GENERAL TERMS AND CONDITIONS
For the purpose of this contract:
Consequential Loss means any loss or damage arising from a breach of contract or agreement (including breach of this contract), tort, or any other basis in law or equity including, but without limitation to, loss of profits, loss of revenue, loss of production, loss or denial of opportunity, loss of access to markets, loss of goodwill, indirect or remote or unforeseeable loss, loss of business reputation, future reputation or publicity, or any similar loss which was not contemplated by the parties at the time of entering this contract.
Customer means the Customer (or any person acting on behalf of and with the authority of the Customer) as described on any quotation, work authorisation, or the Customer/Applicant identified in the cover page of the credit application or other form as provided by the Supplier to the Customer.
Goods means all goods supplied by the Supplier to the Customer and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Supplier to the Customer.
PPSA means the Personal Property Securities Act 2009 (Cth).
GST means the goods and services tax imposed under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Price means all monies payable by the Customer to the Supplier in accordance with this contract (including with respect to the Goods).
Supplier means Pipe Couplings Australasia Pty Ltd (ABN 67 001 298 906), its successors and assigns.
2.1 Any instructions received by the Supplier from the Customer for the supply of Goods and the Customer’s acceptance of Goods supplied by the Supplier, or the Customer signing this contract (whichever occurs first) will constitute acceptance of the terms and conditions set out in this contract.
2.2 Where more than one (1) Customer has entered into this contract, the Customers will be jointly and severally liable for all payments of the Price.
2.3 Upon acceptance of this contract by the Customer the terms and conditions contained in this contract are legally binding and can only be amended with the written consent of the Supplier.
2.4 The Customer must give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer (whether or any change in the Customer’s name, any change to the majority ownership in shares, sale of business and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer will be liable for any loss incurred by the Supplier as a result of the Customer’s failure to comply with this clause.
2.5 Goods are supplied by the Supplier only on the terms and conditions set out in this contract to the exclusion of anything to the contrary in the terms of the Customer’s order, notwithstanding that any such order is placed on terms that purport to override any provision of this contract.
3. Price and Payment
3.1 The Supplier agrees to supply the Goods in consideration of the Customer paying the Price.
3.2 At the Supplier’s sole discretion the Price will be:
(a) as indicated on invoices provided by the Supplier to the Customer in respect of Goods supplied; or
(b) the Supplier’s quoted Price (subject to clause 3.3) which will be binding provided that the Customer accepts the Supplier’s quotation.
3.3 The Supplier reserves the right to change the Price in the event of a variation to the Supplier’s quotation. For example, a variation may arise due to an increase to the Supplier in the cost of materials and labour in the supply of the Goods. Such variations will be charged for on the basis of the Supplier’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
3.4 Time for payment for the Goods will be of the essence and will be stated on the invoice or any other forms as provided by the Supplier to the Customer. If no time is stated, then payment will be due within thirty (30) days from the end of the month in which an invoice is issued.
3.5 Unless otherwise expressly stated, GST and other taxes and duties that may be applicable will be added to the Price.
4. Manufacture and Delivery of Goods
4.1 Where the Supplier and Customer agree to specifications for any Goods, the Supplier will manufacture the relevant Goods in accordance with those specifications.
4.2 The Goods will be delivered by the Supplier to the Customer’s nominated address by the delivery date (if any) specified in an invoice or any other forms as provided by the Supplier to the Customer.
4.3 If the Supplier becomes aware of an event that will that prevent delivery of the Goods by a specified delivery date, the Supplier will notify the Customer immediately and the Supplier accepts no loss or liability to the Customer arising as a result of a failure by the Supplier to deliver the Goods by any stipulated delivery date.
4.4 Delivery of the Goods will be deemed to have taken place upon the Customer taking possession of the Goods at the Customer’s nominated address.
4.5 Unless otherwise expressly agreed in writing by the Supplier, the costs of Delivery are included in the Price.
4.6 The Customer must make all arrangements necessary to take Delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Supplier will be entitled to charge a reasonable fee for redelivery.
4.7 The failure of the Supplier to deliver will not entitle either party to treat this contract as repudiated.
4.8 The Supplier will not be liable for any loss or damage whatsoever due to failure by the Supplier to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of the Supplier.
4.9 If there is a default by the Customer, the Goods may be warehoused or otherwise held at any place or places at the sole discretion of the Supplier at the Customer’s expense until the Customer complies with all of the requirements and conditions of the Supplier.
5.1 All risk in the Goods passes to the Customer on delivery.
5.2 Where the Customer expressly requests the Supplier to deliver the Goods to an unattended location then such Goods will be left at the Customer’s sole risk and it will be the Customer’s responsibility to ensure the Goods are insured adequately or at all.
