TERMS & CONDITIONS

1.               OUTLINE

  1. Currency: 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.
    1. Amendment:
      1. 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 website https://www.deks.com.au.  
    1. 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.
    1. No amendment, alteration, waiver or cancellation of any of these Terms is binding on the Company unless agreed to by the Company in writing.
    1. No representations/warranties/promises: You 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.
    1. 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.
    1. 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.

2.               QUOTES and ORDERS

3.               PRICE

4.               PAYMENT

5.               PAYMENT DEFAULT

6.               CUSTOM TOOLING

7.               DELIVERY, RISK and INSURANCE

8.               SUSPENSION + CANCELLATION

9.               DEFECTS + RETURN OF GOODS

10.            EXCLUSIONS AND LIMITATIONS

  1. ACL exception: The exclusions and limitations in this clause 10 are subject to clause 11 (Statutory Rights).
    1. Excluded 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
    1. Limitation 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.
    1. Limitations: No warranty is given, and we will not be liable for:
      1. alterations to Goods for which we are not responsible;
      1. defects or depreciation caused by wear and tear, accidents, corrosion, dampness or other abnormal conditions or effects;
      1. damage or failure caused by unusual or non- recommended use, misuse or application of the Goods;
      1. loss or damage to goods occurring during transit or loading/unloading from carrier;
      1. damage caused by incorrect installation; or
      1. loss caused by any factors beyond our control.
    1. Indirect 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).
    1. 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:
      1. the replacement of the Goods or the supply of equivalent goods;
      1. the repair or rectification of the Goods;
      1. the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
      1. the payment of the cost of the repair or rectification of the Goods.
    1. No reliance: You acknowledge and agree that:
      1. you have and will make your own assessment of the fitness for purpose and suitability of any Goods supplied to you;
      1. 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
      1. 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.
    1. 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 by law.
    1. Third party work: If we obtain goods or services from a third party in order to carry out your instructions or complete an Order:
      1. we 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;
      1. we 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;
      1. any claim by you in relation to the supply of such goods or services must be made directly against that third party; and
      1. you 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.
    1. 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.

11.            STATUTORY RIGHTS

  1. 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.
    1. No 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.
    1. Unfair 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.

12.            TITLE

  1. 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?]
    1. 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.
    1. Title: We will retain absolute title over the Goods until:
      1. 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
      1. the Goods are disposed of in the manner prescribed under clause 13.12.
    1. Identification: Until full title in the Goods has passed to you, you will ensure that:
      1. any identifying plate, mark or packaging number on any of the Goods is not removed, defaced or obliterated; and
      1. the Goods are identifiable and distinguishable from any other goods that may be in your possession and as to each particular Invoice of Goods.

13.            SECURITY INTEREST [do you do this]

  1. Security Agreement: This clause 13 sets out the Security Agreement between you (Grantor) and us (Secured Party).
    1. 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.
    1. 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.
    1. 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.
    1. 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.
    1. 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.
    1. 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 PPSR.
    1. Identification: Until this Security Interest in the Collateral has been extinguished, the Grantor will ensure that, as far as is reasonably practicable:
      1. any identifying plate, mark or packaging number on any of the Collateral (including Goods) is not removed, defaced or obliterated; and
      1. 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.
    1. Accessions: The Grantor acknowledges that this Security Interest continues to apply to Collateral that becomes an accession to other goods.
    1. Remedies: Until this Security Interest in the Collateral has been extinguished, if:
      1. a Default Event occurs in respect of the Grantor; or
      1. 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.

