TERMS & CONDITIONS
These Terms and Conditions (Terms)
shall apply without exception or attention to the supply of all Goods by us to
you which are provided under an offer accepted by the Company.
- The Company may amend these Terms at any time and from time to
time without prior notice to you, by publishing the Terms on the Company’s
- You will be taken
to have accepted any revised Terms continuing to offer to purchase product from
the Company after the date upon which they are published by us on our website.
- No amendment,
alteration, waiver or cancellation of any of these Terms is binding on the
Company unless agreed to by the Company in writing.
acknowledge that no employee or agent of the Company has any right to make any
representation, warranty or promise in relation to the Goods sold other than as
contained in these Terms.
- Entire Agreement: The terms of contract
between the Company and the Customer are wholly contained in these Terms and
any other writing signed by both parties.
- Priority: These Terms override the
Customer’s terms and conditions. To the extent of any discrepancy between these
Terms and any third party (including the Customers) terms and conditions, these
Terms prevail. We will not be
bound by, any conditions (express or implied) added or provided by you, whether
in an Order or otherwise.
a Quote: You may request a Quote from us relating to the
potential supply of Goods.
a Quote: We may provide to you a Quote relating to the potential
supply of Goods, which may include the price and quantity of the Goods proposed
to be supplied by us and other relevant details as necessary.
of Quote: A Quote is valid for 30 days only. We reserve the right
to withdraw a Quote at any time before you place an Order.
an Order/Contract Acceptance: If our Quote is acceptable to you,
you may place an Order for each supply of Goods. An Order is not binding until
we have provided you with written acceptance or confirmation of the Order,
which we may withhold in our absolute discretion. The contract is deemed to
have been made on acceptance by us of your Order, on these Terms, at the
Company’s place of business in Sydney and must be construed and performed in
accordance with the laws of New South Wales. [query]
- Tests: All
Goods manufactured by us are inspected during manufacture and, where
applicable, submitted to standard tests prior to dispatch. If you specify in
your Order that certain tests be conducted in your presence, such tests (unless
otherwise agreed) shall:
- be conducted at our works upon the
provision to you of 7 days’ notice of the material or equipment being made available for testing;
- be the subject of a special charge specified by us; and
- if you fail to attend such tests, be conducted on the date as notified to you
and be deemed to have been conducted in your presence.
- In the absence of manifest error, our written
records in relation to a delivery of Goods will be conclusive evidence of the
type and quantity of Goods delivered and of the date and time of delivery.
- In the absence of manifest error, certification from
our authorised representative will be conclusive evidence of the amount owed
for the Goods.
- Price: Unless otherwise agreed to in writing by us or by our authorised representative, subject to clause 3.2, the price charged and payable for the Goods:
- shall be the price in Australian dollars at the date we provide the Quote;
- Variation of price: Prices contained in any Quote for the supply of Goods are based on the costs prevailing and the specification supplied at the time of the Quote. Subject to your rights under law including the ACL [query], we reserve the right to vary the price if between the time of the Quote and the time of your Order:
- there is any movement in the input cost of supplying the Goods specified in your Order, including without limitation any change in Charges, transportation, freight, import and insurance costs;
- the Goods specified in your Order are varied from the Goods specified in our Quote; or otherwise provided in these Terms, and we provide you reasonable notice of any such variation of price.
tolerances: Subject to clause 11 (Statutory
Rights), where we have agreed to produce Goods which are other
than our standard range of Goods, due to the difficulty in producing exact
quantities, we reserve the right to:
- vary the final quantity of Goods
delivered to you by a margin of up to 10% in excess of the quantity specified in your Order; and
- charge you the price for any excess quantity
of Goods on a pro-rata basis.
on delivery: Unless otherwise agreed in writing, we will issue you
an Invoice upon delivery of the Goods specified in your Order.
terms: All Payments shall be made in full by the date of Delivery
of the Goods to you. If you have a credit account with us, Payment shall be
made in full by the 30th day of the month following the date of the Invoice.
method: All Payments are to be made to us by EFT to the bank
account nominated by us or by direct credit or credit card.
in instalments: We may at our discretion as agreed in writing accept
Payments in instalments upon such terms as we see fit.
purchases: Unless you have a credit account with us or as
otherwise agreed by us in writing:
- if we deliver Goods to you outside Australia, payment must be made in full
upon presentation of negotiable shipping documents or our invoice; or
- if we deliver Goods to your local depot,
payment must be made in full upon our notification that the Goods are ready for dispatch.
