Terms and Conditions of Sale
The Supplier agrees to supply the Goods requested by the Customer on the terms and conditions set out below. Words in ITALICS are defined at clause 32.1 below.
1. Quotations, Orders, Acceptance & Contracts
1.1 Clauses 2.3, 3.2, 6.2, 6.8, 10.6, 23.3(c), 27.1, 29.1 and 30.1 shall apply to the Agreement unless or to the extent the Quotation or Order expressly specifies otherwise.
1.2 The Customer acknowledges that the submission of a Quotation by the Supplier is not an offer the acceptance of which will give rise to a contract.
1.3 An Order in relation to a Quotation or offer to enter into an Agreement may be made by the Customer verbally or in writing.
1.4 An Order or offer is accepted when the Customer receives from the Supplier an acceptance of the Order:
(a) by email or mechanised document from the Supplier,
(b) otherwise in writing, or,
(c) if no written acceptance of the Order is received, verbal acceptance or delivery of the Goods;
whichever occurs first (“the Order Acceptance”).
1.5 When an Order or offer is accepted by an Order Acceptance an Agreement will be made and wholly documented by (in descending Order of precedence) the Quotation, any specific terms agreed in writing and set out in the Order and these terms and conditions, which documents shall constitute the entire Agreement and will supersede all prior negotiations, proposals and correspondence between the parties.
1.6 Despite the Customer at any time providing, referring to, submitting or otherwise using or purporting to use any standard form terms and conditions other than these terms and conditions, such terms and conditions will not form part of, or be incorporated into, the Agreement.
2. Supply of Goods
2.1 The Supplier shall carry out and complete the supply of the Goods in accordance with the Agreement. The Customer and the Supplier agree that the items referred to as Exclusions in the Quotation, if any, are excluded from the Agreement.
2.2 The Supplier warrants that:
(a) it holds all licenses, if any, required to supply the Goods, and
(b) the Goods will be supplied in a proper manner and in accordance with the Contract Documents.
2.3 The Customer acknowledges and agrees that:
(a) the Contract Price (and any other money payable to the Supplier under this Agreement) do not include any taxes, freight, handling, duty or other similar charges of which will be the sole responsibility of the Customer, and
(b) unless specifically agreed in writing by the Supplier, the Goods are not intended for and will not be used in life support systems, human implantation, nuclear facilities or systems or any other application where a failure of the Goods could lead to loss of life or catastrophic property damage; and
(c) the performance of any value added service to the Goods may void the manufacturer's warranty and render the Goods unreturnable. Orders incorporating such services are unable to be cancelled and the Goods unable to be returned; and
(d) the Supplier acts as a supplying agent only for all Goods. Any insolvency event in relation to a manufacturer which disrupts the supply of the Goods, renders the Goods no longer serviceable, maintainable, supported or replaceable is at the sole risk of the Customer including any prepayments made to the manufacturer by the Supplier on behalf of the Customer which are held by any administrators, liquidators or other insolvency parties and outside the control of the Supplier.
2.4 The Supplier shall not be required to commence the supply the Goods until the Customer has paid the Deposit, if any, in accordance with clause 3.2.
2.5 Subject to clauses 2.4 and 11, the Supplier shall supply the Goods within a reasonable time and as far as reasonably possible by the date for completion specified in the Quotation, if any.
3. Contract Price & Deposit
3.1 The Customer shall pay to the Supplier the Contract Price and other money that becomes payable under the Agreement (without any set off) in the manner and at the times stated in the Agreement.
3.2 The Customer shall pay to the Supplier the deposit specified in the Quotation, if any, within seven (7) days of the Order Acceptance.
4. Shipping & Preferred Carrier
4.1 In the absence of any prior written agreement by the Supplier, the Supplier is entitled to select and utilise its preferred carrier/shipping agent, at its absolute discretion, in relation to the supply of the Goods.
5. Accuracy of Contract Documents
5.1 The party responsible for the preparation of a Contract Document warrants that it is accurate and correct.
5.2 In the event of any inconsistency between the Contract Documents, or any detail not being given, the Supplier shall give notice to the Customer detailing the problem. The Customer must within two (2) Business Days of receiving such notice give written instructions as to how the Supplier is to proceed with the supply of Goods.
5.3 In the event that the Customer refuses or fails to give written instructions to the Supplier within two (2) Business Days of a notice pursuant to Clause 5.2, the Customer authorises the Supplier to determine the required detail necessary to resolve the error, ambiguity or inconsistency, however, the Supplier shall not be obliged to act under that authority.
5.4 If the required detail, as determined by the Customer or the Supplier necessitates a change to the scope of the supply, that change is deemed to be a Variation.
6. Delivery & Inspection of Goods
6.1 Delivery of the Goods is taken to occur when:
(a) the Supplier or the Supplier’s nominated carrier delivers the Goods to the Site or address or third party nominated by the Customer even if the Customer is not present at the address, or
(b) the Customer or its nominated carrier takes possession of the Goods.
