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(a) Buyer means the person named in the relevant Order or Quotation who buys or has agreed to buy any Goods.
(b) CCA means the Competition and Consumer Act 2010 (Cth).
(c) Claim means a demand, claim, action or proceeding made or brought by or against a person, however arising and whether
present, unascertained, immediate, future or contingent.
(d) Contract means a contract between the Seller and the Buyer formed under clause 2(c).
(e) Exclusive Goods means any Goods which are, at the Buyer’s request, embellished, machined, cut-to-size or specifically ordered for the Buyer or the Buyer’s nominee.
(f) Goods means any item of whatsoever nature which is sold by the Seller and unless the context otherwise requires, includes
services of whatsoever nature which are provided by the Seller.
(g) GST and GST Law have the meanings ascribed to those terms under the A New Tax System (Goods and Services Tax) Act
1999 (Cth).
(h) PPSA means the Personal Property Securities Act 2009 (Cth).
(i) Purchase Price means the price of the Goods as stated on the relevant Quotation, Tax Invoice or otherwise given (in writing
or verbally) to the Buyer in connection with the sale of Goods.
(j) Seller means Cold Forged Products No.1 Pty Limited ABN 26 000 655 587.
(k) Tax Invoice has the meaning given to that term by the GST Law.
(l) Terms and Conditions is a reference to these terms and conditions (as amended by the Seller from time to time).
(m) Quotation means the form of quotation submitted by the Seller to the Buyer in which these Terms and Conditions are
deemed to be incorporated.
(a) Any special conditions specified on a Quotation or Tax Invoice shall, to the extent they are inconsistent with these Terms and
Conditions, take precedence over these Terms and Conditions.
(b) Headings are for convenience only and do not affect interpretation. The following rules of interpretation apply unless the
context requires otherwise:
(i) the singular includes the plural and vice versa;
(ii) a reference to any legislation or to any provision of any legislation includes any modification or re-enactment of it, any legislative provision substituted for it and any regulations and statutory instruments issued under it;
(iii) a gender includes every other gender;
(iv) a reference to a person includes a firm, a corporation or body corporate, an unincorporated association or an authority and vice versa;
(v) mentioning anything after includes or including does not limit what else might be included; and
(vi) a reference to dollars or $ is to Australian currency.
(a) An order to procure goods or services from the Seller may be made by the Buyer either verbally or in writing (including through facsimile or email) to the Seller (Order).
(b) Any Quotation given by the Supplier is a mere invitation to treat and does not constitute a contractual offer.
(c) A Contract will be formed upon acceptance of an Order by the Supplier in the following manner:
(i) providing notice in writing that it has accepted that Order;
(ii) commencing or commissioning the manufacture of the Goods;
(iii) purchasing Goods for on-supply to the Buyer;
(iv) delivering the Goods; or
(v) issuing a Tax Invoice for the Goods.
(d) The Supplier reserves the right to accept (or reject) Orders in whole or in part. Any Order or part of an Order not accepted by the Supplier in the manner prescribed will be regarded as having been refused by the Supplier.
(e) Once the Supplier has accepted an Order, the Buyer may not alter or modify the Order without the prior the written consent of the Supplier.
(f) Upon formation of a Contract under clause 2(c), these Terms and Conditions shall, subject to clause 1.2(a), constitute the entire agreement between the Seller and the Buyer for the supply of the Goods. Any terms and conditions contained in any purchase order placed by the Buyer are expressly excluded.
(g) A demand for variation to these Terms and Conditions shall not have any effect unless agreed in writing and signed or directly emailed by an authorised representative of the Seller.
(h) Unless otherwise agreed by the parties in writing:
(i) the Buyer agrees to pay damages to the Seller equivalent to its costs incurred and loss of profit plus GST should the Buyer cancel any Order or breach the terms and conditions of any Contract; and
(ii) despite the cancellation of any Order for any reason, the Buyer must still purchase from the Seller any Goods ordered by the Buyer which constitute Exclusive Goods which were procured or ordered by the Seller before
such cancellation.
(a) Unless otherwise agreed by the parties in writing, the Purchase Price shall be paid by the Buyer within 30 days from the last
day of the month of the date shown on the Seller’s Tax Invoice.
(b) The Buyer shall pay all reasonable expenses to the Seller resulting from any debt recovery action against payment default (including but not limited to transportation, storage, debt collection and legal costs) or otherwise in enforcing these Terms and Conditions.
