Terms of Trade

3.1 The Supplier may provide the Customer with a Quote. Any Quote issued by the Supplier is valid for 7 days from the date of issue.

3.2 Unless otherwise expressly agreed in writing, a Quote does not include the costs for delivery of the Goods or Services.

3.3 Quotes are based upon the cost available at the time of preparation of the Quote and assume the timely supply by the Customer of necessary material and instructions to the Supplier.

3.4 The Supplier reserves the right to amend any Quote before the Order is accepted to take into account any rise or fall in the cost of completing the Order. The Supplier will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will be the estimate or Quote to these terms of trade.

3.5 If the Customer wishes to vary its requirements after a Quote has been prepared by the Supplier, the Supplier reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by the Supplier in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods or Services or both.

3.6 An indication in a Quote of the time frame for the provision of the Goods or Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under chapter 3, part 3-2, division 1 of the ACL, this estimate is not binding upon the Supplier.

4.1 Every Order by the Customer for the provision of Goods or Services must be submitted in writing on the Supplier’s standard Order form as attached in the Annexure (unless otherwise agreed).

4.2 An Order will only be deemed to be placed by the Customer if the Order clearly identifies the Goods or Services ordered and the Supplier’s Quote. Any costs incurred by the Supplier in reliance on incorrect or inadequate information provided by the Customer in an Order may result in the imposition of an Additional Charge.

4.3 Orders must be signed by an authorised representative of the Customer and must specify the required date of delivery.

4.4 Placement of an Order by the Customer signifies acceptance by the Customer of these terms of trade and the most recent Quote provided by the Supplier relating to that Order.

4.5 Following the placement of an Order, the Supplier is not obliged to commence supply until the Order has been accepted by the Supplier in writing.

4.6 The Supplier may in its absolute discretion refuse to accept an Order where:

1. Goods are unavailable for any reason whatsoever;
2. credit limits cannot be agreed upon or have been exceeded; or
3. payment for Goods previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of the Supplier, associated with the Customer under the same or another supply contract, has not been received by the Supplier.

4.7 An accepted Order cannot be cancelled without the prior written consent of the Supplier. Where an Order is cancelled, the Customer indemnifies the Supplier against any Losses incurred by the Supplier as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.

Variation

4.8 An Order may only be varied with the written consent of the Supplier. The Supplier reserves the right to vary the Order to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates.

4.9 The Supplier may vary an Order by written notice to the Customer in order to:

1. take account of any rise or fall in the cost of completing the Order; or
2. correct any typographical errors in the Order.

5.1 The Supplier may, in its absolute discretion, issue an invoice to the Customer in any one or more of the following ways:

1. prior to commencing the provision of the Goods or Services, for an amount equal to the Quote and Additional Charges where the Supplier has not previously carried out work for the Customer or where the Supplier chooses to do so;
2. at the end of each week before the Order is completed, the Supplier may issue one or more invoices for a proportion or the whole of the amount of the Quote (the proportion to be calculated at the Supplier’s discretion either for work done to that point, work in the future or both) and require that proportion of the Quote be paid in advance of any further Goods or Services being provided; or
3. upon completion of the provision of the Goods or Services or any time after such completion, for an amount equal to the Quote or the balance of the Quote outstanding, any Additional Charges and any amount not previously invoiced, or if no Quote was provided, for an amount representing the Supplier’s charge for the work performed in completing the Order and for any Additional Charges.

5.2 The amount payable by the Customer will be the amount set out in the invoice. This will be calculated as:

1. the amount for the Goods or Services (or both) as set out in the Quote and any Additional Charges; or
2. where no Quote has been provided by the Supplier, the Supplier’s usual charges for the Goods or Services (or both) as described in the Order; and
3. any costs for delivery or collection of the Goods.

5.3 The Customer must pay an invoice issued by the Supplier to the Supplier within 14 days of a valid tax invoice being issued to the Customer.

5.4 If any invoice is due but unpaid, the Supplier may withhold the provision of any further Goods or Services until overdue amounts are paid in full.

5.5 The Supplier may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to the Supplier.

5.6 The Customer is not entitled to retain any money owing to the Supplier regardless of any default or alleged default by the Supplier of these terms of trade, including (but not limited to) the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard or a delay in the provision of Goods or Services. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a consumer guarantee under the ACL.