6.2 The cost of delivery is payable by the Customer in addition to the Contract Price.
6.3 The Supplier shall make reasonable efforts to deliver the Goods to the Customer or its designated agent in accordance with any agreement between the parties, or in the absence of any specific agreement, within a reasonable time, but shall not be liable for:
(a) any failure to deliver or delay in delivering the Goods for any reason,
(b) any damage or loss due to unloading or packaging (unless risk in the Goods had not passed to the Customer at the relevant time),
(c) any damage to property caused upon entering premises to deliver the Goods, unless caused by the Supplier’s negligent act or omission.
6.4 The Customer shall accept delivery of the Goods even if late. In the event that the Customer fails to take delivery of the Goods at the time of delivery the Customer shall reimburse the Supplier for any costs incurred by the failure and the Supplier shall be entitled to charge a reasonable fee for redelivery and/or storage of the Goods.
6.5 The Customer must inspect the Goods on delivery. The Customer must notify the Supplier in writing within seven (7) days of delivery and setting out full details of all relevant matters if:
(a) the Goods are damaged, faulty or defective in any way,
(b) the Goods do not comply with any description by which they were sold and/or specified to in the Quotation, or
(c) there is any discrepancy in quantity.
6.6 The Customer must notify the Supplier in writing of any other defect in the Goods as soon as reasonably possible after any such defect becomes apparent.
6.7 Where a notice is given under clauses 6.5 or 6.6 the Customer shall allow the Supplier to inspect the Goods.
6.8 Notwithstanding any other clause, where the Goods or any part of the Goods are second-hand, the Supplier makes no warranty in relation to the quality or suitability of the second-hand Goods for any purpose and the Customer:
(a) acknowledges that it has had a reasonable opportunity to inspect the second-hand Goods prior to delivery, and
(b) accepts the second-hand Goods with any faults, damage and/or missing parts or components.
7. Passing of Risk
7.1 The risk in the Goods will pass to the Customer:
(a) where the supply includes the installation of the Goods or any particular Goods, upon completion of that part of the supply that relates to the installation or each installation, and
(b) in all other cases, upon the earlier of: (i) the delivery of the Goods to the Customer or its agent (including all risks associated with unloading), and (ii) the passing of title to the Goods to the Customer.
7.2 Notwithstanding clause 7.1(a), if the Customer directs the Supplier to deliver the Goods to an unattended location the Goods shall be left at the Customer’s sole risk and responsibility. In the event that such Goods are lost, damaged or destroyed the replacement of the Goods shall be at the Customer’s expense.
7.3 Where the Supplier retains ownership pursuant to clause 8 of Goods in respect of which risk has passed to the Customer, the Customer must maintain adequate insurance in relation to the Goods and provide evidence of such insurance to the Supplier on request.
8. Retention of Title
8.1 Notwithstanding the delivery of Goods, until the Customer has paid all monies payable to the Supplier under the Agreement in cleared funds:
(a) the legal and equitable title to the Goods will remain with the Supplier;
(b) a fiduciary relationship will exist between the Customer and the Supplier; and
(c) the Customer agrees to hold the Goods as bailee for the Supplier and keep the Goods separate and in good condition.
8.2 Unless the Goods have become fixtures, until ownership of the Goods passes to the Customer:
(a) the Customer shall not charge or grant any encumbrance over the Goods,
(b) the Customer must return the Goods to the Supplier on request, and
(c) the Supplier may without demand retake possession of the Goods.
8.3 For the purposes of recovering possession of the Goods and without limiting the generality of this clause 8, the Customer irrevocably authorises and licenses the Supplier and its servants and agents to enter any premises where the Supplier believes the Goods may be stored and to take possession of the Goods.
9. Tax Invoices
9.1 The Supplier may issue a Tax Invoice in respect of Goods or services supplied by the Supplier on or after:
(a) the dates, periods or milestones specified in the Quotation, if any,
(b) the date of delivery of the Goods or any part of the Goods, and
(c) the 1st and last days of each calendar month in which any Goods or services were supplied.
9.2 The Supplier may serve a Tax Invoice on the Customer by any method that it is entitled to give notice under the Agreement.
9.3 The Customer must pay the Contract Price progressively as claimed by the Supplier within seven (7) days, or such other period as specified in the Quotation, of service of a Tax Invoice on the Customer.
10.1 A Variation occurs if:
(a) the Agreement deems a Variation,
(b) the Customer requests the Supplier to perform a Variation and subsequently, the Supplier performs the Variation in accordance with the Customer’s direction, or
(c) the Customer and the Supplier agree in writing to a Variation, including Agreement as to the price of the Variation.
10.2 The price of a Variation is payable progressively as the Variation is performed and is due at the same time as the next Tax Invoice after it is carried out unless a different time is agreed.