Interest: In addition to our rights under these Terms, we may at
our discretion in the event of your failure to make a Payment in accordance
with clause 4 (Payment) charge
Default Interest on all amounts you owe us at the rate of 1.8% per calendar
of Default Interest: Default Interest pursuant to clause 5.1 shall
- calculated daily from the date Payment
was due to the actual date that the Payment is made in full.
- Costs of
enforcement: We may recover from you all costs or
expenses we incur or are likely to incur in the collection of Payment of any
Invoice, including without limitation, the costs of any collection agent we
engage, and legal costs (on a solicitor-client basis);
off: You may not set off against any Payment, at law or in equity,
any claims which you may have against us. If an amount is payable by you or
your related entity to us, we are entitled to set-off that amount against any
amount payable by us to you or your related entity.
Interest amount credited first: Any Payment you make to us
shall first be applied as reimbursement in accordance with this clause for any
collection costs and expenses we incur, then credited against any Default
Interest accrued pursuant to this clause 5 to
the actual date of Payment, then in satisfaction or part satisfaction of the
oldest portion of your account.
of credit: We reserve the right to revoke at any time any credit
extended to you, for any reason whatsoever, including but not limited to your
failure to make any Payment when due.
- Time is of the essence in respect of
your obligation to make payment for Goods sold by us to you.
of Tools: If we agree to produce Goods which are other than
standard items of our production or are of your own design or configuration
which require us to create new dies, tools, moulds, cutters or jigs (Tools), you will be responsible for a
portion of the total cost of such Tools and the amount of this portion shall be
specified by us in our Quote.
of Tools: Unless we otherwise agree in writing, all Tools we manufacture,
or supply shall remain in our possession upon the completion or determination
of your Order. We may in our absolute discretion produce for you further
articles from such Tools at prices to be quoted by us from time to time and
subject to these Terms.
of Tools: We will maintain at our own expense all Tools we
manufacture on your behalf in reasonable order and condition during their
economic production life. Where the condition of such Tools ultimately renders
it beyond economic or practical repair or where additional Tools are required
to cater for increased demand, then the cost of creating new Tools will be
charged to you. We will advise you of the cost. [query]
supplied by you: If Tools are supplied by you, reasonable care will be
taken to ensure that they remain in the condition as supplied but we accept no
responsibility for any loss or damage to such Tools or for insuring such Tools.
Any cost to modify or adapt such Tools to suit our plant or production process
and to maintain and repair such Tools required under normal usage will be
charged to you.
Tools: All Tools will be considered obsolete if no further
Orders have been placed with us for production within one year of the date of
the last supply to you. We accept no responsibility for the continued existence
or usability of the Tools after that year period.
RISK and INSURANCE
Delivery of the Goods (Delivery)
shall take place:
- if the Goods are delivered within
Australia, at the time that the Goods are delivered by us to you or any agent,
carrier or person who takes delivery of the Goods for the transmission of them
to you as agreed by the parties; or
- if the Goods are delivered outside
Australia, at the time that the Goods pass the ship’s rail at the port of
shipment as agreed by the parties.
instructions: If not already provided in your Order, you shall
provide to us any forwarding instructions at least 7 days before the date set
for Delivery of the Goods. Extras will be invoiced separately. Any special
delivery instructions must be received by the us in a timely manner to enable
us to comply with such instructions. Any failure by us to comply by reason of
non-receipt of special delivery instructions will not entitle you to terminate
an order or these Terms.
passes on delivery: The risk of any loss, damage to or
deterioration of the Goods shall pass to you from the time of Delivery of the
- if the Goods are delivered within
Australia, Goods are delivered CPT. We may charge you the cost of unloading the
Goods at your designated delivery location; or
- if the Goods are delivered outside
Australia, Goods are delivered CIF. We may charge you the cost of any Charges
of any kind.
after Delivery: Any further transportation costs incurred after the
Delivery of the Goods will be paid by you.
