposes of the PPSA.
- The Customer acknowledges and agrees that if any part of the Secured Property becomes the inventory of the Customer, the Customer will not permit any other Security Interest (including, but not limited to, floating or other charges, liens or pledges) to be raised in respect of the Secured Property unless the Company has perfected the Security Interest in the Secured Property prior to the Customer’s possession of the Secured Property.
- To avoid doubt, the following definitions of the PPSA apply to the Company’s Terms: Financing Statement, Financing Change Statement and Security Interest have the same meaning as defined by the PPSA and a Security Agreement is a security agreement created between the Customer and the Company in the PPSA.
- The Customer acknowledges and agrees that by placing orders for Goods the Company’s Terms constitute a Security Agreement for the purposes of the PPSA in such Goods and create a Security Interest in Goods previously supplied which have not been fully paid for and for Goods to be supplied in the future, and to avoid doubt, the sale proceeds of the Secured Property.
- The Customer agrees to do everything the Company requests including, but not limited to, signing and completing documents without delay to register and/or perfect any Security Interest and for the Company to exercise its rights in connection with the Secured Property and proof that the Customer has complied with these Terms.
- The Customer agrees to indemnify and reimburse the Company on demand for any losses and costs incurred by Company in relation to the PPSA, including any registration, or any response to an amendment, demand or a request under section 275 of the PPSA.
- The Customer agrees not to register or permit a third party to register a Financing Statement, a Financing Change Statement or any other document in respect of a Security Interest on Goods supplied by the Company that have not been fully paid for without the prior written consent of the Company being obtained beforehand.
- With regard to Section 64 of the PPSA the Customer warrants that under no circumstances shall the Customer permit a bank or other financial institution to register a “super priority security interest” or any other priority security interest on the Company’s unpaid-for Goods or other property that may be on premises, mines or any other sites that are not under the Company’s direct control.
- The Customer agrees to promptly tell the Company of any material change in its methods and policies of installing, selling and/or reselling Goods provided by the Company which would change the nature of proceeds of such sales.
- With regard to sections 95, 96, 115, 125 and any other parts of the PPSA and amendments thereto, the Company and the Customer agree that, to the extent allowed by the PPSA, these do not apply to any Security Interests created by these Terms. Furthermore, the Customer waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) together with verification statements unless all such notices are a requirement of the PPSA in which case all notices or documents must be given in accordance with the PPSA.
- To the extent permitted by the PPSA the provisions of sections 127, 129(2) & (3), 132, 134(2), 135, 136(3), (4) & (5) and 137 will not apply to the enforcement of the Company’s Security Interests
- With regard to sections 142 & 143 of the PPSA the Customer waives its rights as a grantor and/or a debtor under the PPSA.
- The Customer shall unconditionally approve any actions taken by the Company with regard to all PPSA Clauses and as may be amended from time to time.
- The Commonwealth Competition & Consumer Act 2010 (“CCCA”)
These Terms are not intended to have the effect of contracting out of any provisions of the CCCA, which is the new name of the Trade Practices Act 1974 (TPA), except where permitted by law. If the Customer buys Goods as a consumer these Terms shall be subject to protection of consumers’ rights legislation and shall not affect the consumer’s statutory rights. If any clauses in these Terms contravene any provisions in the CCCA and any amendments thereto such clause or clauses or parts thereof shall be deleted without affecting the validity of the remaining clauses of these Terms.
- Passing of Title/Reservation of Title in Goods
- In addition to the provisions contained in the PPSA Clause herein the Customer warrants that they will not charge nor permit any other party to charge the Goods in any way including, but not limited to, personal guarantees, other guarantees, floating and/or other charges or to grant or otherwise give any interest in the Goods until clean title passes to the Customer and the Customer indemnifies the Customer for all losses and costs incurred as a result of any breach of these conditions.
- Notwithstanding the delivery of the Goods title remains with the Company until all money has been paid in full and the Customer has fulfilled all its obligations to the Company.
- Until all obligations the Customer has to the Company under these Terms have been fulfilled title in the Goods remains with the Company as unpaid vendor and the Customer may only hold the Goods as bailee for the Company’s benefit. Whilst holding the Goods as bailee, the Customer shall ensure they remain identifiable as the Company’s Goods and safely store and insure them for loss or damage for the Company’s benefit.
- For Goods on which title has not passed to the Customer, the Company can give notice to the Customer to return them (or any part of them) to the Company if the Customer’s obligations under these Terms have not been fulfilled.
- If the Company becomes aware of a breach of these Terms or of an insolvency event (or likelihood of such an event) the Company and/or any representative of the Company may as the invitee of the Customer enter the premises, mine or site where the Company may believe the Goods are stored to inspect and/or remove them and the Company shall not be liable for any loss or damage alleged as a consequence of such inspection and/or removal and without being exposed to any claim by the Customer or any other parties for trespass, detinue, conversion or for any other reasons.
