Terms And Conditions Of Quotation And Sale - Australia

TERMS AND CONDITIONS OF QUOTATION AND SALE (FEBRUARY 2019)

These are the terms and conditions upon which the Seller or as agents for Seller sell and quote for the sale of goods and/or supply of any services.

1. DEFINITIONS

In these terms and conditions, unless the context otherwise requires:

a. “Application” in relation to a Buyer means the 30 Day Commercial Credit Account Application signed by the Buyer.

b. “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and to the extent applicable the corresponding provisions of State Fair Trading legislation.

c. “Buyer” means the person acquiring the Goods or the Services from the Seller, including any Buyer named in the relevant Sales Invoice or Quotation.

d. “Business Day” means a day other than a weekend or public holiday in the place which the goods are delivered.

e. “Consumer” means:

i. a person acquiring Goods and/or Services of a kind ordinarily acquired for personal, domestic or household use or consumption; or

ii. a person acquiring Goods and/or Services at a price not exceeding $40,000 (or any greater amount prescribed under the Australian Consumer Law); or

iii. the Goods consisted of a vehicle or trailer acquired for use principally in the transport of goods on public roads,

But excludes a person acquiring the Goods and/or Services, or holding himself or herself out as acquiring the Goods and/or Services for the purpose of:

iv. re-supply; or

v. using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture or in the course of repairing or treating other goods or fixtures on land.

f. “Consumer Law” means the Competition and Consumer Act 2010 (Cth), the Australian Consumer Law or any equivalent state or territory legislation.

g. “Excluded Loss” means:

i. in the case of loss or damage resulting from a breach of contract (including any contractual duty of care) loss of revenue; loss of profit; loss or denial of opportunity; loss of access to markets; loss of goodwill; loss of business reputation; loss arising from late delivery or failure to deliver goods; loss arising from any business interruption; increased overhead costs and any indirect, remote or unforeseeable loss occasioned by that breach, whether or not in the reasonable contemplation of the Buyer and the Seller at the time of the Quotation, Sales Invoice or any delivery of goods as being a probable result of the relevant breach; and

ii. in the case of loss or damage arising from any tort (including negligence) which does not also constitute a breach of contract - indirect, remote or unforeseeable loss and, in the case of pure economic loss, loss not flowing directly from the commission of the tort.

h. “Exclusive Goods” means any goods which are, at the Buyer’s request, embellished, embroidered, printed, machined, modified, cut-to-size, powder coated, painted or specifically ordered for the Buyer.

i. “Goods” means any goods supplied by the Seller to the Buyer from time to time including under these terms and conditions.

j. “GST” means the goods and services tax as imposed by the GST Law together with any related interest, penalties, fines or other charge.

k. “GST Amount” means the GST exclusive amount of any Payment (or the relevant part of that Payment) multiplied by the appropriate rate of GST.

l. “GST Law” has the meaning given to that term in A New Tax System (Goods and Services) Act 1999 and any regulation made under that Act.

m. “Interclamp fitting” means the Goods that are fittings manufactured by the Seller, and excludes Goods manufactured by any other manufacturers.

n. “Payment” means any amount payable in respect of any Goods and/or Services including under or in connection with a Quotation or Sales Invoice including any amount payable by way of indemnity, reimbursement or otherwise and includes the provision of any non-monetary consideration.

o. “Person” includes an individual, the estate of an individual, a body politic, a corporation, an association (incorporated or unincorporated) and a statutory or other authority.

p. “PPSA” means Personal Property Securities Act 2009 (Cth).

q. “Purchase Price” means the price for the Goods and/or Services set out in the relevant Quotation or Sales Invoice.

r. “Purchase Monies Securities Interest” or “PMSI” has the meaning given in section 14 of the PPSA as amended from time to time.

s. “Quotation” means the form of quotation submitted by the Seller to the Buyer in which these terms and conditions are deemed to be incorporated.

t. “Sales Invoice” means the sales invoice issued by the Seller to the Buyer in which these terms and conditions are or are deemed to be incorporated.

u. “Seller” means INTERCLAMP PTY LIMITED, ABN 96 168 906 705.

v. “Services” means services to be supplied from time to time by or on behalf of the Seller (including by the Seller’s subcontractors), which may include installation of Goods.

w. “Tax Invoice” has the meaning given to that term by the GST Law.

x. “Taxable Supply” has the meaning given to that term by the GST Law.