(c) Time for payment of the Purchase Price shall be of the essence of the contract and if the Buyer fails to pay the Purchase Price when due, the Seller may at its absolute discretion may:
(i) treat the Contract as repudiated by the Buyer; or
(ii) until payment in full is made, suspend delivery of the Goods the subject of the Contract and any Goods the subject of any other contract with the Buyer without incurring any liability whatsoever to the Buyer in respect
thereof.
(d) In the event the Purchase Price is overdue and without prejudice to any rights of the Seller, the Buyer must pay compounding interest on a daily balance basis to the Seller on the overdue outstanding Purchase Price at the rate equal to 5% per annum above the RBA’s published Cash Rate Target from time to time until the Purchase Price is paid in full.
(e) All moneys owing and outstanding to the Seller on any account whatsoever by the Buyer shall become immediately due and
payable at the option of the Seller if the Buyer:
(i) commits an act of bankruptcy or becomes subject to any form of insolvency administration.
(ii) ceases or threatens to cease conducting its business in the normal manner and, whereby changes arise in management control, structure or legal entity of the Buyer; or
(iii) defaults or breaches any condition or understanding under these Terms and Conditions or any other contract between the Seller and the Buyer.
(f) The Seller can at any time without notice to the Buyer alter or terminate the Buyer’s credit limit or terms. The Seller accepts
no liability in the operation of this condition.
(g) Any moneys paid by the Buyer shall be firstly applied to payment of all interest owing, secondly to any other costs which are applicable under these Terms and Conditions and thereafter any residual of the amount paid shall be applied against the Purchase Price of the Goods.
(h) The Seller may set-off any amount owed by the Seller to the Buyer from any amount due by the Buyer to the Seller.
(a) Any prices quoted for the Goods by the Seller shall be exclusive of GST. The Seller will indicate the amount of GST payable in respect of Taxable Supplies to the Buyer on the quotation for the Goods.
(b) The Seller will provide the Buyer with a Tax Invoice and the Buyer must pay the GST amount for Taxable supplies concurrently with the price of the Goods.
(a) The Buyer acknowledges that any time or date named or accepted by the Seller for completion, delivery, dispatch, shipment or arrival of the Goods or for tender of any documents is an estimate only and does not constitute a condition of the Contract.
(b) The Seller shall not be liable for the consequences of any delay in production, completion, delivery, dispatch, shipment or arrival of any Goods or any other delay as a result of any cause outside its reasonable control and this includes but is not limited to natural disaster, war, riots, strikes, lockouts, trade disputes, embargo, fires, breakdowns, mechanical failures,
interruption of transport, failure or breakdown of equipment, government action or by any other cause whatsoever that is outside the reasonable control of the Seller (Force Majeure Event). In any such event, the Seller may:
(i) notify the Buyer that it is unable to fulfil the Contract;
(ii) extend the time for completion, delivery, dispatch, shipment or arrival of the Goods or tender of documents (to the extent of the relevant prevention, restriction or effect arising from the Force Majeure Event); or
(iii) cancel the Contract without liability on its part, save for an obligation to return to the Buyer any money received by the Seller in respect of the Goods at that time.
(c) Unless otherwise stated in writing the Seller may make partial deliveries or deliveries by instalments in any amounts it may determine and each such partial delivery or delivery by instalment shall be deemed to be separate Contracts and these Terms and Conditions shall apply to each partial delivery or delivery by instalment.
(a) The Buyer shall inspect all Goods upon delivery and shall within 7 days of delivery give notice to the Seller of any matter or thing by which the Buyer alleges that the Goods are not in accordance with the Buyer’s Order. Failing such notice and subject to any non-excludable condition implied by law:
(i) the Goods shall be deemed to have been delivered to and accepted by the Buyer;
(ii) the Seller may at its discretion refuse Goods for return for any reason other than the conditions contained herein; and
(iii) the Buyer will be disentitled to any remedy in respect of any such non-conforming Order, as provided in clause 8(a)(iii).
(b) Without limiting the provisions of any other condition within these Terms and Conditions, the Seller’s liability with respect to any Claim shall not exceed the Purchase Price of the Goods. The Seller may at its discretion replace Goods which are the subject of a Claim, at no extra cost to the Buyer, and the replacement Goods shall be subject to these Terms and Conditions.
(a) Terms used in this clause not otherwise defined in these Terms and Conditions have the meaning ascribed to them in the PPSA.