- Instalments: We
reserve the right to allocate our supplies and stocks at our absolute
discretion. We reserve the right to make deliveries in instalments as well as
to deliver prior to the date for delivery and in such event, you must not refuse to accept delivery of the
Goods and these Terms shall be severable as to such instalments, in which case
Payment for each instalment is a condition precedent to the delivery of
subsequent instalments. Any failure on
our part to deliver instalments within any specified time does not entitle you
to terminate the Order or these Terms with regard to the balance remaining
and Insurance over Goods: You must ensure that the Goods are
properly stored and protected and you shall from Delivery until we have
received Payment for all Goods in full, have sufficient insurance in respect of
the Goods to protect us against any and all loss or damage by fire, theft or
any other cause whatsoever and provide to us upon our request evidence of such
liability for delay: We will use reasonable efforts to
deliver the Goods to you by the date and to the place specified by you. Without
limiting clause 10 (Exclusions and
Limitations), if the Delivery of the Goods is
- we shall not be liable for late
delivery or delay in delivery;
- the delay does not give you the right
to cancel an Order or terminate these Terms or relieve you of any obligation to
accept or pay for Goods; and
- we will not be liable for any loss or
damage howsoever arising as a result or consequence of any delay in delivery or
any failure to deliver.
provided by you: If we process or use goods or materials supplied by
you, the responsibility for delivery and insurance of those goods or materials
to us shall be borne by you.
of Order: If as a consequence of an instruction from you, we delay
or suspend (but not cancel) an Order or any part of an Order for a period of 60
days or more, we may:
- request the payment in full for all
work in progress relating to the relevant Order at the time of suspension;
- vary the price for the uncompleted
portion of the relevant Order.
by you: You may not cancel an Order, or any part of it, unless:
- we give our written consent; and
- you pay to us any and all costs
incurred by us in relation to the cancelled Order or the cancelled part of the
Order to the date of cancellation, which may include by way of deduction from
any advance payment you have made to us.
by us: We may in writing cancel an Order or delivery of an
Order without liability to you (save as required by relevant laws) if:
- we reasonably form the opinion that
you are insolvent or at material risk of insolvency;
- you fail to pay any amount for the
Goods on the due date;
- we reasonably form the opinion that supplying
Goods to you may have a negative impact upon our business or commercial
reputation or image; or
- your payments to us are outside our trading terms.
of cancellation: Subject to your rights at law, if we cancel an order
pursuant to clause 8.3, we
may at our option:
- sell or otherwise dispose of the Goods for our own benefit; and/or
- claim damages from you and retain on
account of such damages any payments that
we may have received from you.
RETURN OF GOODS
- This clause 9 is
subject to clause 10 (Exclusions
and Limitations), clause 11 (Statutory Rights) and
any other statutory or legal right whether under these Terms or otherwise. It is your responsibility to ensure that the
Goods conform to your requirements and are fit for your purposes. You must
notify us in writing (including sufficient particulars) within 48 hours of
delivery if you claim that the Goods were defective, short delivered or
otherwise not the Goods specified in the Order. If you fail to notify us as set
out in this clause, then to the fullest extent permitted by law, the Goods must
be treated as having been accepted by you, and you must pay for the Goods and,
to the fullest extent permitted by law, we will be discharged from any
liability in respect of the Goods being wrong or defective or short delivered.
