1.1 All goods supplied to Purchaser by Supplier under a supply contract are supplied on the following Terms and Conditions.
1.2 These Terms and Conditions cannot be varied or modified except by an instrument in writing signed by Supplier.
1.3 These Terms and Conditions take precedence over any term and conditions contained in any document of Purchaser or elsewhere and any such terms and conditions have no application to or effect on a supply contract.
1.4 Without prejudice to any rights accruing to either party under these Terms and Conditions, either party may terminate this agreement by providing the other party with 30 days written notice. 2.
For the purpose of these Terms and Conditions, unless the context otherwise necessarily requires:
2.1 “Purchaser” means any person, firm or corporation including his successors administrators and assigns who or which has requested the supply of goods by Supplier;
2.2 “Supplier” means Protective Fencing Pty Limited, ABN 88 000 375 584, 16 Pile Road, Somersby and its successors and assigns;
2.3 “additional charges” means charges in addition to the price of goods which may be made by Supplier pursuant to clause 5;
2.3A “Consumer Law” means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
2.4 “goods” includes any services associated with the supply and/or installation of goods;
2.4A “GST” means the goods and services tax under the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
2.5 “job site” means a site other than Supplier’s premises at which Purchaser requires delivery of goods under a supply contract;
2.6 “related corporation” in relation to Supplier or Purchaser means a corporation which is a related body corporate of Supplier or Purchaser (as the case may require) within the meaning of sections 9 and 50 of the Corporations Act 2001 (Cth);
2.7 “scheduling” means the process of determining from the Working Documentation all necessary information about the goods required under a supply contract to enable the goods to be manufactured, labelled and delivered;
2.8 “Supplier’s premises” means any place from which goods supplied under a supply contract are made available for collection by Purchaser;
2.9 “supply contract” means any agreement, however arising, for the supply of goods by Supplier to Purchaser and includes these Terms and Conditions, and all Working Documentation to the supply;
2.10 “Variation” means any variation whatsoever to a supply contract including but not limited to amendments to Working Documentation, scheduling and re-scheduling, loading requirements, delivery times and job sites;
2.11 “Working Documentation” means architectural drawings, site drawings, structural drawings and construction drawings, specifications and reinforcement schedules or such other similar documents which are provided by or on behalf of Purchaser to Supplier. Monkey
2A. CONSUMER LAW
2A.1 If the Consumer Law applies to the goods supplied under a supply contract, Supplier’s goods come with guarantees that cannot be excluded under the Consumer Law. Purchaser is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. Purchaser is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
3. PRICE AND PAYMENT
3.1 All goods are sold at Supplier’s ruling price at the time of placement of an order for the supply of goods. All applicable taxes, duties or levies (including GST) on the sale of the goods will be added to Purchaser’s account.
3.2 All quotations for the supply of goods are valid for 30 days from the date shown on the quotation.
3.3 Except as provided in clause 3.2, the price of goods is subject to change by Supplier without notice to Purchaser including, but not limited to, change to incorporate any increase in the cost of materials and/or labour and/or freight and cartage.
3.4 Subject to the terms of any extended credit agreed in writing by Supplier either generally or in relation to the supply contract, Purchaser must pay Supplier for goods in full no later than upon delivery of the goods the subject of the order.
3.5 Notwithstanding clause 3.4, Purchaser must pay Supplier in full for non-standard goods prior to Supplier commencing manufacture of those goods.
3.6 Purchaser must pay Supplier on demand interest at the rate of 24% per annum on all overdue amounts owed by Purchaser to Supplier which interest shall be calculated daily. All cost and expenses associated with collecting overdue amounts, including but not limited to legal fees on an indemnity basis and internal costs and expenses of Supplier, are to be paid by Purchaser as a debt due and payable under the supply contract. All Purchaser payments shall be applied first to such costs and expenses, secondly to the accrued interest and thirdly to the overdue amounts.
3.7 Purchaser shall not be entitled to retain any money owing to Supplier notwithstanding any default or alleged default by Supplier of the Terms and Conditions including, without limitation, the supply of allegedly faulty or defective goods. Purchaser must make payment to Supplier for goods purchased without set-off.