10.3 If the Customer has requested the Supplier to perform a Variation and the Supplier has provided the Customer with a cost proposal in respect of the Variation, unless the cost proposal is rejected by the Customer in writing within two (2) Business Days the amount of the cost proposal is deemed to be the price of the Variation for the purposes of clause 10.1(b).
10.4 If there is insufficient time to calculate the price of a Variation, or this Contract deems a Variation, the price of the Variation will be charged to the Customer at the Supplier’s reasonable cost plus a Profit Margin.
10.5 There shall be a deemed Variation if:
(a) the requirements of any statutory or other Authority necessitate a change to the supply of Goods, such Variation being that change required to effect that change,
(b) additional supply is required, or the supply is required to be performed in a manner or using equipment not anticipated, due to the discovery of latent difficulties in the performance of the supply of Goods (including, without limitation those circumstances set out in clause 12.1),
(c) after the Agreement is made; (i) a statutory or other Authority introduces or increases any tax, charge, levy or other regulation or any requirement that affects the supply of Goods that causes any increase in the costs of the supply of Goods, or (ii) the Supplier’s wages is affected by a change to an Industry Award.
10.6 The Customer acknowledges that the Contract Price has been agreed on the basis of the Supplier performing the supply of Goods during the Supplier’s ordinary operating hours. The Supplier will be entitled to a Variation if the supply of Goods are required to be carried out outside the aforementioned working hours.
10.7 Where extra cost in materials, labour and overhead is occasioned to the Supplier by virtue of the acceleration of an agreed supply schedule or of the presence of conditions which could not reasonably have been anticipated by the Supplier the Agreement is deemed to have been varied and the Contract Price shall be adjusted accordingly.
10.8 Notwithstanding any other clause herein, the Supplier is under no obligation to carry out any deemed Variation or Variation requested by the Customer.
11. Manufacturer & Shipping Delays
11.1 The Supplier will not be responsible for, and accepts no liability whatsoever in relation to, any delay or failure to deliver on part of the manufacturer of the Goods or the Supplier's appointed carrier/shipping agent where such failure or delay is beyond the Supplier's reasonable control.
12. Acknowledgement of Possible Delays
12.1 The Customer acknowledges that completion of the supply of Goods may be suspended by the Supplier pursuant to clause 13 or delayed by any cause beyond the control of the Supplier including; (a) a Variation or a request by the Customer for a Variation; (b) an act of God, fire, explosion, earthquake or civil commotion; (c) shortages in supply of Goods; (d) an industrial dispute; (e) anything done or not done by the Customer; (f) government authority restriction or embargo; (g) the delay in the supply of Goods from third parties and manufactures; (h) pandemic or epidemic; and (i) any other reason beyond the supplier's reasonable control.
12.2 The Supplier shall not be liable for the failure to perform the supply of Goods or the Agreement to the extent and for so long as its performance is prevented or delayed without substantial fault or negligence by the Supplier because of a circumstance referred to in clause 12.1.
12.3 Where the costs of the supply of Goods has increased due to any delay beyond the control of the Supplier, there shall be a deemed Variation and the Supplier shall be entitled to a reasonable increase in the Contract Price.
13.1 If the Customer is in breach of the Agreement the Supplier may suspend the carrying out of the supply of Goods and must promptly give to the Customer written notice of the suspension and details of the breach.
13.2 The Supplier must recommence the carrying out of the supply of Goods within a reasonable time after the Customer remedies the breach and gives the Supplier written notice of that fact.
14. Items On Loan
14.1 All tools, patterns, materials, drawings, specifications, data or equipment loaned by the Supplier to the Customer, or obtained by the Customer at a cost of the Supplier for the purposes of the Order, shall remain the Supplier's property. The Customer shall on completion of the Order or as otherwise directed surrender the same to the Supplier in good and serviceable condition (fair wear and tear excepted).
15. Hire of Equipment (if applicable)
15.1 This clause applies if the Agreement includes the hire of equipment to the Customer.
15.2 In this clause:
(a) “Equipment” means the equipment specified in the Quotation to be hired to the Customer;
(b) “Hire Fee” means the fee specified in the Quotation for the hire of the Equipment;
(c) “Hire Start Date” and Hire End Date” mean the dates so specified in the Quotation or such other date as the parties agree in writing;
(d) “Hire Period” means the period commencing on the Hire Start Date and ending on the Hire End Date.
15.3 Subject to clause 15.9, the Supplier shall provide and the Customer shall take on hire the Equipment for the Hire Period
15.4 The Customer shall pay, at the same times as Tax Invoices are due and payable under the Agreement:
(a) the Hire Fee to the Supplier progressively during the Hire Period,
(b) the Supplier’s costs of delivering and/or collecting the Equipment to or from any site,
(c) the Supplier’s costs of repairing any damage to the Equipment for which the Customer is responsible, and
(d) the full replacement cost of the Equipment where the Customer fails or refuses to return the Equipment or make the Equipment available for collection.