You should inspect the Goods immediately upon delivery and may only return the
- they do not materially comply with the
- Notification: If
you wish to return any Goods delivered to you, you must give to us:
- notice within 48 hours of your receipt
of the Goods; and
- the original Invoice details.
or credit: If we accept the return of Goods from you, we will at
our option either:
- replace the returned Goods; or
- give a credit or a refund for such Goods.
to return Goods: You shall bear any expense of transportation of Goods
returned to us, unless you have a statutory or other legal right that permits
for other Goods: You may not withhold any payment due to us in respect
of any other Goods pending the resolution of a claim for a defect.
of account: We will not accept notifications under clause 9.4 in the
event of your non-payment of an account.
damaged in transit: If the Goods are damaged in the
course of being delivered to you:
- you must notify us of any claim for
Goods damaged in transit within a reasonable 48 hours’ time of delivery; and
- subject to our acceptance of your
claim under this clause 9, we
will replace the relevant Goods. [query]
- Recalls: In
the event of a product recall over Goods you have acquired from us, you shall
give us such assistance as is reasonably required in relation to that recall.
exception: The exclusions and limitations in this clause 10 are
subject to clause 11 (Statutory
rights: All express or implied representations, conditions,
statutory guarantees, warranties and provisions (whether based on statute,
common law or otherwise), relating to these Terms, that are not contained in
it, are excluded to the fullest extent permitted by law
of liability: Any liability arising in relation to Goods the subject
of your Order or that we supply to you, however arising and whether for
consequential loss or otherwise, including any liability arising by virtue of
any representation or warranty, whether express or implied by law, is hereby
excluded to the fullest extent permitted by law.
- Limitations: No
warranty is given, and we will not be liable for:
to Goods for which we are not responsible;
or depreciation caused by wear and tear, accidents, corrosion, dampness or other
abnormal conditions or effects;
or failure caused by unusual or non- recommended use, misuse or application of
or damage to goods occurring during transit or loading/unloading from carrier;
caused by incorrect installation; or
caused by any factors beyond our control.
Loss: We are not liable for any special, indirect, consequential or economic loss or
damage or loss of profits (in contract or tort or arising from any other cause
of action) suffered by you or any other person resulting from any act or
omission by us (including breach, termination or non- observance of the terms
of an Order or agreement which incorporates these Terms).
- Total liability: Our total liability for breach of these Terms or
breach of our contractual obligations or duties at law or in equity (however
arising) is limited at our option to:
replacement of the Goods or the supply of equivalent goods;
repair or rectification of the Goods;
payment of the cost of replacing the Goods or of acquiring equivalent goods; or
payment of the cost of the repair or rectification of the Goods.
- No reliance: You acknowledge and agree that:
have and will make your own assessment of the fitness for purpose and
suitability of any Goods supplied to you;
do not and will not rely on our skill or judgment nor that of any person by
whom any prior negotiations or arrangements in relation to the acquisition of
any Goods were conducted or have been or will be made; and
- you have
not made nor will make known to us or a manufacturer of goods (directly or via any person and whether expressly or
impliedly) the particular purpose for which you acquire Goods.
- Performance figures: You acknowledge and agree that all figures
and data supplied by us relating to the performance of the Goods are reasonable
estimates of performance within specific tolerances which can be expected of
the Goods under normal circumstances and usage Except where performance figures
are specifically guaranteed in writing by us, all conditions, warranties and
representations as to the performance of the Goods are excluded and we shall
not be liable for any liability however arising to the fullest extent permitted
- Third party work: If we obtain goods or services from a third party in
order to carry out your instructions or complete an Order:
will not be liable for any breach of these Terms if that breach is as a result
of or is connected with the supply by a third party of such goods or services;
acquire such goods or services as agent for you not as principal and will have
no liability to you in relation to the supply of these goods or services;
claim by you in relation to the supply of such goods or services must be made
directly against that third party; and
must pay for such goods or services from the third party plus the cost of or
relevant fee for us performing such services as agent for you (whether
separately identified or not). You do not require us to account to you for any
commissions or benefits we may receive from such a third-party supplier in
connection with the supply of such goods or services to you and authorise us to
contract on your behalf as we think fit.
- We give no warranty in respect of any goods
or services that are supplied or carried out or provided to you by a third
party even where forming part of an Order. Any warranties, statutory guarantees
or other rights will be governed by the terms of supply by that provider to you
and relevant laws.