2. INTERPRETATION

a. Any special conditions specified on a Quotation or Sales Invoice will, to the extent they are inconsistent with these terms and conditions, take precedence over these terms and conditions.

b. Words importing the singular will include the plural (and vice versa).

c. If any provision of these terms and conditions is invalid and does not go to the essence of this agreement, these terms and conditions should be read as if that provision has been severed.

d. A reference in these terms and conditions to dollars or $ means Australian dollars and all amounts payable under these terms and conditions are payable in Australian dollars.

e. A reference in these terms and conditions to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision.

f. An expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or governmental agency.

g. References to the word ‘include’ or ‘including' are to be construed without limitation.

3. GOVERNING TERMS AND CONDITIONS

a. These are the only terms and conditions which are binding upon the Seller, except where otherwise agreed in writing by the Seller. Any direction by the Buyer either verbal or written to procure Goods or Services from the Seller will be deemed as acceptance by the Buyer of these terms and conditions, despite any provisions to the contrary in the direction or any purchase order issued by the Buyer.

b. These terms and conditions will apply however the Buyer communicates with the Seller, including via the Seller’s website https://www.interclamp.com.au/ and all associated sub-domains and domains (Site) owned by the Seller and its related bodies corporate, and any ordering form or other method of communication available by the Site. These terms and conditions also apply in respect of any use of the Site by any users on behalf of the Buyer, regardless of how the Buyer accesses the Site, including the use of information services provided through this Site. The Buyer’s use of and access to this Site constitutes the Buyer’s acceptance of these terms and conditions as they exist at the relevant time.

4. TERMS OF PAYMENT

Payment to the Seller for Goods delivered and accepted and Services supplied is due within 30 calendar days of the end of the month in which the Buyer is invoiced for the Goods and/or Services. If the Buyer fails to make payment in accordance with this clause, all amounts owing by the Buyer to the Seller on any account will immediately become due and payable. Each outstanding amount will bear interest of the rate of 10% per annum calculated on a daily basis from the day it falls due until the day it is paid.

5. INSPECTION AND ACCEPTANCE

The Buyer must inspect all Goods upon delivery and must within two (2) Business 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, subject to any non-excludable condition implied by law (see clause 22), to the extent permitted by law the Goods are deemed to have been delivered to and accepted by the Buyer.

6. RETURNS

Return of Goods (other than in situations where the Seller is required to accept a return of Goods under the Australian Consumer Law) must be approved by the Seller on a Material Returns Authorisation Form. These authorised returns must be freight prepaid and will only be accepted if they are in a fully saleable condition and (unless otherwise agreed with the Seller) the goods are returned within 14 days of supply. The Seller reserves the right to charge a handling fee of $15 or 15% of the price of the goods returned (whichever is greater) under this provision, plus the original cost of transport to the Buyer. The Seller will not accept the return of Exclusive Goods other than in situations where the Seller is required to accept a return of such goods under the Australian Consumer Law.

7. QUOTATIONS

a. Unless previously withdrawn, a quotation is valid for 30 days or such other period as stated in it. A quotation is not to be construed as an obligation to sell but merely an invitation to treat and no contractual relationship will arise from it until the Buyer’s order has been accepted in writing by the Seller.

b. The Seller will not be bound by any conditions attaching to the Buyer’s order or acceptance of a Quotation and, unless such conditions are expressly accepted by the Seller in writing, the Buyer acknowledges that such conditions are expressly negated.

c. Every Quotation is subject to and conditional upon obtaining any necessary import, export or other licence.