15.5 The Customer warrants that it:
(a) has inspected or had a reasonable opportunity to inspect the Equipment prior to placing the Order,
(b) has not relied on any representation by the Supplier in relation to the suitability of the Equipment for any purpose,
(c) will only use the Equipment in accordance with the recognized methods and use for equipment of the type, and
(d) will keep the Equipment clean and in good working order and repair and will comply with any maintenance schedules referred to in the Quotation.
15.6 Except with the Supplier’s prior written consent, the Customer shall:
(a) keep Equipment at the location at which it was delivered or at which its intended use was disclosed to the Supplier prior to collection and not remove the Equipment from that location,
(b) not make any replacement, alteration or addition to the Equipment, and
(c) keep the equipment in the Customer’s sole possession and control.
15.7 The Customer agrees to use, operate and possess the Equipment at the Customer’s risk. The Customer shall be fully responsible for and liable to the Supplier for any loss or damage to the Equipment howsoever occasioned, except fair wear and tear. The Customer shall notify the Supplier in writing as soon as practicable upon it becoming aware of any loss or damage to the Equipment in excess of fair wear and tear.
15.8 Title to the Equipment shall at all times vest in the Supplier. The Supplier shall be entitled to inspect the Equipment at any time on reasonable notice.
15.9 In the event of any default or termination of the Agreement the Customer shall return the Equipment to Supplier on demand.
16.1 The Customer irrevocably indemnifies the Supplier in relation to any loss, damage, claim, expense, or cost the Supplier suffers in relation to any breach of this agreement by the Customer.
17. Dispute Resolution
17.1 The parties must attempt to resolve any dispute or claim arising out of or under the Agreement by negotiation in good faith before either party commences any litigation in relation to the dispute or claim. Accordingly, if a party considers that a dispute or claim has arisen under the Agreement they must give written notice to the other party adequately setting out and providing details of the dispute.
17.2 The Supplier and the Customer must meet within ten (10) Business Days of the giving of a notice pursuant to clause 17.1 to attempt to resolve the dispute or claim or to agree on methods of doing so. The parties must be represented at the meeting by a person with authority to agree to a resolution of the dispute.
17.3 If the dispute is resolved the parties must write down the resolution and sign it.
17.4 The parties agree that anything done or said in the negotiations can not be revealed in any other proceedings.
17.5 Nothing in this clause prevents either party from commencing urgent injunctive or interlocutory proceedings in a competent Court.
18. Default & Termination of Contract
18.1 Without limiting clause 18.2, a party may terminate the Agreement if:
(a) the other party is in default of the Agreement,
(b) the non-defaulting party has served notice in writing on the party setting out details of the default and stating that the party will be entitled to terminate the Agreement unless the default is remedied within a specified time of not less than 14 days,
(c) the party fails to remedy the default within 14 days of receiving a notice under clause 18.1(b), or such longer period as may be specified in the notice, and
(d) the non-defaulting party serves written notice of termination whilst the default remains unsatisfied.
18.2 If the Customer fails to pay any money under the Agreement within seven (7) days of the due date for payment:
(a) the Supplier may terminate the Agreement by notice in writing to the Customer,
(b) the Supplier shall be entitled to interest on the outstanding amount at the rate of 2.5% per calendar month calculated daily from the due date for payment and compounding monthly on the first day of each month until payment is received,
(c) may without notice sell any Goods that the Supplier has recovered pursuant to clause 8 on such terms and in such manner as it determines and, after deducting all expenses incurred, shall offset such proceeds from the balance owing from the Supplier,
(d) the Customer shall indemnify the Supplier from and against all costs and disbursements incurred or payable by the Supplier in connection with the recovery of monies owing by the Supplier (including, without limitation, legal fees on an indemnity basis, collection agency costs and bank dishonour fees), and
(e) the Supplier may cancel all or any part of the supply of Goods in connection with any other contract or contracts made with the Customer to which these terms and conditions apply whereafter all amounts payable by the Customer to the Supplier shall became payable immediately.
18.3 The Customer agrees to pay to the Supplier, as genuine pre-estimate of the Supplier’s costs:
(a) a processing and handling fee of $20.00 in respect of each payment made under the Agreement that is not in satisfaction, or in satisfaction of the balance, of a Tax Invoice, and
(b) a default fee of $50.00 in respect of any failure by the Customer to pay a Tax Invoice by the due date for payment or by the corresponding day of each subsequent calendar month until the Tax Invoice is paid in full.
19. Warranties & Representations
19.1 Subject to clause 2.2 and except as expressly provided to the contrary in the Contract Documents, all representations, warranties, guarantees and conditions in relation to the Goods (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law.