  1. Right of entry: In additional to any rights given to the Secured Party under Chapter 4 of the PPSA, the Grantor irrevocably
    1. grants the Secured Party the right to:
  2. demand the immediate return of the Goods to the Secured Party;
  3. enter the Grantor’s premises to search for and seize the Goods without notice or liability to the Grantor; and
  4. retain, sell or otherwise dispose of those Goods in any manner it sees fit;
    1. 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.
    1. Permitted 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:
      1. the Secured Party has not exercised a remedy under clause 13.10;
      1. 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;
      1. the proposed transaction does not create a security interest in the Collateral that ranks above this Security Interest;
      1. all proceeds of the proposed transaction are:
  5. immediately paid to the Secured Party; or
  6. held on trust for the Secured Party in a separate account, payable to the Secured Party on demand; and
    1. 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.
    1. 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:
      1. seizure, retention, redemption or any other remedy exercised pursuant to clause 13.10; and
      1. the enforcement of its rights under this Security Agreement (including matters incidental to it).
    1. Extinguishment: The Security Interest is extinguished only if:
      1. one of the following applies:
  7. all amounts payable in relation to the Collateral have been paid in full;
  8. the Collateral has been dealt with by the Grantor pursuant to clause 13.12; or
  9. a third party has taken free of this Security Interest as provided by the PPSA;
    1. 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
    1. 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.
    1. 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 clause 13.14.
    1. 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.
    1. 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.
    1. Change of name: The Grantor shall immediately notify the Secured Party in writing of any change of name of the Grantor.
    1. Acknowledgement: The Grantor acknowledges due notice of this Security Agreement with acceptance of these Terms.

14.            INTELLECTUAL PROPERTY

14.1          Your intellectual property: If you provide us with Material to be used in the supply of the Goods:

14.1.1      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

14.1.2      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.

14.2          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.

14.3          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.

14.4          Confidentiality: You shall keep confidential and shall not use any confidential information communicated by us to you without our prior written consent.

15.            GST

15.1          Prices exclusive of GST: Unless otherwise agreed, prices with respect to any taxable supply are exclusive of GST.

15.2          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.

15.3          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.

15.4          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 invoice.

16.            GENERAL

16.1          Indemnity:   To the fullest extent permitted by law, you indemnify us and agrees to keep us indemnified, against:

16.1.1      all losses we incur;

16.1.2      all liabilities we incur; and

16.1.3      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

16.1.4      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.

16.2          Termination: If a Default Event occurs:

16.2.1      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;

16.2.2      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

  1. 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.

16.3          Lawful purpose: You shall ensure that the Goods are used only for lawful purposes and in accordance with any applicable laws.

16.4          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.

16.5          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 consent.

16.6          Time of the essence: Time shall be of the essence in relation to any date or period under these Terms.

16.7          Force Majeure: If a Force Majeure Event occurs, we may

16.7.1 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

16.7.2 elect to extend at our discretion the period for performance of an obligation under these Terms as is reasonable in all the circumstances.

16.8          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.

16.9          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.

16.10       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?

16.11       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.

  1. Trustee Capacity: If you, the Customer are acting as the trustee of any trust (whether disclosed or not), then you:
    1. 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;
    1. you, the Customer, have the right to be indemnified out of trust assets;
    1. you, the Customer, have the power under the trust agreement to sign these Terms;
    1. you, the Customer, will not retire as trustee of the trust or appoint any new or additional trustee without advising us in writing; and
    1. you must give us a copy of the trust agreement upon the Supplier’s request.

16.13       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.

16.14       Privacy: You, the Customer, agree to the terms of the Privacy Policy and the Privacy Statement made pursuant to the Privacy Act 1988 (as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 contained in these Terms.

 

17.            INTERPRETATION + DEFINITIONS

17.1          Personal pronouns: Except where the context otherwise provides or requires:

17.1.1      the terms we, us or our refers to the Company; and

17.1.2      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:

ACL means 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 interest.

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:

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 time.

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 writing.

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.

PPSR means the Personal Property Securities Register. Quote means a quotation by us for the supply of particular Goods containing details as specified in

clause 2.2.

Secured Party means a person who holds the benefit of a security interest.

Security Agreement means the security agreement set out in clause 13 (Security Interest).

Security Interest means the security interest created in clause 13 (Security Interest).

SGA means the Sale of Goods Act 1923 (NSW) as amended.

Tools has the meaning given to it in clause 6.1.

Winding 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 appointed.

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DEKS Industries is the world’s leading innovative manufacturer of plumbing, roofing, HVAC, washers and civil products. Established 1947.