4.1 Supplier may in its absolute discretion refuse to supply goods under a supply contract where: a) goods are unavailable for any reason whatsoever; b) credit limits cannot be agreed upon or have been exceeded; or c) payment for goods previously supplied to Purchaser or any related corporation of Purchaser or to any other party who is, in the reasonable opinion of Supplier, associated with Purchaser under the same or another supply contract has not been received by Supplier.
4.2 Every purchase order by Purchaser for the supply of goods must: a) be in writing; b) be signed by an authorised representative of Purchaser; c) identify goods ordered and the total price; d) specify the required date of delivery; e) show Supplier’s quotation number; and f) if for non-standard goods, be accompanied by Working Documentation approved and signed by Purchaser showing all required dimensions.
4.3 An order will not be deemed by Supplier to have been placed by Purchaser until Supplier is satisfied that Purchaser has provided sufficient details of the goods required to enable Suppler to fill the order.
4.4 A variation must be in writing signed by Supplier and Supplier has an automatic extension of the time for delivery of the goods equal to the delay caused by the Variation.
4.5 A supply contract cannot be cancelled unless the prior written consent of Supplier is obtained. Where a supply contract is cancelled, Purchaser indemnifies Supplier against any losses, claims, damages, expenses or costs incurred by Supplier as a result of the cancellation, including, but not limited to loss of profit from other orders foregone as a result of the scheduling of the order which is subsequently cancelled.
4.6 Purchaser must deliver all Working Documentation without charge to Supplier and Supplier has no responsibility for the correctness of Working Documentation and is not liable to Purchaser if the working Documentation is not accurate. The Purchaser is responsible for ensuring that the Working Documentation is correct and accurate.
4.7 Lead times for all products may vary from time to time without notice. Supplier is not liable for any losses, claims, damages, expenses or costs experienced by Purchaser arising as a result of a variation in lead times. 5. ADDITIONAL CHARGES In addition to payment of the price of goods, Purchaser is responsible for: a) taxes (other than income tax), stamp duty or other statutory charges of levies whether State or Federal payable in relation to the supply of goods; in particular G.S.T.; b) the cost of delivery of goods to a job site or to Purchaser’s premises; c) storage charges where goods are not collected immediately upon delivery; d) demurrage costs or charges incurred by Supplier for attendance at a job site after the first 15 minutes, such charges to be calculated at reasonable industry rates; e) legal costs and disbursements on an indemnity basis incurred by Supplier in relation to a breach of a supply contract by Purchaser including, but not limited to a failure by Purchaser to pay for the goods on time; f) all costs, charges, expenses or any other outgoings incurred by Supplier with respect to any Variation by Purchaser; g) all costs or charges incurred by Supplier with respect to the recovery or return of goods from Purchaser whether or not such recovery or return of goods occurs in relation to any breach of a supply contract; h) any costs or charges incurred by Supplier in relation to the installation of goods; and i) the cost of any testing or inspection of goods, or products or materials used in relation to the manufacture of goods, which are required by Purchaser; j) all costs or charges incurred by Supplier for Purchaser’s payment to Supplier using bank or credit card.
6.1 Purchaser must give 2 business days’ notice of the date for delivery of goods by Supplier and unless otherwise agreed in writing, delivery shall be at Supplier’s premises during normal business hours and occurs on the earlier of either actual collection of goods or the provision of notice of delivery to Purchaser.
6.2 Where delivery of goods is agreed to be made at a job site: a) Purchaser shall give notice of the job site to Supplier 2 business days prior to Supplier’s intended delivery date. b) Delivery shall be as close to job site as in the opinion of Supplier or its agents physical conditions and safety allow and delivery occurs when goods arrive at that place; c) Unloading of goods at job site is the responsibility of Purchaser at Purchaser’s cost but Supplier reserves the right to unload goods in the absence of Purchaser and Purchaser shall indemnify Supplier against any resulting losses, claims, damages, expenses or costs; and d) Supplier is not liable for any damage to property or personal injury occurring on the job site and Purchaser shall indemnify Supplier against any charge or cost of whatsoever nature and kind incurred in relation to entering the job site.