5.3 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, the Supplier is entitled to receive all insurance proceeds payable for the Goods. The production of this contract by the Supplier is sufficient evidence of the Supplier’s rights to receive the insurance proceeds without the need for any person dealing with the Supplier to make further enquiries.
6.1 The Supplier and the Customer agree that ownership of the Goods will not pass until the Customer has:
(a) paid the Supplier all amounts owing for the particular Goods; and
(b) met all other obligations due by the Customer to the Supplier in respect of all contracts between the Supplier and the Customer.
6.2 Receipt by the Supplier of any form of payment other than cash will not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Supplier’s ownership and rights in respect of the Goods will continue.
6.3 It is further agreed that:
(a) where practicable the Goods must be kept separate and identifiable until the Supplier has received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods passes from the Supplier to the Customer in accordance with this contract, the Supplier may at any time prior give notice in writing to the Customer to return the Goods or any of them to the Supplier as a result of the breach of this contract by the Customer. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods will cease; and
(c) the Supplier will have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to the Supplier then the Supplier or the Supplier’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods and the Customer grants its irrevocable authority to do so; and
(e) the Customer is only a bailee of the Goods and until such time as the Supplier has received payment in full for the Goods then the Customer holds any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to the Supplier for the Goods, on trust for the Supplier; and
(f) the Customer must not deal with the money of the Supplier in any way which may be adverse to the Supplier; and
(g) the Customer must not charge the Goods in any way nor grant nor otherwise give any security interest in the Goods while they remain the property of the Supplier; and
(h) the Supplier can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Supplier will be the owner of the end products.
7. Personal Property Securities Act 2009 (“PPSA”)
7.1 In this clause:
(a) the terms ‘attachment’, ‘financing statement’, ‘financing change statement’, ‘purchase money security interest’ and ‘security interest’ have the meaning given to it by the PPSA; and
(b) the term ‘security agreement’ means the security agreement under the PPSA created between the Customer and the Supplier pursuant to this contract.
7.2 The Customer acknowledges and agrees that this contract:
(a) constitutes a security agreement for the purposes of the PPSA; and
(b) creates a security interest in:
(i) all Goods previously supplied by the Supplier to the Customer (if any); and
(ii) all Goods that will be supplied in the future by the Supplier to the Customer,
including, without limitation, a purchase money security interest over the Goods and that the attachment of the security interest over the Goods has in no way been deferred or postponed.
7.3 The Customer undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to:
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 7.3(a)(i) or 7.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;
(d) not to do anything that results in the Supplier having less than the security or priority granted by the PPSA that the Supplier assumed at the time of that perfection;
(e) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Supplier; and
(f) immediately advise the Supplier of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
7.4 The Supplier and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by this contract.
7.5 The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
7.6 The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
7.7 Unless otherwise agreed to in writing by the Supplier, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
7.8 The Customer must unconditionally ratifies any actions taken by the Supplier under clauses 7.3 to 7.5.
8. Security and Charge
8.1 Despite anything to the contrary contained herein or any other rights which the Supplier may have:
(a) where the Customer is the owner of land, realty or any other asset capable of being charged, both the Customer agrees to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Supplier or the Supplier’s nominee to secure all amounts and other monetary obligations payable under this contract. The Customer acknowledges and agrees that the Supplier (or the Supplier’s nominee) will be entitled to lodge where appropriate a caveat, which caveat will be withdrawn once all payments and other monetary obligations payable hereunder have been met;
(b) should the Supplier elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis; and
(c) the Customer agrees to irrevocably nominate constitute and appoint the Supplier or the Supplier’s nominee as the Customer’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 8.1.
9.1 The Customer must within ninety (90) days of delivery of the Goods (time being of the essence):
(a) notify the Supplier in writing of any alleged defect in the Goods; and
(b) return the Goods to the Supplier for inspection by the Supplier.
9.2 If the Customer fails to comply with clause 9.1, the Goods will be deemed to be free from any defect or damage.
9.3 If, within a reasonable period of time after the Supplier has inspected the Goods, the Supplier determines (acting reasonably) that the defects was not caused by the Supplier, the Supplier will have no responsibility or liability for any Claim arising out of, or related to, the Goods.
9.4 For defective Goods, which the Supplier has agreed in writing that the Customer is entitled to reject, the Supplier’s liability is limited to either (at the Supplier’s discretion) replacing the Goods or refunding the Price for the Goods.
9.5 Other than as contemplated by the clause 9, the Supplier will have no responsibility or liability for any Claim arising out of, or related to, the Goods, including but not limited to, any defects in the Goods, or from the use of the Goods by the Customer.
9.6 Goods will not be accepted for return unless in accordance with this clause 9.
10.1 The Customer warrants as follows:
(a) It has not relied on any warranty or representation made by the Supplier except for those explicitly set out in this contract.
