In this document (“Terms and Conditions”):
(a) “Application” means the application by the Buyer to the Seller for commercial credit in the form overleaf;
(b) “Buyer” means a person placing an Order for Goods with the Seller;
(c) “Contract” means the contract formed between the Seller and the Buyer as envisaged in clause 1(a);
(d) “Custom Goods” means any goods that that are manufactured to the specifications of a particular Buyer and where relevant in accordance with the Factory Drawings;
(e) “Factory Drawings” means a drawing or drawings prepared by the Seller in relation to Custom Goods and which will be deemed to have been approved and accepted by the Buyer (i) when the Buyer signs the drawing; or (ii) when the Buyer fails to notify the Seller in writing, within 3 days of the Seller delivering or presenting the Factory Drawings to the Buyer, that the Buyer does not approve and/or accept such Factory Drawings;
(f) “Goods” means Custom Goods or Standard Goods, the subject of a Contract;
(g) “Order” is an order or offer made in writing by the Buyer to purchase Goods;
(h) “Order Acceptance” means an acceptance by the Seller of an Order, which acceptance can be effected by (i) email communication from the Seller to the Buyer; or (ii) commencement of production of the Goods; or (iii) delivery of the Goods to the Buyer, whichever occurs first;
(i) “Price” means (subject to any increase or decrease in price referred to in clause 2(c)) the price contained in (i) a Quotation for Custom Goods (exclusive of GST); or (ii) the Price List for Standard Goods (exclusive of GST).
(j) “Price List” means the price list published from time to time by the Seller for all Standard Goods;
(k) “Quotation” means a quotation provided by the Seller to a Buyer setting out amongst other things, the Price/s, quantity/ies, delivery date/s of Custom Goods to be manufactured by the Seller and sold to the Buyer;
(l) “Seller” means Tech Plas Extrusions Pty Limited (A.C.N. 003 004 699);
(m) “Standard Goods” means any goods which the Seller supplies to the Buyer which are not Custom Goods;
(n) words importing the singular includes the plural and vice versa;
(o) words importing a gender include any gender; and
(p) an expression importing a natural person includes a company, partnership, joint venture or other body or entity and vice versa.
1. Contract
(a) Each Contract in respect of (i) Standard Goods will be constituted by an Order and an Order Acceptance as read with these Terms and Conditions; or (ii) Custom Goods will be constituted by the Factory Drawings, a Quotation, an Order and an Order Acceptance as read with these Terms and Conditions. Each such Contract will constitute the entire agreement between the Seller and the Buyer and, subject to clause 1(c), no variation or cancellation of this Contract will be binding on the Seller unless agreed to by an officer of the Seller (with the designation of director or manager) in writing. The Seller is not bound by the terms of any Order, acceptance of quotation or other document made by the Buyer, unless the Seller agrees otherwise in writing and all such terms are expressly negated.
(b) To the extent that these Terms and Conditions conflict with any terms contained in any Quotation or Order, the terms contained in the Quotation or Order shall prevail over the terms contained in these Terms and Conditions.
(c) The Seller, may at its absolute discretion vary, alter or modify this Contract by giving the Buyer ten (10) days notice in writing and the varied Contract will apply to all Orders placed by the Buyer after the expiry of such period.
2. GST and Price Variations
(a) In these Terms and Conditions: (i) “GST” means a goods and services tax or similar value added tax levied or imposed in Australia on a Supply; and (ii) “Supply” has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
(b) Any consideration or payment obligation stated or referred to in this Contact does not include GST. If GST is imposed on any Supply (other than a Supply which is GST free under the A New Tax System (Goods and Service Tax) Act 1999 (Cth) made by any party (the “Supplier”) to any other party (the “Recipient”) under or in connection with this Contract, the consideration for that Supply is increased by an amount equal to the amount of that consideration multiplied by the rate at which GST is imposed in respect of that Supply. The Supplier must provide to the Recipient a GST tax invoice as required by the relevant legislation.
(c) Notwithstanding any provision in the Contract to the contrary, the Seller may at any time increase the Price of the Goods even after an Order Acceptance and prior to the delivery of the Goods if the price increase results from an increase in the price of any of the inputs which comprise part of the Goods.