19.2 If the Customer is aware (or should be aware) that the Goods are for a particular purpose or are required to possess particular or uniform characteristics, the Customer agrees to clearly specify that purpose or those characteristics in writing in the Order.
19.3 The Customer warrants that it has made its own enquiries in relation to the suitability of the supply of Goods and the Goods and has not relied on any representation made by the Supplier in relation to their suitability for any particular purpose.
20. Return of Goods
20.1 Subject to any applicable statute, unless the Supplier agrees otherwise in writing, the Supplier will only accept a return of the Goods if:
(a) the Customer has complied with clauses 6.5 and 6.6,
(b) the Supplier acting reasonably has agreed that the Goods are defective and not reasonably capable of repair,
(c) the Goods are returned at the Customer’s expense and within an reasonable time, and
(d) the Goods are returned, as far as possible, in the same condition as the Goods were delivered.
20.2 If the Supplier agrees in its absolute discretion to accept the return of any non-defective Goods, the Customer shall:
(a) indemnify the Supplier in relation to any freight expense, and
(b) if required by the Supplier, pay handling fees of up to 10% of the price of the Goods returned.
21. Limitation of Liability
21.1 The Supplier’s liability to the Customer (and any party claiming through the Customer against the Supplier) for any claim for loss or damage (including legal expenses), whether arising in contract, tort or otherwise, in connection with the Agreement shall be as follows:
(a) where the liability relates to the supply of services, the Supplier’s liability shall be limited to the lesser of the costs of: (i) supplying the services again, or (ii) payment of the costs of having the services supplied again, or
(b) where the liability relates to the supply of Goods, the Supplier’s liability shall be limited to the lesser of the cost of: (i) replacement of the Goods or the supply of equivalent Goods, (ii) repair of the Goods, (iii) payment of the costs of replacing the Goods or acquiring equivalent Goods, or (iv) payment of the costs of having the Goods repaired.
21.2 Notwithstanding any other term of the Agreement but subject to any applicable statute, the Supplier shall not be liable for any defect, fault or damage to the Goods of any nature whatsoever:
(a) in respect of which notice was not provided in accordance with clauses 6.5 or 6.6, or
(b) in circumstances where the manufacture of the Goods no longer exists, is currently under administration, in liquidation or subject to other insolvency proceedings,
(c) replacement parts, components or software required to repair, remedy or rectify the Goods are no longer available, have been discontinued or no longer supported by manufacturer of the Goods,
(d) resulting from or caused or contributed to in any way by:
(i) The Customer failing to properly maintain or store the Goods after delivery,
(ii) The Customer using the Goods for any purpose other than that for which the Goods were designed,
(iii) The Customer continuing to use the Goods after any defect became apparent or ought reasonably to have become apparent,
(iv) The Customer failing to following any instructions or guidelines provided by the Supplier or the manufacturer of the Goods, or
(v) Fair wear and tear or any accident or act of God.
21.3 If the Supplier did not manufacture the Goods, the Supplier’s liability shall be limited to the lesser of the liability of the manufacturer of the Goods to the Supplier and the liability determined under clause 21.1(b).
21.4 Unless the Quotation contains an express warranty, the Customer acknowledges that the Goods supplied may exhibit variations in shade, colour, texture, surface and finish and may fade or change colour over time. The Supplier shall make reasonable efforts to match batches of products supplied and minimise such variations but shall not be liable in any what whatsoever where such variations occur.
21.5 The Supplier shall not be liable for any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the carrying out of the supply of Goods or supply of the Goods.
21.6 The Supplier will not be responsible for, or liable for and cost, damage, claim of loss in relation to the Goods not complying with the manufacturer's specifications, the performance or adequacy of any design or specification provided to the Supplier either by the manufacturer or the Customer.
22.1 In consideration for the Supplier entering into the Agreement, the Guarantor guarantees to the Supplier the performance by the Customer of all of the Customer’s obligations under the Agreement including any Variation.
22.2 If the Customer does not pay any money due under the Agreement the Guarantor must pay that money to the Supplier on demand without deduction, set-off or counterclaim even if the Supplier has not tried to recover payment from the Customer.
22.3 Even if the Supplier gives the Customer extra time to comply with an obligation under the Agreement or does not insist on strict compliance with the terms of the Agreement the Guarantor’s obligations will not be affected.
22.4 Where a payment made by the Customer or the Guarantor to the Supplier is set aside by law, the parties are restored to their respective positions prior to the payment being made and are entitled to exercise all rights which they had under the Agreement.
22.5 If there is more than one (1) Guarantor:
(a) (a) this guarantee shall be binding on each of them jointly and severally, and
(b) (b) the release by the Supplier of any Guarantor from this guarantee does not affect the liability of any other Guarantor.