- Statutory rights: In circumstances where you are acquiring Goods from
us as a ‘consumer’ for the purposes of (and as defined in section 3 of Schedule
2 of) the ACL or as a ‘buyer’ for the purposes of the SGA, we acknowledge and
agree that certain statutory guarantees and rights shall apply to you as
provided by relevant laws but subject to these Terms as applicable and where
permitted by relevant laws.
restriction: Nothing in these Terms excludes, restricts or modifies any
condition, warranty, statutory guarantee, , statute or regulation which cannot
be lawfully excluded, restricted or modified, which may include the ACL, the
SGA and any relevant State or Territory legislation containing implied terms
and/or statutory guarantees which operate to protect the purchasers of goods and services in various circumstances.
contract: If section 23 of the ACL applies to any provisions in
these Terms, any such provision(s) shall be void to the extent it is unfair
within the meaning of section 24 of the ACL.
- Subject to the PPSA: The provisions of this clause 12 are subject to the provisions of the PPSA and clause 13 (Security Interest).[query] how do we deal with this?]
- Possession as bailee: After delivery of the Goods, until the
full Payment has been made you shall possess the Goods as our fiduciary agent
and bailee of the Goods only.
- Title: We will retain absolute title over the Goods until:
- we have received Payment in full in respect
of the Goods and for all sums owing on all of your other accounts with us or
under any contract made with us; or
- the Goods are disposed of in the manner
prescribed under clause 13.12.
- Identification: Until full title in the Goods has passed to you, you
will ensure that:
- any identifying plate, mark or packaging
number on any of the Goods is not removed, defaced or obliterated; and
- the Goods are identifiable and
distinguishable from any other goods that may be in your possession and as to
each particular Invoice of Goods.
INTEREST [do you do this]
- Security Agreement: This clause 13 sets out the Security Agreement between you (Grantor) and us (Secured
- Creation of Security Interest: The Grantor grants to the Secured Party a
Security Interest in the Goods supplied by us to you, including all related
proceeds (Collateral), as security
for all or part of the Payment of any amount relating to the Goods in
accordance with these Terms or otherwise. For the avoidance of doubt, this
Security Interest is also a Purchase Money Security Interest (PMSI) in the Collateral.
- Ranking: Subject to the priority rules set out in the PPSA,
this Security Interest ranks in priority ahead of all other security interests
in the Collateral.
- Continuing obligation: This Security Interest is a continuing
security and the Grantor’s obligations under this Security Agreement continue
until it has been terminated in accordance with this Security Agreement.
- Attachment: The Security Interest attaches to the Collateral by
virtue of the Grantor’s possession of the Goods as fiduciary agent and bailee
under clause 12.2.
- Perfection: The Grantor irrevocably gives authority to the
Secured Party to register a financing statement with respect to the Security
Interest on the PPSR. Despite this provision, the Secured Party may perfect
this Security Interest by any other means in accordance with the PPSA.
- Information: The Grantor shall provide the Secured Party with any
information required for the Secured Party to register a financing statement or
a financing change statement with respect to this Security Interest on the
- Identification: Until this Security Interest in the Collateral has been
extinguished, the Grantor will ensure that, as far as is reasonably
- any identifying plate, mark or packaging
number on any of the Collateral (including Goods) is not removed, defaced or
- the Collateral is identifiable and distinguishable
from any other goods or products that may be in the Grantor’s possession and as
to each particular Invoice of Goods comprising the Collateral.
- Accessions: The Grantor acknowledges that this Security Interest
continues to apply to Collateral that becomes an accession to other goods.
- Remedies: Until this Security Interest in the
Collateral has been extinguished, if:
- a Default Event occurs in respect of the
- the Grantor is in breach of these Terms,
the Secured Party may as it sees fit and
without notice to the Grantor, seize, retain or redeem the Collateral, or seek
any and all remedies provided under Chapter 4 of the PPSA or any other remedies
provided at law or in equity, including those set out in clause 13.11.