5.7 Time is of the essence in respect of all payments due to the Supplier.

5.8 The Customer is to pay the Supplier on demand interest at the rate of 10% per year on all overdue amounts owed by the Customer to the Supplier, calculated daily.

5.9 All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees and internal costs and expenses of the Supplier, are to be paid by the Customer as a debt due and payable under these terms of trade.

5.10 The Customer and the Supplier agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other applicable legislation governing GST.

6.1 The Supplier may require the Customer to pay Additional Charges in respect of Costs incurred by the Supplier as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by the Supplier in order for it to provide the Goods or Services within the specified time frame (if any).

6.2 The imposition of Additional Charges may also occur as a result of:

1. cancellation by the Customer of an Order where cancellation results in Loss to the Supplier;
2. storage costs for Goods not collected from the Supplier within 1 week of the date on which the Goods are manufactured, fabricated, created or formed;
3. photocopying, courier, packing or handling charges not included in the Quote;
4. Government or council taxes or charges not included in the Quote; or
5. additional work required by the Customer or any other occurrence which causes the Supplier to incur costs in respect of the Customer’s Order additional to the quoted cost.

7.1 The Supplier will use its best endeavours to deliver each order to the location notified by the Customer between the ordinary business hours of the Supplier prior to the delivery date indicated in the Order.

7.2 Delay in delivery of the Goods shall not entitle the Customer to terminate the Order and the Customer shall not be excused from paying for the Goods by reason of such delay.

7.3 Delivery dates are dependent on the Customer providing such information and facilities as the Supplier requires in order to deliver the Goods. The Supplier will not be liable for any damage or loss arising, directly or indirectly, out of delay in delivery or non-delivery and whether in respect of the whole or part of the Goods ordered, nor for any loss of profit or consequential loss however arising, whether or not the delay or non-delivery is attributable to the Supplier or to some cause outside the Supplier’s control.

7.4 Delivery of the Goods is at all times at the risk of the Customer.

7.5 The Customer may also collect the Order at the Supplier’s premises. The Supplier will use its best endeavours to prepare each Order for collection at the Supplier’s premises between the ordinary business hours of the Supplier prior to the delivery date indicated in the Order. The Supplier will notify the Customer as soon as each Order is ready for collection. The Customer must collect the order from the Supplier’s premises with 7 days of notice.

7.6 The Supplier is not required to release the Goods for collection by the Customer until the Supplier has received full payment for the Goods.

7.7 If the Customer fails to advise the Supplier in writing of any fault in Goods or failure of Goods to accord with the Customer’s Order within 24 hours of delivery/collection, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer’s Order. Nothing in this paragraph affects the Customer’s rights for any alleged failure of a consumer guarantee under the ACL.

7.8 The Customer agrees to pay all costs for delivery of the Goods from the Supplier’s warehouse (including, without limitation, shipping and land customs, insurance, port charges, release fees, local authority charges and imposts).

8.1 Risk in the Goods passes to the Customer upon dispatch of the Goods from the Supplier’s premises or collection the Goods by the Customer’s agent or courier as the case may be.

8.2 Property and title in Goods supplied to the Customer under these terms of trade do not pass to the Customer until all money (including money owing in respect of other transactions between the Supplier and the Customer) due and payable to the Supplier by the Customer have been fully paid.

8.3 Where Goods are supplied by the Supplier to the Customer without payment in full, the Customer:

1. is a bailee of the Goods until title in them passes to the Customer;
2. irrevocably appoints the Supplier to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of the Supplier with respect to the Goods under applicable law;
3. must be able upon demand by the Supplier to separate and identify as belonging to the Supplier the Goods supplied by the Supplier from other goods which are held by the Customer;
4. must not allow any person to have or acquire any security interest in the Goods;
5. agrees that the Supplier may repossess the Goods if payment is not made within 7 days (or such longer time as the Supplier may, in its complete discretion, approve in writing) of the supply of the Goods; and
6. the Customer grants an irrevocable licence to the Supplier or its agent to enter the Customer’s premises in order to recover possession of Goods pursuant to this paragraph. The Customer indemnifies the Supplier for any damage to property or personal injury which occurs as a result of the Supplier entering the Customer’s premises.