22.6 The Guarantor’s liability under this clause is continuing and unlimited.
23. Personal Property Security
23.1 In this clause ‘amendment demand’, ‘attaches’, ‘financing statement’, ‘financing change statement’, ‘security agreement’, ‘security interest’ and ‘verification statement’ have the meanings given to them by the PPSA.
23.2 The Customer and the Guarantor, if any, hereby charge the Goods and all of their respective personal property as security for the performance by the Customer of the Customer’s obligations under the Agreement.
23.3 The Customer acknowledges and agrees that:
(a) the Agreement constitutes a security agreement for the purposes of the PPSA, and
(b) a security interest exists in all Goods (and their proceeds) previously supplied by the Supplier to the Customer (if any) and in all future Goods supplied (and their proceeds),
(c) the Customer has received or will receive value as at the date of first delivery of the Goods (or any part of the Goods) and that the Supplier has not agreed to postpone the time the security interest attaches to the Goods, and
(d) where the Supplier has rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply.
23.4 The Customer shall:
(a) promptly sign all documents and provide any further information that the Supplier may reasonably require to register a financing statement or financing change statement in relation to a security interest granted to the Supplier under the Agreement or any other document required to be registered under the PPSA,
(b) notify the Supplier in writing of any intention to change the Customer’s business practices to include the sale or leasing of Goods of like kind to the Goods (or any part thereof) in the ordinary course of the Customer’s business, and
(c) on demand reimburse the Supplier for all costs and expenses incurred in registering a financing statement or financing change statement.
23.5 The Customer must not, without the Supplier’s prior written consent:
(a) register or permit to be registered a financing statement or financing change statement in relation to the Goods in favour of a third party, or
(b) register or cause to be registered a financing change statement in respect of a security interest granted under the Agreement,
(c) issue or permit any other person to issue an amendment demand to the Supplier unless all monies payable by the Customer under the Agreement have been received by the Supplier in cleared funds.
23.6 Any requirement under the PPSA on the part of the Supplier to give a notice to the Customer or any Guarantor shall not, to the extent that the requirement may be contracted out of (including, without limitation, under Section 115(1) of the PPSA), apply to the Agreement. Further, to the extent that that the Customer and/or the Guarantor may waive the right to receive a notice under the PPSA (including, without limitation, notice in relation to a verification statement under Section 157(1) of the PPSA), the Customer and the Guarantor waives that right.
23.7 The Customer irrevocably authorises and licenses the Supplier to enter upon the Customer’s property or premises, without notice, and without being in any way liable to the Customer, if the Supplier has cause to exercise any of the Supplier’s rights under Section 123 of the PPSA, and the Customer shall indemnify the Supplier from any claims made by any third party as a result of such exercise.
23.8 The Supplier and the Customer agree to treat information of the kind referred to in Section 275(1) of the PPSA as confidential. Neither the Supplier or the Customer will disclose, send or make available any of the information referred to in Section 275(1) of the PPSA to any person except as required by law or the Agreement.
23.9 The Supplier and the Customer acknowledge and agree that clause 23.8 constitutes a confidentiality agreement pursuant to Section 275(6) of the PPSA.
24. Export/Resale Restrictions
24.1 The Customer acknowledges that the Goods may be subject to export or resale restriction or regulation and that the Customer will be responsible for complying with any such applicable laws, restrictions and regulations.
24.2 Any statement as to the Goods country of origin, Export Control Classification Number or compliance with any applicable law (including, without limitation, that Goods are lead free or RoHS Compliant) are the responsibility of the Customer to verify and the Supplier does not warrant any such conditions being true, accurate or correct. The Customer acknowledges and agrees that it uses such information at its own risk.
24.3 The Customer acknowledges and agrees that the Goods, software and/or technology purchased by the Customer may be subject to export, re-export or other restrictions under the laws of the country of the manufacturer of the Goods, the country of supply and country in which the Customer resides.
24.4 The Customer warrants that it will comply with all applicable laws, restrictions and regulations relating to the export and re-export of such Goods, software and/or technology including, without limitation, the Customer will not use, sell, export, re-export or incorporate the Goods directly or indirectly:
(a) in relation to the development, production, design, stockpiling or use of chemical or biological weapons, nuclear programs, missiles, maritime nuclear propulsion projects ,
(b) for the use by military, police, intelligence agencies, space applications or any other organisation prohibited by applicable laws and regulations;
(c) for use by military vessels, vehicles or aircraft,
(d) for use in general purpose microprocessors for military end users or military applications, or
(e) in relation to any other activity in violation of any UN Charter or embargo;
except as expressly permitted under any applicable laws and regulations in relation to these items.
25. Intellectual Property
25.1 Where the Supplier has designed, drawn or developed unique and/or original designs or drawings in connection with the supply of Goods or any Goods, copyright in such designs or drawings shall vest in the Supplier.
25.2 The Customer warrants that the Supplier is entitled to use all documents and drawings provided by the Customer for the purposes of performing the supply of Goods and that such use will not infringe any third party’s intellectual property rights.