of entry: In additional to
any rights given to the Secured Party under Chapter 4 of the PPSA, the Grantor
- grants the Secured Party the right to:
the immediate return of the Goods to the Secured Party;
the Grantor’s premises to search for and seize the Goods without notice or
liability to the Grantor; and
sell or otherwise dispose of those Goods in any manner it sees fit;
- indemnifies, and keeps indemnified, the
Secured Party against any claim (including in negligence) in respect of any
damage to the property of, or the premises occupied by, the Grantor or any
consequential loss caused by another party arising relating to searching for
and seizing any Goods in accordance with this clause 13.11.
use and sale: The Grantor
may only sell or deal with any of the Collateral (including accessions) in
respect of which full Payment has not been received if:
- the Secured Party has not exercised a remedy
under clause 13.10;
- the proposed transaction is a bona fide
transaction to a third party at market value conducted in the ordinary course
of business of the Grantor;
- the proposed transaction does not create a
security interest in the Collateral that ranks above this Security Interest;
- all proceeds of the proposed transaction
paid to the Secured Party; or
- held on
trust for the Secured Party in a separate account, payable to the Secured Party
on demand; and
- unless otherwise obligated by law, the
Grantor does not disclose to a third party that the proposed transaction is
subject to this Security Agreement or that the proceeds will be immediately
paid to the Secured Party or held on trust for the Secured Party.
- Costs: The Grantor shall pay all costs
incurred by the Secured Party (including costs on a solicitor-client basis and
debt collector’s costs) arising out of this Security Agreement, including costs
in relation to:
retention, redemption or any other remedy exercised pursuant to clause 13.10; and
enforcement of its rights under this Security Agreement (including matters
incidental to it).
The Security Interest is extinguished only if:
- one of the following applies:
amounts payable in relation to the Collateral have been paid in full;
Collateral has been dealt with by the Grantor pursuant to clause 13.12; or
- a third
party has taken free of this Security Interest as provided by the PPSA;
- the parties agree that no further
Goods shall be supplied by the Secured Party to the Grantor pursuant to these
Terms which shall become the subject of this Security Interest; and
- all obligations under this Security
Agreement have been satisfied by the Grantor, including the obligation to pay
costs as set out in clause 13.13.
- Removal: The Secured Party acknowledges its obligation
to lodge a financing change statement to remove this Security Interest from the
PPSR upon the extinguishment of this Security Interest in accordance with
- Waiver: Sections 95,
118, 121(4), 125, 130, 132 and 135 of the PPSA shall not apply to the extent
that they impose obligations on the Secured Party.
- Waiver of receipt of statements:
The Grantor irrevocably waives its right to receive from the Secured Party a
copy of any financing statement, financing change statement or verification
statement that is registered, issued or received at any time in relation to
this Security Agreement.
- Change of name:
The Grantor shall immediately notify the Secured Party in writing of any change
of name of the Grantor.
- Acknowledgement: The
Grantor acknowledges due notice of this Security Agreement with acceptance of
Your intellectual property: If you provide us with Material
to be used in the supply of the Goods:
you warrant and represent to us that any Goods supplied to you based on
the Material you provide to us will not infringe the Intellectual Property
Rights of any third party; and
you indemnify and will keep us indemnified from and against any and all
claims, liabilities, obligations, expenses or damages which we may suffer or
incur as a result or in connection with the representation or warranty in
clause 14.1.1 being untrue or breached.
License over Materials: You grant to us a non-exclusive
royalty-free license throughout the universe to use all Intellectual Property
Rights in all Materials for so long as necessary or convenient for the
production of the Goods and the matters contemplated in relation to the
delivery of the relevant Goods.
Our intellectual property: All of our Intellectual
Property Rights in and relating to the production, development and supply of
the Goods including but not limited to drawing, illustrations, specifications,
and other literature (excluding Materials licensed to us pursuant to clause 14.2) remains our property and shall not be transferred,
assigned, licensed, reproduced, disclosed or otherwise given to any other
person by you without our prior written consent. You may only use our
Intellectual Property Rights in the Goods for the purposes specified at the
time the Goods are supplied to you.
Confidentiality: You shall keep confidential and shall not use any
confidential information communicated by us to you without our prior written
Prices exclusive of GST: Unless otherwise agreed, prices
with respect to any taxable supply are exclusive of GST.