(b) The Buyer acknowledges and agrees that these Terms and Conditions (including any ensuing Contract formed from them) constitute a security agreement which creates a security interest in favour of the Seller in all Goods previously supplied by the Seller to the Buyer (if any) and all after acquired Goods supplied by the Seller to the Buyer (or for the Buyer’s account) to secure all moneys owing to the Seller now and in the future in respect of the supply of Goods.
(c) The Buyer acknowledges that the security interest granted in accordance with clause 7(b) is a security interest for the purposes of the PPSA.
(d) The Buyer undertakes to provide any information that the Seller may reasonably require to enable the Seller to perfect and maintain the perfection of the Seller’s security interest (including by registration of a financing statement).
(e) The Buyer undertakes to immediately notify the Seller in writing of any changes in the Buyer’s name and/or any other change in the Buyer’s details (including, but not limited to, changes in the Buyer’s address, facsimile number, trading name or business practice). The Buyer will not have the right to transfer any Goods provided by the Seller to any potential purchaser or purchaser of the Buyer’s business, unless the Goods are first paid for in full to the Seller.
(f) The Buyer waives (and provides an on-going waiver of) the Buyer’s right to receive a verification statement in respect of any financing statement and agree to the extent permitted by law that:
(i) where the Seller has rights in addition to, or existing separately from those in Chapter 4 of the PPSA, those rights will continue to apply and in particular, will not be limited by Part 4.3 in Chapter 4; and
(ii) the rights of the Buyer as debtor under Sections 130, 132, 135 and 137 shall not apply to these terms and conditions.
(g) The Buyer waives the right to receive any notices dealing with the goods and default as far as the law allows.
(h) The Buyer agrees to waive any rights associated with Section 143 of the PPSA so long as sale of the Goods (collateral) by the Buyer to a third party has not occurred.
(i) The Buyer will pay all costs, expenses and other charges incurred, expended or payable by the Seller in relation to the filing of a financing statement or financing change statement in connection with these Terms and Conditions.
(j) The Buyer agrees that the Buyer will not allow security interests to be created or registered over the goods in priority to the security interest(s) held by the Seller.
(k) The Buyer agrees to allow a the Seller to register a security interest over the security interest that the Buyer may have over third parties so far as the law allows.
(l) The Buyer agrees that in the event of external administration of the Buyer, the Buyer will disclose the quantity/volume of the Seller’s Goods which are in manufactured/commingled/mixed goods or otherwise which may be work in progress as at the date of appointment of the external administrator.
(m) In respect of the PPSA, Goods means all goods the Seller supplies to the Buyer from time to time, provided that:
(i) (but solely for the purpose of the application of the PPSA) where the goods supplied are the Buyer’s inventory, then all references to Goods in these terms and conditions shall in respect of those goods, be read as
references to inventory for so long as they are held as inventory; and
(ii) where the goods supplied are not, or are no longer held as, the Buyer’s inventory, then all references to Goods in these terms and conditions shall, in respect of those goods mean the goods described in any one or more of the relevant order form, packing slip or invoice (or its equivalent, whatever called) prepared by the Seller and relating to those goods, on the basis that each such order form, packing slip or invoice (or its equivalent) is deemed to be assented to by the Buyer, incorporated in, and form part of these Terms and Conditions, and
(iii) unless the context requires otherwise, includes all proceeds of such Goods and any product or mass which the Goods subsequently become part of.
(n) As far as the PPSA allows, property, title and ownership in the Goods will not pass to the Buyer but will remain in the Seller until payment in full of the Purchase Price of the Goods and all other amounts owing is made to the Seller by the Buyer.
(o) Any risk in the Goods will pass at the time of delivery and the Buyer must insure the Goods.
(p) In the event that the Buyer defaults under these terms and conditions, the Seller may in accordance with clause 123 of the PPSA seize the Goods and in accordance with clause 125 of the PPSA retain or dispose of the Goods. Divisions 3 and 4 under Chapter 4 of the PPSA will provide the rights of the Seller in respect of retaining or disposing the Goods.
(q) In so far as the PPSA allows, the Buyer acknowledges that if it mixes the Goods with other products or items or that the Goods are no longer separately identifiable, the Buyer and Seller will be owners in common of the new product and thereafter each party will have a right to share in any proceeds of sale. The proceeds of sale will be divided between the Buyer and Seller in accordance with their own respective value of contributed product or ingredient.