3. Delivery
(a) Unless set out in the Contract, delivery will occur at the premises of the Seller.
(b) Unless a specific time for delivery has been set out in the Contract, the Buyer agrees to accept the Goods when the Seller determines that the Goods are ready for delivery.
(c) The Seller reserves the right to supply to the Buyer 10% more or less than the quantity contained in the Order. The amount payable will be adjusted to reflect the difference in the amount supplied.
(d) Time will not be of the essence of the Contract and the Seller shall not be liable for: (i) any failure to deliver or delay in delivery of the Goods for any reason; or (ii) any damage or loss due to packaging or unloading the Goods; or (iii) damage to property of the Buyer caused upon entering premises to deliver the Goods.
(e) Risk in the Goods passes from the Seller to the Buyer upon delivery or upon title of the Goods passing between the Buyer and the Seller, whichever is the earlier.
(f) If the Seller is prevented from delivering the Goods to the Buyer or if the Seller is prevented from fulfilling any of its other obligations under this Contract, due to events beyond the control of the Seller within the specified time, if any time is specified in the Contract, the Buyer will have no claims of any nature whatsoever against the Seller (including any right to terminate the Contract) and will accept delivery when the Goods are delivered as provided in the Contract or in accordance with clause 3(a).
(g) If the delay referred to in clause 3(f) extends for a period of longer than four months, then the Contract concerned (and no other Contract between the Buyer and the Seller), will automatically be rescinded.
(h) No claim of any nature will lie against the Seller for any Goods lost or damaged in transit through whatever cause, including negligence, and any carrier of the Goods will be deemed to be the agent of the Buyer even where such carrier has been engaged by the Seller.
4. Payment
(a) The Buyer must pay to the Seller the Price of the Goods (i) in accordance with the payment terms set out in the Application; or (ii) if the Buyer has not given to the Seller an Application, in full within 30 days of the date of the Seller’s invoice in respect of such Goods.
(b) If the Buyer fails to pay the invoiced price in full to the Seller in accordance with clause 4(a), the Buyer must pay the Seller interest calculated at a daily rate of interest equal based on an interest rate equal to a monthly rate of 1.5% on the unpaid amount from the date that the unpaid amount became due and payable to the date that the amount is paid in full.
(c) All payments to be made by the Buyer must be free and clear, without any set-off, deduction, counterclaim or condition of whatsoever nature.
5. Title and Related Matters
(a) The legal and equitable title to the Goods will only be transferred from the Seller to the Buyer when the Buyer has paid all that is owed to the Seller in respect of each and every Contract.
(b) The Buyer acknowledges that until the Buyer has paid all that is owed to the Seller in respect of each and every Contract, the Buyer holds the Goods as bailee for the Seller and that a fiduciary relationship exists between the Buyer and the Seller.
(c) Until the Seller receives full payment of all monies due to it from the Buyer, the Buyer (i) shall keep the Goods separate and in good condition as a fiduciary of the Seller, clearly showing the Seller’s ownership of the Goods; and (ii) shall keep books recording the Seller’s ownership of the Goods and the Buyer’s sale or otherwise of them in accordance with clauses 5(e) and 5(f); and (iii) if required by the Seller, shall on demand from the Seller, deliver the Goods up to the Seller.
(d) If the Buyer defaults in the payment of any amount owed by the Buyer to the Seller, then in addition to the Seller’s rights under clause 6(b), the Seller may take possession of the Goods wherever the Goods are located and the Buyer agrees that representatives of the Seller may enter upon the Buyer’s premises for that purpose. If the Goods are located on premises other than the Buyer’s premises, the Buyer agrees to procure the consent of the occupier of those premises to the representatives of the Seller entering upon those premises for that purpose.
(e) Despite clause 5(a), the Buyer may sell the Goods as fiduciary agent for the Seller to a third party in the normal course of the Buyer’s business provided that where the Buyer is paid by that third party, the Buyer holds the proceeds of sale (to the extent of the amount owing by the Buyer to the Seller at the time of receipt of such proceeds) on trust for the Seller. The Buyer must keep those proceeds separate for the Seller and not mix those proceeds with any other monies.