6.3 Where a delivery of goods cannot be effected a delivery and return fee based on reasonable industry rates and an administration or storage fee will be charged to Purchaser at rates selected by Supplier.
6.4 A quantity, description, date, and place of delivery of goods as indicated on Supplier’s invoice or delivery docket or copies thereof (“the consignment note”) is conclusive evidence of quantity, description, date, and place of delivery of the goods. Purchaser warrants that the person who signs the delivery notice is authorised to receive the goods on behalf of Purchaser.
6.5 While Supplier will endeavour to meet delivery dates, any delay of delivery for any reason whatsoever will not entitle Purchaser to claim for any consequential loss or damage or to cancel, rescind or terminate the supply contract.
7. ACCEPTANCE OF GOODS
7.1 Subject to the Consumer Law, if Purchaser fails to advise Supplier in writing of any fault in goods or failure of goods to accord with a supply contract within 48 hours of delivery: a) Purchaser is deemed to have accepted the goods under the supply contract and to have accepted that the goods are not faulty and accord with the supply contract; and b) Purchaser shall keep Supplier indemnified from any claims, damages, expenses or costs resulting from or arising out of the use of the goods by Purchaser whether or not such goods are damaged or defective.
7.2 Non-standard goods which have been manufactured to Purchaser specifications under a supply contract will not be accepted for credit and Purchaser must pay a deposit of 20% of the value of the non-standard goods and then the balance before delivery of the non-standards goods.
7.3 Subject to paragraph 7.2 goods may be accepted for credit at the sole discretion of Supplier. To the extent permitted by law Supplier reserves the right to charge an administration and handling fee calculated in accordance with the adopted practice of a minimum charge of $50.00 up to a maximum of 15% of the full retail value of the goods. Freight incurred on goods returned will be to Purchaser’s account.
7.4 Goods are not deemed damaged or defective by reason only of the presence of rust, mill scale or rolling seams except as provided in AS3600.
7.5 Purchaser acknowledges that there may be minor variations in masses, dimensions and colours and Supplier is not liable for any losses, claims, damages, expenses or costs incurred or suffered by Purchaser as a result of such variations.
8. AGENCY AND ASSIGNMENT
8.1 Purchaser agrees that Supplier may at any time appoint or engage an agent to perform an obligation of Supplier arising out of or pursuant to a supply contract.
8.2 Supplier has the right to assign and transfer to any person or company all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from any supply contract provided that the assignee agrees to assume any duties and obligations of Supplier so assigned and transferred. The sale of all or substantially all of the issued shares in the share capital of Supplier or of a related corporation of Supplier is not an assignment of any supply contract and such sale shall not effect, modify, abrogate or terminate any supply contract or the validity or enforceability thereof.
8.3 Purchaser may not assign, or purport to assign, any of its obligations or rights under a supply contract without the prior written consent of Supplier.
9. RISK AND PROPERTY
9.1 Title to any goods delivered to Purchaser will not pass to Purchaser until Purchaser has paid all amounts that it owes to Supplier in full.
9.2 Property in goods delivered under a supply contract does not pass to Purchaser until all moneys due and payable to Supplier by Purchaser have been fully paid and, in the case of goods which are installed by Supplier, until Purchaser has inspected the completed installation and given to Supplier written acceptance that the goods and installation are satisfactory and accord with the supply contract.
9.3 Where goods are delivered by Supplier to Purchaser under a supply contract without payment in full of all moneys payable under the supply contract, Purchaser: a) holds the goods on trust for Supplier until all moneys due and payable by Purchaser has been fully paid; b) irrevocably appoints Supplier its attorney to do all acts and things necessary to ensure the retention of title to goods; and
- c) must separate and identify as belonging to Supplier goods delivered by Supplier from other goods which are held by Purchaser in storage for resale, distribution, incorporation or mixing of goods to make new goods.