25.3 The Customer shall indemnify the Supplier from and against all claims and all losses and damages incurred by the Supplier as a consequence of any claim against the Supplier for infringement of a third party’s intellectual property rights in connection with the carrying out the supply of Goods or supply of the Goods in accordance with a document that is; supplied by, prepared under the instruction of, or prepared from sketches provided by, the Customer.
25.4 Any software or other intellectual property included in, or relating to, the Goods is supplied by the manufacturer of the Goods and not the Supplier.
25.5 The Supplier makes no representation or warranty in respect of any intellectual property that is owned by the manufacturer of the Goods and makes no representation or warranty in relation to any such intellectual property. The Customer agrees to comply with all requirements in relation to intellectual property of any third party (including any requirement to enter into separate licence agreements and prohibitions against duplicating or disclosing the same) even if the Supplier has broken the seal on any shrink-wrapped software.
26. Subcontracting & Assignment
26.1 The Supplier may subcontract the whole or any part of the supply of Goods but remains responsible for all of the supply of Goods.
26.2 The Supplier may assign the Agreement to any person. In the event of the assignment the Customer may, if it has reasonable grounds to believe that the assignee will not comply with the Agreement, within seven (7) days of receiving notice of the assignment terminate the Agreement by 30 days written notice to the Supplier whereafter the termination will be effective unless the assignment is withdrawn.
27.1 Notwithstanding any other clause herein the Supplier may cancel any agreement to which these terms and conditions apply at any time before the supply of Goods are commenced or Goods delivered by giving written notice to the Customer whereafter any deposit or other amount paid by the Customer on account of the Goods shall become immediately repayable to the Customer. The Supplier shall not be liable for any consequential loss or damage in relation to any such cancellation.
27.2 If the Customer purports to cancel the Agreement, without limiting any other right available to the Supplier, the Customer shall be liable to the Supplier for any and all loss or damage suffered by the Supplier in connection with the cancellation including, without limitation, loss of profit in respect of the supply of Goods and supply of the Goods and/or loss of profits in respect of orders and opportunities foregone as a result of the scheduling of the supply of Goods.
28. Privacy Act 1988 (Cth)
28.1 Despite clause 1.5, this clause applies upon the making of an Order before and after any Order Acceptance.
28.2 The Customer and the Guarantor, if any, consent to the Supplier obtaining a Credit Report from a credit reporting agency in relation to the Customer and the Guarantor respectively for the purpose of:
(a) assessing the creditworthiness of the Customer, and
(b) the collection of payments that are overdue in respect of commercial credit.
28.3 The Customer and the Guarantor, if any, agree that the Supplier may exchange information about the Customer and the Guarantor with those credit providers either named as trade referees by the Customer or named in a Credit Report issued by a credit reporting agency for the following purposes:
(a) to assess an application for commercial credit by the Customer,
(b) to notify other credit providers of a default by the Customer,
(c) to exchange information with other credit providers, where the Customer is in default with other credit providers, and
(d) to assess the creditworthiness of the Customer.
28.4 The Customer and the Guarantor, if any, consent to the Supplier using any personal information collected by the Supplier for the following purposes or as required by law:
(a) the performance of the supply of Goods and/or supply of Goods,
(b) the marketing of the supply of Goods or services by the Supplier,
(c) the analysing, verifying and checking of the Customer’s credit and/or payment status in relation to the performance of the supply of Goods and/or supply of Goods,
(d) the processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer, and
(e) enabling the daily operation of the Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the performance of the supply of Goods and/or supply of Goods.
28.5 The Supplier may give information about the Customer and the Guarantor to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer and/or the Guarantor, or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer and/or the Guarantor.
29.1 The Contract Price and all other monies payable by the Customer pursuant to the Agreement are exclusive of GST.
29.2 If The Supplier incurs a liability to pay GST in connection with a supply to the Customer pursuant to the Agreement, the consideration that the Customer must pay to the Supplier for the supply is increased by an amount equal to the GST liability that the Supplier incurs in making the supply and the amount of the GST liability is payable at the same time and in the same manner as the consideration in respect of the supply is payable.
29.3 The Supplier shall provide the Customer with a tax invoice for any GST included in any payment made pursuant to the Agreement.
30.1 The parties agree that email shall be the primary method of contact and communication in relation to any matters arising under the Agreement.
30.2 A notice is deemed to have been given or serviced if the notice is:
(a) delivered by hand to the other party,
(b) posted by ordinary prepaid mail to the other party’s address (including a Post Office Box) stated in the Quotation or Order on the second Business Day following the date of posting, or
(c) sent by facsimile transmission to the parties’ facsimile number stated in the Quotation or Order upon receiving confirmation of delivery of the transmission, or
(d) sent by email to the parties’ email address stated in the Quotation or Order upon receiving confirmation of delivery of the email without error.