(f) If the Buyer uses the Goods in some manufacturing, construction or other process of its own or some third party, then the Buyer shall hold such part of the proceeds of such manufacturing, construction or other process as related to the Goods on trust for the Seller. The Buyer must keep that part of the proceeds separate on trust for the Seller and not mix those proceeds with any other monies.
6. Default
(a) The Buyer will be in default if: (i) the Buyer breaches this Contract; (ii) payment for the Goods has not been received by the Seller by the due date of payment; (iii) the Buyer being a natural person commits an act of bankruptcy or becomes an insolvent under administration; (iv) the Buyer being a body corporate has an application for winding up filed against it, a controller appointed, is in liquidation, in provisional liquidation, under administration or wound up or has any liquidator, provisional liquidator, receiver, receiver and manager or administrator appointed in respect of it or any part of Its property; or (v) the Seller forms the opinion that the Buyer’s credit worthiness or credit standing alters from that indicated in its Application.
(b) If the Buyer defaults, then, without prejudice to any of the Seller’s other rights and remedies, including its rights to claim damages: (i) the Seller will be entitled to treat the whole of the Contract and any other Contract with the Buyer as repudiated and cancel this Contract (and any other Contract between the Seller and the Buyer); and/or (ii) the Seller will be entitled to refuse to supply any Goods to the Buyer until the default has been rectified to the satisfaction of the Seller; and/or (iii) the Buyer must, if required to do so by the Seller, claim the return of any Goods in the Buyer’s possession where title has not passed to the Buyer; and/or (iv) the Seller can withdraw or vary any credit the Seller has provided to the Buyer; and/or (v) all monies owing by the Buyer to the Seller on any account will immediately become due and payable to the Seller.
(c) If the Seller terminates this Contract it will, at its option, have the same entitlements and the Buyer will have the same liabilities as each would at law, had the Buyer repudiated this Contract and the Seller terminated this Contract by acceptance of the Buyer’s repudiation.
7. Intellectual Property
(a) The Buyer warrants to the Seller that all documents (in whatever form) provided by or on behalf of the Buyer are accurate and that the Seller is entitled to use and rely on all such documents for the purposes of the Contract (and, in particular, the preparation of the Factory Drawings and the manufacture of the Custom Goods) and that such use and the manufacture of the Custom Goods in accordance with the Factory Drawings and any other directions, instructions and the like on the part of the Buyer do not infringe any third party’s intellectual property rights. The Seller is not required to check any such documents for errors, discrepancies, contradictions, omissions, ambiguity, errors, faults or inconsistencies.
(b) The Buyer indemnifies the Seller against all claims and all losses and damages incurred by the Seller arising out of (i) a breach by the Buyer of the warranty contained in clause 7(a); and (ii) any claim being made against the Seller by any third party asserting or alleging that the Factory Drawings and/or the Custom Goods infringe the intellectual property rights of such third party.
(c) The Buyer acknowledges and agrees that all and any intellectual property in the Factory Drawings and the Goods (including any dies, tools and other equipment which the Seller manufactures and/or uses in order to manufacture the Goods) is and shall remain the sole property of the Seller and nothing contained in this Contract grants or is deemed to grant to the Buyer any interest and/or any intellectual property rights in and to the above (other than the right to use the Goods forming the subject matter of a Contract).
8. No Warranties
(a) The Buyer must inspect the Goods on delivery of the Goods and any Goods alleged by the Buyer to be defective must be notified to the Seller in writing within 30 days of receipt of delivery of the Goods. The Seller reserves the right to inspect Goods alleged to be defective by the Buyer. If the Seller agrees and accepts that the Goods delivered to the Buyer are defective, the Seller may, at its absolute discretion replace or repair the goods at no additional cost to the Buyer or credit the purchase price of the Goods paid by the Buyer to the Buyer’s account.
(b) The Buyer may not assert a claim against the Seller after the Goods are used, sold, cut, processed or otherwise modified by the Buyer or if the Buyer is in default of any of the terms of payment stipulated in this Contract.