9.4 Where Purchaser makes a new object from the goods, whether finished or not, or Purchaser mixes the goods with other goods or the goods become part of other goods (“new goods”), Purchaser agrees with Supplier:
- a) that the ownership of the new goods immediately passes to Supplier;
- b) that until payment of all sums owing to Supplier whether under the supply contract or any other contract Purchaser will hold the new goods on trust for Supplier; and c) if required by Supplier, to store the new goods in a manner that clearly shows the ownership of Supplier.
9.5 For the avoidance of doubt, the ownership of the new goods passes to Supplier at the begin¬ning of the operation or event by which the goods are converted into, are mixed with or become part of other goods.
9.6 Notwithstanding sub-clause 9.3 Purchaser may transfer, sell or dispose of goods, including new goods, to a third party in the ordinary course of business provided that: a) where Purchaser is paid by a third party in respect of goods including new goods, Purchaser shall hold the whole of the proceeds of sale less GST on trust for Supplier until all amounts owned by Purchaser to Supplier have been paid; or b) where Purchaser is not paid by a third party, Purchaser agrees to assign all Purchaser’s rights against such third party to Supplier upon Supplier giving Purchaser notice in writing to that effect and for the purpose of giving effect to such assignment Purchaser irrevocably appoints Supplier its attorney.
9.7 If Purchaser does not pay Supplier the amount Purchaser owes Supplier for the goods when due, Supplier may re-take possession of the goods. Supplier may enter any land or premises for the purpose of re-taking possession. If Supplier retakes possession of any goods, it may deal with them as it thinks fit.
9.8 Purchaser will be deemed to have accepted the terms of this clause 9 by placing an order for any goods, taking or accepting delivery of any goods, or using any goods whether or not Purchaser acknowledges or signs the terms of trade.
9A. PERSONAL PROPERTY SECURITIES ACT
9A.1 In this clause 9A:
(a) PPSA means the Personal Property Securities Act 2009 (Cth);
(b) words and phrases that have defined meanings in the PPSA have the same meaning as in the PPSA unless the context indicates otherwise.
9A.2 If any goods become an accession to or other property or become part of a product or mass, then:
(a) Supplier’s security interest continues in the other property, product or mass; and
(b) references to the goods include the other property, product or mass.
9A.3 Purchaser consents to the Seller perfecting any security interest that it considers these Terms and Conditions provides for by registration under the PPSA. Purchaser agrees to do anything Supplier reasonably asks to ensure that the security interest:
(a) is enforceable, perfected and otherwise effective; and
(b) has priority over all other security interests.
9A.4 To the extent the law permits, Purchaser waives its right to receive any notice (including notice of a verification statement) that is required by the PPSA. However, this does not prevent Supplier from giving a notice under the PPSA.
9A.5 Purchaser agrees not to exercise its rights to make any request of Supplier under section 275 of the PPSA. However, this does not limit Purchaser’s rights to request information other than under section 275.
9A.6 To the extent the law permits, Supplier need not comply with, and Purchaser may not exercise rights under, any provisions of Chapter 4 of the PPSA that may be contracted out of.
9A.7 If Supplier exercises a right, power or remedy in connection with this document or a security interest that it provides for, that exercise is taken not to be an exercise of a right, power or remedy under the PPSA unless Supplier states otherwise at the time of exercise. However, this clause does not apply to a right, power or remedy which can only be exercised under the PPSA.
9A.8 Neither Supplier or Purchaser will disclose any information of the kind mentioned in section 275(1) of the PPSA, except where disclosure is required by section 275(7). Purchaser will not authorise the disclosure of any information under that section or waive any duty of confidence that would otherwise permit non-disclosure under that section. This subclause does not apply if disclosure is required by law, to a related body corporate or to the party’s professional advisers.
9A.9 Purchaser must notify Supplier at least 14 days before it does any of the following: (a) changes its name; (b) changes its place of registration or incorporation; (c) changes or applies for an ACN, ABN, ARBN or ARSN under which an interest in any of the goods is or will be held.