31.1 Payments may only be made by cash, bank cheque, electronic funds transfer or credit card (unless the Supplier agrees otherwise in relation to a payment). The Customer agrees to pay a surcharge equal to 2.5% in respect any payment made via credit card.
31.2 The Customer may not; (a) set off against or deduct from any monies payable under the Agreement any sums owed or claimed to be owed by the Supplier to the Customer, or (b) withhold payment of any Tax Invoice because the Tax Invoice or part of it is in dispute.
31.3 The Agreement embodies the whole agreement between the parties relating to the subject matter of the Agreement and supersedes any and all oral and written negotiations and communications by or on behalf of any of the parties.
31.4 The terms in the Agreement may not be varied, waived, discharged or released, except with the prior written consent of the parties.
31.5 No right under the Agreement is waived or deemed to have been waived in relation to any particular instance unless in writing and signed by the party waiving the right. A party does not waive its right under the Agreement by granting an extension of time or any other forbearance to another party.
31.6 The Agreement shall be governed by and constructed pursuant to the laws of the State of New South Wales. The parties irrevocably submit to the jurisdiction of the Courts of New South Wales in connection with any dispute relating to the Agreement. The parties further agree that the Court of competent jurisdiction located closest to the Supplier’s principal place of business in New South Wales shall be the appropriate Court for the hearing of any claims in connection with this Agreement.
31.7 The parties agree that a construction of the Agreement that results in all provisions being enforceable is to be preferred to a construction that does not so result.
31.8 If, despite the application of clause 31.7, a provision of the Agreement is illegal or unenforceable:
(a) if the provision would not be illegal or unenforceable if a word or words were omitted, that word or those words are severed; and
(b) in any other case, the whole provision is severed,
and the remainder of the Agreement continues in force.
32. Definitions & Interpretation
32.1 In these terms and conditions:
(a) “Agreement” means the agreement between the Customer and the Supplier arising from the Supplier’s acceptance of an Order from the Customer;
(b) “Authority” means the Local Government, State or Federal Government, or any Government agency that has power to affect the supply of Goods;
(c) “Business Day” means any day other than Saturdays, Sundays or public holidays;
(d) “Customer” means the party named as the Customer or customer in the Quotation, or if there was no written Quotation, in the Order;
(e) “Contract Documents” means these terms and conditions, the Order, the Quotation, the Order Acceptance and the plans (or measurements) and specifications, if any, specified in the Quotation;
(f) “Contract Price” means the amount or rates stated as the price in the Quotation, or if there was no written Quotation, in the Order;
(g) “Exclusions” means the exclusions described in the Quotation;
(h) “Goods” means any equipment, Goods and other parts and components to be supplied by the Supplier as part of or in connection with the supply of Goods or otherwise described in the Contract Documents;
(i) “GST” has the same meaning as given to it in the A New Tax System (Goods and Services Tax) Act 1999.
(j) “Guarantor” means the person or persons who have signed the Order as Guarantor and includes their executors, administrators, successors and assigns;
(k) “Order” means a work order or purchase order in writing issued by the Supplier in relation to a Quotation,
(l) “Order Acceptance” is defined in clause 1.4.
(m) “PPSA” means the Personal Property Securities Act 2009 (Cth);
(n) “Profit Margin” means a margin of 15% plus GST or such other margin specified in the Quotation.
(o) “Tax Invoice” means both a tax invoice as defined in the A New Tax System (Goods and Services Tax) Act 1999;
(p) “Quotation” means the proposal, if any, provided by the Supplier to the Customer in respect of the supply of Goods and/or the Goods to which the Order relates;
(q) “Site” means the address at which the supply of Goods are to be carried out as specified in the Quotation or if there was no written Quotation, in the Order or the Order Acceptance;
(r) “Supplier” means Power Components (Australia) Pty Ltd (ACN 617 865 531), it’s successors, assigns, subsidiaries, affiliates and nominated related body corporates;
(s) “Variation” means to vary the supply of Goods by; carrying out additional work, omitting any part of the supply of Goods or changing the scope of the supply of Goods.
32.2 In the Agreement, unless otherwise indicated by the context: (a) the singular includes the plural and vice versa; (b) a reference to one gender includes a reference to all other genders; (c) headings to clauses are included for the sake of convenience only and will not affect the interpretation of the clauses to which they relate; (d) references to any statute or statutory provision include that statute or statutory provision as amended, extended, consolidated or replaced by subsequent legislation and any Orders, regulations, instruments or other subordinate legislation made under the relevant statute; (e) the word person means and includes a natural person, a company, a firm or any other legal entity whether acting as a trustee or not; (f) the Agreement will bind each party’s legal personal representatives, successors and assigns; and (g) where a party comprises two (2) or more persons the rights and obligations of such persons pursuant to the Agreement will ensue for the benefit of and bind each of them jointly and severally.