GST payable in addition: You must pay to us all GST in
addition to any other amounts payable by you to us in respect of a taxable
supply, which will be payable by you when required to pay for the Goods.
Issue of tax invoice: We will issue a tax invoice for
any taxable supply to you, which will enable you, if permitted by the GST Law,
to claim a credit for GST paid by you.
Third party supplies: If GST is payable for a taxable
supply by a third party, we will request that party to provide you with a tax
Indemnity: To the
fullest extent permitted by law, you indemnify us and agrees to keep us
all losses we incur;
all liabilities we incur; and
all costs actually payable by us to our own legal representatives
(whether or not under a costs agreement) and other expenses we incur in
connection with a demand, action, arbitration or other proceeding (including
mediation, compromise, out of court settlement or appeal), arising directly or
indirectly as a result of or in connection with the supply of Goods by us to
you, except to the extent that we incur such losses, liabilities and/or costs
as a result of us breaching a condition or warranty which cannot lawfully be
excluded; or unless we incur such losses, liabilities and/or or costs due to
willful misconduct on the part of us or any of our employees or agents acting
within the scope of their employment/agency; and
You must pay to us all liabilities, costs and other expenses referred to
in this clause, whether or not we have paid or satisfied them.
Termination: If a Default Event occurs:
we may, without limiting any other right we have under these Terms,
terminate or suspend delivery of any outstanding Order and terminate any
contract for the supply of Goods to you;
all Payments and any other money under these Terms become immediately
payable, whether or not the payment of which would otherwise not have been then
due and payable; and
- will not be obliged to notify you before exercising
our rights as outlined above and these rights will be in addition to any other
rights that we may have at law or in equity.
Lawful purpose: You shall ensure that the Goods are used only for lawful
purposes and in accordance with any applicable laws.
Binding: These Terms shall bind our successors,
administrators and permitted assigns and your executors and permitted assigns,
or, being a company, its successors, administrators and permitted assigns.
Assignment: We may without notice to you assign, transfer
and/or sub-contract our rights and/or obligations (in whole or in part) under
these Terms. You may not assign, transfer, hold on trust or otherwise delegate
any of your rights or obligations under these Terms without our prior written
Time of the essence: Time shall be of the essence in
relation to any date or period under these Terms.
Force Majeure: If a Force Majeure Event occurs, we may
totally or partially suspend any Order, any part of an Order or any deliveries
relating to an Order during any period in which we may be prevented or hindered
from delivering by our normal means of supply or delivery due to that Force
Majeure Event; and
elect to extend at our discretion the period for performance of an obligation
under these Terms as is reasonable
in all the circumstances.
Severability: Each clause in these Terms is severable and if any
clause is held to be illegal or unenforceable, then the remaining clauses will
remain in full force and effect.
Waiver: No failure, delay, relation or indulgence on our
part in exercising any power, right or remedy precludes any other or further
exercise of that or any other power, right or remedy.
Governing law: These Terms shall be governed by the laws of the
State of New South Wales and the parties irrevocably submit to the non-
exclusive jurisdiction of the Courts of the State of New South Wales. Where?
Corporation: If you, the Customer, is a corporation, you warrant
that the Company’s director(s) and/or company secretary will sign these Terms
pursuant to the requirements in section 1.5.7 of the Corporations Act 2001
(Cth) for signing documents on behalf of the Company. You warrant that all of the Company’s
directors will provide personal guarantees and indemnities to us in relation to
the Company’s obligations under these Terms.
- Trustee Capacity: If you, the Customer are acting as the trustee of
any trust (whether disclosed or not), then you:
- declare that
you are entering into these Terms both in your own capacity and as trustee of
the trust with the ability to bind, and the intention of binding, both;
- you, the
Customer, have the right to be indemniﬁed out of trust assets;
- you, the
Customer, have the power under the trust agreement to sign these Terms;
- you, the
Customer, will not retire as trustee of the trust or appoint any new or
additional trustee without advising us in writing; and
- you must give
us a copy of the trust agreement upon the Supplier’s request.