10. WARRANTIES AND EXCLUSIONS
10.1 All express or implied terms, conditions, warranties, statements, assurances and representations in relation to any goods ordered from Supplier are hereby excluded from a supply contract save for:
- a) these Terms and Conditions;
- b) the conditions and warranties necessarily implied under the Consumer Law and any statutory modification or re-enactment thereof; and
- c) any other terms and conditions to which Supplier agrees in writing to be bound.
10.2 Any liability of Supplier which is not excluded by clause 10.1 is limited to the extent permitted by law to such one or more of the following as determined by Supplier in its absolute discretion: a) with respect to the supply of goods:
- i) the replacement of the goods or the supply of equivalent goods;
- ii) the repair of the goods; or
iii) the payment of the cost of replacing the goods or of
- iv) acquiring equivalent goods; or
- v) the payment of the cost of having the goods repaired; b) with respect to the supply of services:
- i) the re-supply of the services; or
- ii) the payment of the cost of having the services re-supplied.
10.3 Subject to the Consumer Law, Purchaser acknowledges that except for these Terms and Conditions, Supplier does not give or make any warranty assurance, promise or representation regarding the quality, fitness for use, suitability or merchantability of goods for any purpose whatsoever, and that in entering into the supply contract Purchaser has relied entirely on Purchaser’s own knowledge, skill and judgement.
10.4 Subject to the Consumer Law, Purchaser agrees that:
- a) any advice given by Supplier in relation to the use or installation of goods;
- b) any testing or inspection of goods at Purchaser’s request;
- c) any advice given by Supplier in connection with the use or installation of goods in accordance with specifications or design information provided by Purchaser to Supplier; and
- d) any advice given by Supplier in relation to the supply use or installation of goods where no specification or design information is provided by Purchaser; is given or undertaken on the basis that Supplier assumes no obligation or liability in respect thereof. Purchaser further agrees that where specifications or design information is provided by Purchaser, Supplier assumes no obligation or liability in respect of the supply of goods in accordance with the specifications or design information provided.
10.5 A supply contract is not a sale by reference to sample unless expressly so stated.
10.6 To the extent permitted by law, Supplier is not liable for losses, claims, damages, expenses or costs of any kind arising out of the loading or securing of loads of goods whether arising in negligence or otherwise.
10.7 Purchaser indemnifies Supplier in respect of all claims, damages, expenses or costs arising from any breach by Supplier of a third party’s rights in relation to any Working Documentation.
11. DEFAULT BY PURCHASER
11.1 Each of the following occurrences constitutes an event of default:
- a) Purchaser breaches or is alleged to have breached a supply contract for any reason (including, but not limited to, defaulting on any payment due under a supply contract);
- b) Purchaser: i) being a natural person, commits an act of bankruptcy; or ii) being a corporation, is subject to: A. a petition being presented, an order being made or a meeting being called to consider a resolution for Purchaser to be wound up, deregistered or dissolved; B. a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of Purchaser’s property and undertaking;
- the entering of a scheme of arrangement (other than for the purpose of restructuring); or
- any assignment for the benefit of creditors; or c) Purchaser ceases or threatens to cease conduct of its business in the normal manner.
11.2 Where an event of default occurs, except where payment in full has been received by Supplier, Supplier may: a) refuse to deliver goods; b) repossess and re-sell any goods delivered to Purchaser, the payment for which has not been received; or c) retain (where applicable) all moneys paid on account of goods or otherwise.
11.3 In addition to any action permitted to be taken by Supplier under 11.2 above, upon the occurrence of an event of default, Supplier may terminate all supply contracts and credit arrangements with Purchaser. No compensation will be paid to Purchaser and Supplier is not liable for costs, losses or claims as a result of the termination of supply contracts or credit arrangements.
11.4 For the purposes of 11.2(b) above, Purchaser grants an irrevocable licence to Supplier or its agent to enter Purchaser’s premises or job site in order to recover possession of the goods in question. Purchaser indemnifies Supplier in respect of any damage to property or personal injury which occurs as a result of Supplier entering the premises or job site of Purchaser.