(c) Except as expressly provided to the contrary in the Contract, and to the maximum extent permitted by law, all terms, conditions, warranties, statements or undertakings, whether express, implied, statutory or otherwise which would relate to the Goods or to the Contract are excluded and, without limiting the a foregoing, the Seller makes no representation whether as to the merchantability or fitness of goods supplied by it for any purpose or otherwise.
(d) To the fullest extent that it is permitted to do so by law, the parties agree to exclude any terms which would otherwise be implied into this Contract by any law including the Trade Practices Act 1974 (“TPA”). Notwithstanding the foregoing provision, the liability of the Seller for breach of a condition or warranty implied into this Contract by law or the TPA other than a condition implied by section 69 of the TPA is limited, to a choice of the following to be at the Seller’s sole discretion: (i) the replacement of the Goods or the supply of equivalent Goods; or (ii) the repair of the Goods, or (iii) the payment of the cost of replacing the Goods or for acquiring equivalent Goods.
(e) In no event shall the Seller, its officers, employees or agents be liable for any other direct, indirect, incidental or consequential losses or damages of any kind or nature, whether for loss of profits or reputation, injury or damages or otherwise and including without limitation in contract, tort or otherwise and howsoever arising (including but not limited to losses or damages arising from the negligence of the Seller, its servants or agents) to the Buyer, and/or any users or purchaser of the Goods to third parties.
(f) To the extent permitted by law, the Seller’s liability arising out of any cause whatsoever (whether such cause is based in contract, negligence, strict liability, tort or otherwise) shall not exceed in the aggregate, the purchase price of the Goods paid by the Buyer.
9. Credit Information
(a) The Buyer irrevocably authorises the Seller, its servants and agents to make such enquiries as it deems necessary to investigate the credit worthiness of the Buyer from time to time including, but not limited to, the making of enquiries with persons nominated as trade references, the bankers of the Buyer and other credit provider or a credit reporting agency, and including personal credit and consumer credit information, LandData property inquiries and name searches (“information provider“). The Buyer authorises the information provider to disclose to the Seller such information concerning the Buyer which is within its possession and which is required by the Seller.
(b) The Buyer agrees that the information provided on any credit application signed by it concerning the Buyer may be disclosed to a credit reporting agency or other interested person.
10. Guarantee
(a) Where the Buyer is a company, then each of the directors signing the Application agrees, by their signature of the Application, to guarantee the fulfilment by the Buyer of all its obligations under this Contract and agrees to indemnify the Seller and keep the Seller indemnified in respect of any claims, demands, actions or costs arising out of or in connection with any act or omission of the Buyer in the performance of its obligations under this Contract.
(b) This clause 10 is: (i) a principal obligation and is not to be treated as ancillary or collateral to any other right or obligation; and (ii) independent of and not in substitution for or affected by any other security which the Seller may hold in respect of any obligation of the Buyer; and (iii) enforceable against the Such guarantors whether or not the Seller has taken any other steps against the Buyer any other person.
11. Miscellaneous
(a) The Buyer agrees that a certificate signed by any officer of the Seller or any partner of the Seller’s accountants setting out the balance owing by the Buyer to the Seller for any Goods will, in the absence of manifest error, be final, binding and conclusive upon the Buyer and any guarantor of the Buyer’s obligations.
(b) The Seller will be entitled to assign, transfer or novate this Contract (or any of its rights and/or obligations under this Contract) by written notice to the Buyer accordingly.
(c) Any Contract concluded under these Terms and Conditions will be governed in accordance with the law in force in the state of New South Wales and any applicable federal legislation and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales and to any federal courts.
(d) Any waiver by the Seller of a right or any consent to a breach under these terms and conditions must be in writing and signed by the Seller.
(e) Any leniency, indulgence or extension of time which may be granted by the Seller to the Buyer will not prejudice any if the Seller’s rights in any way, nor will they constitute a novation of the Contract or waiver of any of the Seller’s rights.
(f) If any provision contained in the Contract would, but for this clause, be unenforceable: (i) the provision must be read down to the extent necessary to avoid that result; and (ii) if the provision cannot be read down to that extent it must be severed without altering the validity and enforceability of the remainder of this Contract.
(g) Any notice to be given by a party under this Contract must be in writing and must be sent by post or facsimile to the address of that party shown in the Quotation, Order or Order Acceptance. 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