Partnership: If you, the Customer, are a partnership, you warrant
that all of your partners agree to and have signed these Terms and that all of
your partners will provide personal guarantees and indemnities to us in
relation to your obligations under these Terms.
Privacy: You, the Customer, agree to the terms of the
(as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012
contained in these Terms.
Personal pronouns: Except where the context otherwise provides or
the terms we, us or our refers to the Company; and
the terms you or your refers to the Customer.
17.2 Defined terms: In these Terms, unless otherwise provided, the following terms shall have their meaning as specified:
the Australian Consumer Law under the Consumer
and Competition Act 2010 (Cth) as amended.
Charges means any sales tax, excise duties, customs
duty, transfer duty, GST or any other taxes, duties or charges applicable in
respect of the provision of the Goods.
CIF has the meaning given to it in Incoterms 2010
issued by the International Chamber of Commerce.
Collateral means property that is subject of a security
Company means Gulf Rubber Australia Pty Limited (ABN
13 118 010 263) CPT has the meaning
given to it in Incoterms 2010 issued by the International Chamber of Commerce.
CPT (or CFR) has the
meaning given to it in Incoterms 2010 issued
by the International Chamber of Commerce.
Customer means any person or entity that places an
Order with us and agrees by conduct or by virtue of notice or otherwise to be
bound by these Terms, including any related company, related party, officer and
authorised person of the relevant person.
Default Event means any one of the following events:
- you fail to make any payment when due,
whether for the Goods or otherwise;
- Winding Up commences against you;
- a receiver is appointed to you;
- you become insolvent, bankrupt or
commit an act of bankruptcy;
- proceedings are commenced or an
application is made for the appointment of any persons listed in items (b) to
(e) above; or
- a mortgagee or their agent enters into
possession of your assets.
Default Interest means as defined in clause 5. Delivery means the
delivery of the Goods in accordance with clause 7.1.
Force Majeure Event means circumstances beyond our reasonable
control, which shall include, but not be limited to compliance with any laws,
regulations, orders, acts, instructions or priority request of any government,
or any department or agency, civil or military authority, acts of God, acts of
the public enemy, your acts or omissions, fires, floods, strikes, lockouts,
embargoes, wars, labour or material shortages, riots, insurrections, defaults
of our suppliers or subcontractors, delays in transportation, loss or damage to
Goods in transit or instructions or lack of instructions from you.
Goods means goods sold by the Company from time to
Grantor means the person who has the interest in
property to which a security interest is attached.
GST, GST Law and Taxable Supply have the meaning set out
in the A New Tax System (Goods and
Services Tax) Act 1999 (Cth).
Intellectual Property Rights means all forms of intellectual property
rights (whether registered or unregistered) in copyright, designs, patents, trademarks,
domain names, trade secrets, know-how, confidential information and all other
similar proprietary rights and all extensions and renewals thereof anywhere in
the world which currently exist and/or are recognised in the future.
Invoice unless otherwise agreed means the invoice
issued upon the delivery of the Goods specified in your Order.
Material means any material in which you have
Intellectual Property Rights provided by you for use by us in the production,
development and supply of the Goods to you.
Order means an order for Goods received by us in
Payment means payment of any amount relating to Goods
in accordance with these Terms.
PMSI means a purchase money security interest as
defined by section 14 of the PPSA.
PPSA means the Personal Property Securities Act 2009 (Cth) as amended, including
any regulations made pursuant to it.
means the Personal Property
Securities Register. Quote means a
quotation by us for the supply of particular Goods containing details as
Party means a person who
holds the benefit of a security interest.
Security Agreement means the security agreement set
out in clause 13 (Security
Security Interest means the security interest
created in clause 13 (Security
SGA means the Sale of Goods Act 1923 (NSW) as amended.
Tools has the meaning given to it in clause 6.1.
Up means commencing to be
wound up, or suffering a provisional liquidator, liquidator, official manager
or any other administrator of the affairs of insolvent companies to be
Terms & Conditions | Privacy NoticeDEKS Industries is the world’s leading innovative manufacturer of plumbing, roofing, HVAC, washers and civil products. Established 1947.