(r) The authority of the Buyer to sell the Goods does not extend to the making of any warranties or conditions which exposes the Seller to liability to another person (except as to the price, the terms of payment and like provisions) and the Buyer must ensure that to the full extent permitted by law all conditions, warranties implied or imposed by law are excluded and where such a condition cannot be excluded that the Seller’s liability is limited to the full extent permitted by law.
(s) The conditions of this clause 7 apply notwithstanding any arrangement between the parties under which the Seller grants the Buyer credit.
(a) To the full extent permitted by law:
(i) the Seller gives no guarantee, condition or warranty in relation to the Goods whatsoever including as to the condition or quality of the Goods or as to their suitability or fitness for their ordinary or any special use or purpose and the description of the Goods in any contract or other document shall not import any such guarantee, condition or warranty on the part of the Seller;
(ii) all statutory and implied guarantees, conditions or warranties are excluded;
(iii) it is the responsibility of the Buyer to inspect the Goods and satisfy itself as to the condition, quality, suitability and fitness of the Goods for his purposes prior to the use or re-sale of the said Goods. If the Buyer fails to inspect the Goods (including as required under clause 6(a)), it shall have forfeited any right for compensation of any kind and must pay the full Purchase Price of the Goods to the Seller;
(iv) the Seller assumes no liability (whether for negligence or otherwise) for any technical advice or assistance given or the results obtained therefrom and any such advice is given and accepted at the Buyer’s risk;
(v) the Seller shall be under no liability whatsoever for any defects (including any defect caused by the loading of the Goods) in, or deterioration or failure of, the Goods or any part thereof (or any goods supplied with the Goods or any part thereof) whether due to design, workmanship or materials or to any cause whatsoever unless the same is due to the negligence or wilful default of the Seller or its employees or agents. The Seller shall be under no liability whatsoever for any failure of the Goods (other than in relation to a substantial ingredient of the identity of the Goods) to correspond with any description (including without limitation, any description relating to quantity, dimensions, weight, place of shipment or other statements relating to transport of the Goods); and
(vi) the Seller will not be liable to the Buyer for any loss (including but not limited to loss of profits and consequential loss) of any kind whatsoever arising out of the supply or failure to supply the Goods.
(b) The Buyer shall comply with all instructions of the Seller in relation to the handling, fitting, installation and use of the Goods and, notwithstanding such compliance, the Buyer shall keep the Seller indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature, including, without prejudice to the generality of the foregoing, claims for death, personal injury, damage to property and consequential loss, (including loss of profit) which may be made against the Seller or which the Seller may sustain, pay or incur as a result of or in connection with the manufacture, sale, export, import or use of the Goods unless such cost, claim, demand, expense or liability shall be directly and solely attributable to any breach of Contract by, or negligence of, the Seller or a duly authorised employee or agent of the Seller.
The Buyer represents and warrants to the Seller that the Goods have been, or will be, acquired by the Buyer for the purpose of re-supply or for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture. Accordingly, the Buyer acknowledges that it is not a consumer for the purposes of the CCA.
All Contracts made between the Seller and the Buyer in Australia shall be governed by and construed in accordance with the laws of the State of New South Wales and both parties submit to the exclusive jurisdiction of the courts of that State.
(a) The Seller may assign, novate or sub-contract its rights and/or obligations under this Agreement without the consent of the Buyer.
(b) The Buyer has no right of assignment without the Seller’s consent, which consent shall not be unreasonably withheld.
(c) If at any time the Seller does not enforce any of these terms and conditions or grant the Buyer time or other indulgence, the Seller shall not be construed as having waived that term or condition or its rights to later enforce that or any other term or condition.
(d) The rights, powers and remedies provided to the Seller under these Terms and Conditions are in addition to, and do not exclude or limit, any right, power or remedy provided by the law or equity or any agreement.
(e) These Terms and Conditions constitute the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and contains all of the representations, undertakings, warranties, covenants and agreements of the parties.
(f) The Seller may amend these Terms and Conditions by giving at least 7 days notice in writing to the Buyer from time to time. Any amendment to a Contract that incorporates these Terms and Conditions must be in writing and be signed by both parties.
(g) Any provision of these Terms and Conditions which is prohibited or unenforceable in any jurisdiction will be ineffective in that jurisdiction to the extent of the prohibition or unenforceability. This will not invalidate the remaining provisions of this deed nor affect the validity or enforceability of the provision in any other jurisdiction.