8.4 Where Goods are supplied by the Supplier to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by the Supplier in respect of those Goods, and:

1. the Customer makes a new object from the Goods, whether finished or not;
2. the Customer mixes the Goods with other goods; or
3. the Goods become part of other goods (New Goods),

the Customer agrees with the Supplier that the ownership of the New Goods immediately passes to the Supplier. The Customer will hold the New Goods on trust for the Supplier until payment of all sums owing to the Supplier whether under these terms of trade or any other contract have been made. The Supplier may require the Customer to store the New Goods in a manner that clearly shows the ownership of the Supplier.

8.5 For the avoidance of doubt, under paragraph 8.4, the ownership of the New Goods passes to the Supplier at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.

8.6 Despite paragraph 8.3, the Customer may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business. This is provided that:

1. where the Customer is paid by a third party in respect of Goods including New Goods, the Customer holds the whole of the proceeds of sale, less any GST, on trust for the Supplier in a separate account, until all amounts owned by the Customer to the Supplier have been paid; or
2. where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to the Supplier upon the Supplier giving the Customer notice in writing to that effect and for the purpose of giving effect to that assignment the Customer irrevocably appoints the Supplier as its attorney.

8.7 Where Goods are supplied by the Supplier to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by the Supplier in respect of those Goods, the Customer acknowledges that the Supplier has a right to register and perfect a personal property security interest.

8.8 If:

1. a PPS Law applies or commences to apply to these terms of trade or any transaction contemplated by them, or the Supplier determines (based on legal advice) that this is the case; and
2. in the Supplier’s opinion, the PPS Law:
   1. does or will adversely affect the Supplier’s security position or obligations; or
   2. enables or would enable the Supplier’s security position to be improved without adversely affecting the Customer,

the Supplier may give notice to the Customer requiring the Customer to do anything (including amending these terms of trade or execute any new terms and conditions) that in the Supplier’s opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph 8.8(b)(i) or improve the security position as contemplated in paragraph 8.8(b)(ii). The Customer must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph, in the Supplier’s opinion the Supplier’s security position or obligations under or in connection with these terms of trade have been or will be materially adversely affected, the Supplier may by further notice to the Customer cancel these terms of trade. If this occurs, the Customer must pay to the Supplier any money owed to the Supplier by the Customer immediately.

9.1 The Customer must comply with all applicable statutory or regulatory requirements in relation to the Goods.

9.2 The Customer must not:

1. use the Intellectual Property Rights of the Supplier:
   1. without the Supplier’s written approval; and
   2. in relation to any Goods, items or products except the Goods supplied to the Customer by the Supplier;
2. do or permit to be done any act or thing that is inconsistent with the reputation of the Supplier or the Goods.

9.3 The Customer indemnifies the Supplier against any Losses incurred by the Supplier as a result of the breach of this clause 9. This includes, but is not limited to, loss of profit from other orders foregone as a result of any third party claim arising out of the breach.

10.1 These terms of trade commences on the first Order is placed by the Customer and ends when terminated in accordance with any express right of termination set out in these terms of trade.

11.1 In the absence of any breach of these terms of trade, either party may terminate these terms of trade by providing at least 30 days’ written notice to the other party.

11.2 Either party may terminate these terms of trade if:

1. the other party is in material breach of any of its obligations under these terms of trade and:
   1. the breach is capable of remedy and fails to remedy the breach for a period of 30 days after receipt of a written notice by the other party requiring rectification of the breach; or
   2. the breach is incapable of remedy; or
2. an Insolvency Event occurs to the other party.

11.3 Exercise of the right of termination afforded to either party under this clause will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of these terms of trade.

11.4 The obligations of the parties that by their nature could reasonably be construed as being intended to continue to apply beyond the termination of these terms of trade will continue to apply.

12.1 The Customer expressly agrees that use of the Goods and Services is at the Customer’s risk. All information, specifications and samples provided by the Supplier in relation to the Goods or Services are approximations only and, subject to any consumer guarantees under the ACL, small deviations or slight variations from them which do not substantially affect the Customer’s use of the Goods or Services will not entitle the Customer to reject the Goods upon delivery or to make any claim in respect of them.