11.5 Clause 11 does not limit the generality of any other clause of this agreement.
12.1 Any document addressed to Purchaser shall be deemed to be sufficiently served if: a) posted by ordinary pre-paid post addressed to Purchaser at Purchaser’s last known address and shall be deemed to have been received by Purchaser on the second business day following the date on which it was posted; or b) transmitted by facsimile transmission or electronic mail during normal business hours on a business day and shall be deemed to have been given on the business day which next follows the day of transmission.
12.2 A term or condition of this agreement (whether a whole clause or part of a clause) which is invalid, unlawful, void or unenforceable is capable of severance without affecting any other term or condition.
12.3 A certificate signed by the relevant branch manager for the time being of Supplier stating any matter or thing arising directly or indirectly out of a supply contract is prima facie evidence of the matters contained in such certificate and Purchaser agrees not to object to the admissibility of such a certificate in any legal proceedings.
12.4 No waiver by Supplier of any breach of the Terms and Conditions will be construed as a waiver of any subsequent breach of the same or any other Term or Condition.
13. FORCE MAJEURE
13.1 Supplier will not be liable for any loss, damage or expense suffered by Purchaser caused by Supplier’s failure to complete the order or to deliver products at all, or at the estimated time as a result of causes beyond Supplier’s reasonable control, including but not limited to any breach or default of the order by Purchaser, compliance with any laws, regulations, orders, acts, instructions or priority requests of governments, acts of God, fires, floods, weather, strikes, lockouts, factory shutdown or embargoes, wars, riots, delay or shortage in transportation or inability to obtain labour, manufacturing materials or other materials from Supplier’s normal suppliers.
13.2 Any delay resulting from such cause set out in clause
13.1 will, at Supplier’s absolute discretion:
- a) immediately extend the estimated date for performance by Supplier of any obligations by the period of the delay; or
- b) entitle Supplier to terminate the supply contract by notice to the Purchaser in which no compensation is payable to Purchaser and Supplier is not liable for any costs, losses or claims as a result of termination of the supply contract.
14.1 Words defined in A New Tax System (Goods and Services Tax) Act 1999 have the same meanings when used in this clause.
14.2 This clause applies if, during the continuance of a supply agreement, any person is or may become liable to pay GST for any supply under a supply agreement (in this clause called “Taxable Supply”) for which the amount payable has not been calculated on a GST inclusive basis.
14.3 In addition to any payments to a party (in this clause called the “Receiving Party”) by another party (in this clause called the “Paying Party”) under the supply contract (in this clause called the “GST Exclusive Consideration”) the Paying Party must, upon receipt of an invoice from the Receiving Party, pay GST on the Taxable Supply to the Receiving Party of an amount equal to the GST Exclusive Consideration multiplied by the GST Rate.
14.4 The Paying Party must pay GST at the same time and on the same basis as the GST Exclusive Consideration under the supply agreement is payable.
14.5 The Receiving Party must issue an invoice or invoices (containing such particulars as are required by the GST Law in order that the Paying Party may obtain an input tax credit for the amount of GST payable on the Taxable Supply) to the Paying Party for the amount of GST for the Taxable Supply.
14.6 If the Receiving Party or the Paying Party determines, on reasonable grounds, that the amount of GST for any Taxable Supply under the agreement differs for any reason from the amount of GST payable by the Paying Party under this clause, the Receiving Party and the Paying Party must adjust the amount of GST paid or payable by the Paying Party for the difference and, if the Paying Party has overpaid, the Receiving Party must refund the overpaid amount to the Paying Party.
14.7 Where an Adjustment Event in relation to any Taxable Supply has occurred the Receiving Party must provide an Adjustment Note to the Paying Party within five business days.
15. WHOLE AGREEMENT
15.1 These conditions of sale and any variation expressed in writing by Supplier to Purchaser represent the whole agreement between the parties relating to the subject matter of these terms and supersedes all oral and written negotiations and communications by and on behalf of either of the parties.
15.2 Purchaser has not, in entering into a supply contract, relied on any warranty, representation or statement, whether oral or written, made or published by Supplier or any of its servants or agents relating to or in connection with the subject matter of a supply contract.