8. GST

The parties agree that:

a. the Purchase Price and all other Payments are inclusive of GST;

b. each party will comply with its obligations under the Consumer Law when calculating the amount of any Payment and the amount of any relevant Payments will be adjusted accordingly;

c. if the whole or any part of any Payment is the consideration for a Taxable Supply for which the payee is liable to GST, the payer must pay an amount equal to the Payment including the GST Amount, either concurrently with that Payment or as otherwise agreed in writing.

d. any reference to a cost or expense in this Agreement excludes any amount in respect of GST forming part of the relevant cost or expense when incurred by the relevant party for which that party can claim an Input Tax Credit; and the payee will provide to the payer a Tax Invoice.

9. PASSING OF PROPERTY AND RISK

a. Goods supplied by the Seller to the Buyer are at the Buyer’s risk immediately upon the first to occur delivery to the Buyer, into the Buyer’s custody or at the Buyer’s direction (whichever happens first). The Buyer must insure the goods from the time of that delivery at its cost against such risks as it thinks appropriate, must note the interest of the Seller on the insurance policy and must produce a certificate to this effect to the Seller upon request. The Buyer agrees that these terms and conditions create a PMSI in the Goods (and their proceeds) supplied presently and the future by the Suppler to the Buyer. The Buyer agrees to do all things necessary and execute all documents reasonably required to register the PMSI granted by the Buyer under these terms and conditions and to ensure that the Seller acquires a perfected security interest in the Goods under the PPSA.

b. Property in the goods supplied by the Seller to the Buyer under these terms and conditions will not pass to the Buyer until those Goods and other goods have been paid for in full.

c. Until the goods have been paid for in full:

i. the Buyer must store the Goods in a manner which shows clearly that they are the property of the Seller; and

ii. the Buyer may sell the Goods, in the ordinary course of its business, as agent for the Seller and must account to the Seller for the proceeds of sale (including any proceeds from insurance claims). These proceeds must be kept in a separate bank account.

d. The Buyer irrevocably authorises the Seller at any time to enter onto any premises upon which:

i. the Seller’s Goods are stored to enable the Seller to:– inspect the Goods; and/or – if the Buyer has breached these terms and conditions, reclaim the Goods;

ii. the Buyer’s records pertaining to the Goods are held to inspect and copy such records.

e. The Buyer and the Seller agree that the provisions of this clause apply notwithstanding any arrangement under which the Seller grants credit to the Buyer.

f. Each party consents to the other perfecting any security interest under this agreement which arises by operation of the PPSA in any property by registration under the PPSA and agrees to do anything reasonably requested by the other party to enable it to do so.

g. The parties contract out of each provision of the PPSA which, under the PPSA, they are permitted to contract out of, other than:

i. sections 117 and 118 (relationship with land laws); and

ii. sections 134(1) and 135 (retention of collateral).

h. The Buyer’s right to possession of Goods still owned by the Seller under these terms and conditions will immediately cease if:

i. The Buyer, being an individual, commits an act of bankruptcy;

ii. The Buyer, being a company, circumstances arise where a receiver, manager, administrator or controller becomes entitled to take possession of any of its assets, any proceedings are instituted for winding up, or the Buyer entering into a deed of company arrangement;

iii. The Buyer ceasing or threatening to cease conducting business in the normal manner or applying for deregistration or receives a deregistration notice;

iv. Any cheque the Buyer provides to the Seller is dishonoured for payment;

v. The Buyer failing to comply with any demand for payment issued by the Seller; or

vi. The Buyer breaching any of the terms and conditions contained herein and/or are in default of any other agreement between the Seller and the Buyer.

i. Each party waives its right to receive each notice which, under section 157(3) of the PPSA, it is permitted to waive.

j. Each party waives its rights to receive anything from any other party under section 275 of the PPSA and agrees not to make any request of any other party under that section.