12.2 Subject to any consumer guarantees under the ACL, the Supplier gives no warranty in relation to the Goods or Services provided or supplied. Under no circumstances is the Supplier or any of its suppliers liable or responsible in any way to the Customer or any other person for any loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the Goods or Services. This includes their form, content and timeliness of deliveries, failure of performance, error, omission, defect, including, without limitation, for and in relation to any of the following:

1. any Goods or Services supplied to the Customer;
2. any delay in supply of the Goods or Services; or
3. any failure to supply the Goods or Services.

12.3 Any advice, recommendation, information, assistance or service given by the Supplier in relation to Goods or Services or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. The Supplier does not accept any liability or responsibility for any Loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.

12.4 To the fullest extent permissible at law, the Supplier is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on terms of trade, negligence, strict liability or otherwise, even if the Supplier has been advised of the possibility of damages.

12.5 The Customer acknowledges that the Goods or Services are not for personal, domestic or household purposes unless otherwise agreed between the parties.

12.6 The Supplier acknowledges that the ACL may give to the Customer certain consumer guarantees (if the Customer is defined as a consumer in section 3 of the ACL), which cannot be restricted, limited or varied. To the extent permitted by law, the liability of the Supplier for a breach of a condition or warranty is limited to the replacement of the Goods, or the payment of the cost of replacing the Goods, as determined by Supplier.

13.1 The Customer indemnifies and keeps indemnified the Supplier, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against the Supplier or, for which the Supplier is liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Order or the subject matter of these terms of trade.

13.2 This includes, but is not limited to, any legal costs incurred by the Supplier in relation to meeting any claim or demand or any party or party legal costs for which the Supplier is liable in connection with any such claim or demand.

13.3 This provision remains in force after the termination of these terms of trade.

14.1 If circumstances beyond the Supplier’s control prevent or hinder its provision of the Goods or Services, the Supplier is free from any obligation to provide the Goods or Services while those circumstances continue. The Supplier may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.

14.2 Circumstances beyond the Supplier’s control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.

15.1 If a dispute arises between the Customer and the Supplier, the following procedure applies:

1. A party may give another party a notice of the dispute and the dispute must be dealt with in accordance with the procedure set out in this paragraph.
2. A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in respect of a dispute unless the dispute has been referred for resolution in accordance with this paragraph.
3. A party must not oppose any application for a stay of any legal proceedings that may be issued in respect of a dispute pending the completion or termination of the procedure set out in this paragraph.

15.2 If a dispute is notified, the dispute must immediately be referred to the parties’ respective senior management. Those representatives must endeavour to resolve the dispute as soon as possible and in any event within 10 Business Days (or other period as agreed).

15.3 Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation. The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation (Guidelines) which operate at the time the matter is referred to ACDC. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated into these terms of trade. This paragraph survives termination of these terms of trade.

15.4 Despite the existence of a dispute (including the referral of the dispute to mediation), each party must continue to perform its obligations under these terms of trade.

15.5 The parties must hold confidential, unless otherwise required by law or at the direction of a court of competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to settle the dispute between the parties. No party may use any information or documents obtained through the dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.

16.1 These terms of trade are governed by the laws of the state or territory where the Supplier’s registered office is situated and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state or territory.

16.2 These terms of trade and any Quotes and written variations agreed to in writing by the Supplier represent the whole agreement between the parties relating to the subject matter of these terms. These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.

16.3 The Supplier may in its discretion and without notice or the Customer’s consent assign, transfer or novate any of its rights or obligations, under these terms of trade to any other entity and the Customer irrevocably authorises the Supplier to execute any document effecting the assignment, transfer or novation under this clause on its behalf, without any consultation with the Customer.

16.4 The Customer must not assign or transfer any of its rights under these terms of trade without the prior written consent of the Supplier.

16.5 Subject other clauses in these terms of trade, these terms of trade are not to be amended except in writing signed by each of the parties.

16.6 In entering into these terms of trade, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by the Supplier or any of its employees or agents relating to or in connection with the subject matter of these terms of trade.

16.7 If any provision of these terms of trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.

16.8 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.

16.9 A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Quote (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Quote; sent by fax to the fax number of the addressee specified in the relevant Quote, with acknowledgment of receipt from the facsimile machine of the addressee; or sent by email to the email address of the addressee specified in the relevant Quote with acknowledgement of delivery.

16.10 A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by fax or email before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.

16.11 A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.