(b) It has the financial resources to purchase the Goods for the Price and to otherwise comply with its obligations under this contract.
(c) It is not under any legal impediment of any kind (including minority) that would prevent it from being bound by this contract.
11. Default and Consequences of Default
11.1 Interest on overdue invoices will accrue daily from the date when payment becomes due, until the date of payment, at a rate of ten percent (10%) per calendar month (and at the Supplier’s sole discretion such interest will compound monthly at such a rate) after as well as before any judgment.
11.2 In the event that the Customer’s payment is dishonoured for any reason the Customer will be liable for any dishonour fees incurred by the Supplier.
11.3 If the Customer:
(a) defaults in payment of any invoice when due; or
(b) the performance of any obligation imposed on it under this contract; and/or
(c) breaches any warranty or representation contained in the contract,
the Customer must indemnify the Supplier from and against all liability, claims, losses, damages, costs and fines and disbursements incurred by the Supplier in connection with that default (including, without limitation, pursuing the debt including legal costs on a solicitor and own client basis and the Supplier’s collection agency costs). For the avoidance of doubt, the Supplier does not have to incur an expense or cost before claiming the benefit of the indemnity provided under this clause.
11.4 Without prejudice to any other remedies the Supplier may have, if at any time the Customer is in breach of any obligation (including those relating to payment) the Supplier may suspend or terminate the supply of Goods to the Customer and any of its other obligations under this contract. The Supplier will not be liable to the Customer for any loss or damage the Customer suffers because the Supplier has exercised its rights under this clause.
11.5 Without prejudice to the Supplier’s other remedies at law the Supplier will be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Supplier will, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise), trustee in bankruptcy or similar person is appointed in respect of the Customer or any asset of the Customer.
12.1 The Supplier may cancel this contract or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer.
12.2 On giving such notice the Supplier will repay to the Customer any sums paid in respect of the Price. The Supplier will not be liable for any loss or damage whatsoever arising from such cancellation.
13. Privacy Act 1988 (Cth)
13.1 The Customer agrees and consents for the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Supplier.
13.2 The Customer agrees that the Supplier may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by the Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Customer.
The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988 (Cth).
13.3 The Customer consents to the Supplier being given a consumer credit report to collect overdue payment on commercial credit.
13.4 The Customer agrees that personal credit information provided may be used and retained by the Supplier for the following purposes (and for other purposes as agreed between the Customer and the Supplier or required by law from time to time):
(a) the provision of Goods;
(b) the marketing of Goods by the Supplier, its agents or distributors;
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods;
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
13.5 The Supplier may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
13.6 The information given to the credit reporting agency may include:
(a) personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
(b) details concerning the Customer’s application for credit or commercial credit and the amount requested;
(c) advice that the Supplier is a current credit provider to the Customer;
(d) advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
(e) that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
(f) information that, in the opinion of the Supplier, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customers credit obligations);
(g) advice that a cheque drawn by the have been dishonoured more than once; and/or
(h) that credit provided to the Customer by the Supplier has been paid or otherwise discharged.
14. General provisions
14.1 The Supplier and Customer agree that the terms of this contract are confidential and must not be disclosed to a third party without the other parties prior written consent.
14.2 If any provision of this contract is held to be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions will not be affected, prejudiced or impaired.
14.3 If any provisions of this contract are inconsistent with the PPSA, the PPSA will prevail to the extent of that inconsistency.
14.4 This contract will be governed by the laws of New South Wales, Australia and are subject to the exclusive jurisdiction of the courts of New South Wales.
14.5 The Supplier will not be under any liability whatsoever to the Customer for any Consequential Loss.
14.6 In the event of any breach of this contract by the Supplier the remedies of the Customer will be limited to damages which under no circumstances must exceed the Price of the Goods.
14.7 The Supplier will be discharged from all liability whatsoever in connection with the Goods unless proceedings are served within twelve (12) months from delivery of the particular Goods.
14.8 The Customer will not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute.
14.9 The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent. The Supplier may assign any or all of the Supplier’s rights and obligation under this contract to a third party without the Customer’s consent.
14.10 The Customer agrees that the Supplier may review this contract at any time. If, following any such review, there is to be any change to this contract, then that change will take effect from the date on which the Supplier notifies the Customer of such change. Except where the Supplier supplies further Goods to the Customer and the Customer accepts such Goods, the Customer will be under no obligation to accept such changes with respect to those Goods already supplied.
14.11 No modification amendments or other variation of this contract will be valid and binding on the Supplier unless made in writing and duly executed by and on behalf of the Supplier.
14.12 Neither party will be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
The failure by the Supplier to enforce any provision of these terms and conditions will not be treated as a waiver of that provision, nor will it affect the Supplier’s right to subsequently enforce that provision.