10. SUPPLY

The Seller reserves the right to suspend or discontinue the supply of Goods to the Buyer on reasonable grounds without being obliged to give any reason for its action.

11. PART DELIVERIES

The Seller reserves the right to make part deliveries of any order, and each part delivery constitutes a separate sale of Goods upon these terms and conditions. A part delivery of an order will not invalidate the balance of an order.

12. INSTALLATION

a. The Seller’s Quotation or Sale Invoice is made on a supply only basis. Installation and commissioning (if any) is at the expense of the Buyer unless otherwise specified in writing by the Seller.

b. All Services are based on information provided by the Buyer and the Seller has no responsibility to confirm whether any drawings, measurements, dimensions, specifications or other information provided by the Buyer is correct. The Buyer is solely responsible for all information provided by the Buyer to the Seller.

13. DIMENSIONS, PERFORMANCE DATA AND OTHER DESCRIPTIVE DETAILS

a. Photographs, drawings, illustrations, weights, dimensions and any other particulars accompanying, associated with or given in a Quotation, descriptive literature, catalogue or other medium approximate the goods offered but may be subject to alteration by the manufacturer or supplier without notice.

b. To the extent permitted by statute, any performance data provided by the Seller, a supplier or manufacturer is an estimate only and should be construed accordingly.

c. Unless agreed to the contrary in writing, the Seller reserves the right to supply an alternative brand or substitute product that has characteristics that are materially consistent with the goods offered when necessary.

14. SHIPMENT AND DELIVERY

a. Upon acceptance of an order by the Seller, the Seller will notify the Buyer of an estimated period of shipment or delivery. If any variation has occurred in the estimated period, the Seller will notify the Buyer. Unless the Buyer objects in writing within 7 days of that notification to the Buyer, the period of shipment or delivery notified to the Buyer will be the contractual period for shipment or delivery.

b. The Seller’s delivery charge as advised or applicable from time to time will apply to all deliveries unless otherwise stated by the Seller on the Quotation.

15. MANUFACTURERS’ CHANGES

Where a Seller is acting as agent for a manufacturer or supplier, to the extent permitted by law the Seller will not be liable for any alteration or variation in the Goods made by this manufacturer or the supplier.

16. CURRENCY

Where Goods are imported into Australia, any adverse variation in the price arising from fluctuation in exchange rates of at least 5% between the date of the Buyer’s order and the date of payment by the Seller will be to the Buyer’s account.

17. CONTINGENCIES

Any charge, duty, impost, sales tax or other similar amount which is not applicable at the date of Quotation or Sales Invoice but which is subsequently levied upon the Seller in relation to a Quotation or Sales Invoice as a result of the introduction of any legislation, regulation or governmental policy, will be to the Buyer’s account.

18. CHARGES BEYOND POINT OF DELIVERY QUOTED

Unless otherwise agreed in writing, if the Seller prepays freight, insurance, custom and import duties (if any), landing and delivery charges and all other charges in connection with shipment and delivery of the goods, then any such charges will be to the Buyer’s account. The Seller reserves the right to nominate the means of delivery.

19. FORCE MAJEURE

If the performance or observance of any obligations of the Seller is prevented, restricted or affected by reason of a force majeure event including strike, lock out, industrial dispute, raw material shortage, breakdown of plant, transport or equipment or any other cause beyond the reasonable control of the Seller, the Seller may, in its absolute discretion give prompt notice of that cause to the Buyer. On delivery of that notice the Seller is excused from such performance or observance to the extent of the relevant prevention, restriction or effect.

20. DEFAULT OF BUYER

If these terms and conditions are not strictly observed by the Buyer, the Seller may in its absolute discretion, refuse to supply to the Buyer and the Seller will not be liable to the Buyer for any loss or damage the Buyer may sustain as a result of such refusal. The costs of collection of any moneys are due and payable by the Buyer, including the fees of any mercantile agent or lawyer engaged by the Seller.