- Intellectual Property
- All intellectual property rights, including but not limited to, patents, drawings, designs, processes, trade marks and copyright to Goods developed by the Company and/or licensed to the Company remain with the Company and/or the grantor of the license.
- All intellectual property rights that apply to all other Goods supplied by the Company remain with the maker/developer of those Goods/Services.
- Consignment Stock
- “Consignment Stock” is defined as Goods supplied to the Customer on a Deferred-Payment-Until-Sold and/or a Sale-or-Return
- The Customer shall insure the Consignment Stock for all risks as specified by the Company and provide the Company with proof of insurance immediately upon request.
- The customer shall ensure that all Consignment Stock is kept in an “as-new” condition and, where applicable, in the original packaging.
- All Consignment Stock shall be stored separately from other goods and be readily identified as the Company’s property.
- Payment for Consignment Stock sold or released to other parties by the Customer shall be made strictly in accordance with the Company’s instructions, time being of the essence as to this obligation.
- The Customer acknowledges and agrees that all Consignment Stock shall be held solely as bailee for the Company and the Customer shall not charge or otherwise pledge any Consignment Stock as security on any document whatsoever including, but not limited to, the Personal Property Securities Register and shall not permit any other parties (other than the Company and/or its nominees) to pledge them as any form of Security Interest on the PPSR or any other Register, Mortgage, Chattel or Charge document.
- If the Company requires the Customer to return the Consignment Stock the Customer shall pay the freight and insurance costs.
- Set Off & Application
- The Company is entitled to set off against any money owed to the Customer an amount equal to the total of all money at such time then owed by the Customer or on the Customer’s behalf to the Company.
- The Company can apply any money received from or on behalf of the Customer to any and all amounts owed by the Customer as it sees fit and the Customer waives any rights of notification to such allocation.
- Customer Restructure
The Customer shall notify the Company in writing of any change in its structure, including any change in ownership, proprietors, directors, shareholders, management or change in partnership or the sale of any material part of its business within 7 days of any such change and will be liable to the Company for any purchases from the Company by any party acquiring any material part of the Customer’s business until such notice is given.
- No Waiver
If the Company elects not to exercise any rights arising from any breach of these Terms it shall not be a waiver of any rights relating to any subsequent or other breach.
- Privacy Act & Credit Information
The Customer and/or the guarantor/s agree and consent to the Company obtaining and exchanging credit information from the Customer’s creditors or other parties nominated by the Customer and for the Company to obtain reports and other information from credit reporting agencies and other sources on credit information about the Customer in relation to credit provided by the Company and the ability of the Customer to pay its bills as and when they fall due.
The Company can cancel orders from the Customer without notice if the Customer breaches any conditions of these Terms or becomes or is in jeopardy of becoming insolvent (or dies if the Customer is a natural person) and all outstanding money owing to the Company shall be payable immediately together with money owing to third parties for contracts entered into for the Customer’s benefit.
Notices to the Customer are served when delivered by hand, sent by mail, document exchange, fax or email and shall be treated as given when: if delivered by hand when delivered; if sent by mail or document exchange, 48 hours after posting; if sent by fax, and/or email when the fax machine confirms transmission or when the Company’s email system confirms transmission. A notice given after 5pm and/or on a day which is not a Business Day is treated as given on the next following Business Day.
If a dispute arises between the Company and the Customer and a solution thereto is contained in these Terms then such solution shall be a binding full and final settlement of the dispute. If no solution to the dispute exists in these Terms and the dispute cannot otherwise be resolved within 30 days from the date of the dispute then either party can refer the matter to a mediator. If neither party can agree on the mediator the dispute shall be referred to a mediator in accordance with the Governing Law clause in these Terms. The Customer shall be liable for the full costs of the mediation and if this contravenes the Governing Law the parties will equally contribute to the cost of the mediation.
If any part of these Terms is found to be unenforceable for any reason then that part will be severed from these Terms and will not affect the enforceability of any other part of these Terms.
- Governing Law & Changes to Terms of Trade
- The laws of Australia apply to these Terms and to any contracts or other agreements between the Company and the Customer and are subject to the jurisdiction of the Courts and Tribunals of Western Australia.
- The Company may at any time alter, add to or delete any clauses in these Terms and such changes will be effective from the date the changes are notified to the Customer. The Customer will be deemed to have accepted these Terms and any changes thereto upon placing further orders with the Company.
The Company may assign, license or sub-contract all or any part of its rights and obligations in these Terms without the Customer’s consent.