21. BUYER’S CANCELLATION

Unless otherwise agreed in writing, the Buyer may not cancel an order which has been accepted by the Seller. If a right of cancellation is expressly reserved to the Buyer, such right of cancellation must be exercised by notice in writing from the Buyer to the Seller not later than 7 days prior to the estimated date of shipment by the manufacturer or the Seller as the case may be. Unless otherwise agreed between the Buyer and Seller, upon cancellation prior to shipment any deposit paid by the Buyer are forfeited to the manufacturer or Seller (as the case may be). 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 (whether in store, in transit or being manufactured) which were procured or ordered by the Seller before such cancellation, unless otherwise agreed in writing by the Seller.

22. WARRANTY AND LIABILITY OF SELLER

a. The Seller makes no express warranties under this Agreement. Manufacturers of goods may, from time to time, provide a voluntary warranty directly to the Buyer in relation to Goods supplied to the Buyer. The Buyer must address issues relating to a manufacturer’s warranty with the manufacturer on the terms of that warranty.

b. Buyer must immediately notify the Seller in writing of any defect in the Goods supplied by the Seller. The Buyer must not carry out any remedial work to allegedly defective Goods without first obtaining the written consent of the Seller to do so. The provisions of this clause 22b do not constitute a warranty in relation to the quality or fitness of the Goods, or require the Seller to repair or replace goods, or offer a refund in relation to goods, in circumstances other those set out in Australian Consumer Law (to the extent that the Australian Consumer Law applies to the Goods).

c. The Consumer Law guarantee certain conditions, warranties and undertakings, and gives you other legal rights, in relation to the quality and fitness for purpose of consumer goods sold in Australia. These guarantees cannot be modified nor excluded by any contract. Nothing in these terms and conditions purports to modify or exclude the conditions, warranties, guarantees and undertakings, and other legal rights, under the Australian Consumer Law and other laws which cannot be modified or excluded. Except as expressly set out in this Agreement and the Australian Consumer Law, the Seller makes no warranties or other representations under this Agreement. The Seller’s liability in respect of these warranties, representations, undertakings and guarantees is limited to the fullest extent permitted by law.

d. Without limiting clause 22c, where the Seller sells Goods to the Buyer, and the Buyer purchases them as a Consumer, then the Australian Consumer Law provides certain guarantees in relation to the Goods. The rights of the Buyer buying goods as a Consumer include those set out in clause 22e below.

e. Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law.

f. To the extent permitted by law, the liability, if any, of the Seller arising from the breach of any implied conditions or warranties, or failure to comply with a statutory guarantee under the Australian Consumer Law, in relation to the supply of goods for services other than goods for services of a kind ordinarily acquired for personal, domestic or household use or consumption, will at the Seller’s option be limited at our option to:

i. in the case of goods, the replacement of the goods or resupply of the goods by the Seller, or the cost of replacement or resupply of the goods; or

ii. in the case of goods, the repair of the goods, or the cost of repair of the goods; or

iii. in the case of services, the supply of the relevant Services again or the cost of re-supplying the Services will.

g. Subject to clause 22c, the Seller will not in any circumstances be liable to the Buyer under or in connection with this Agreement, or in negligence or any other tort or otherwise howsoever, as a result of any act or omission in the course of or in connection with the performance of this Agreement, for or in respect of any Excluded Loss.

h. The Seller makes no express warranties in relation to the suitability for any purpose of goods or materials supplied by a Seller.

i. To the extent permitted by statute, all warranties, conditions and guarantees (whether express, implied or applied, and whether given by the Seller, the manufacturer or a third party) and any obligation of the Seller to repair or replace any goods are void in respect of any goods which the Buyer tampers with or alters.

j. Notwithstanding clause 22a, to the extent that the Goods are Interclamp fittings, the Seller warrants that the Interclamp fittings will conform in all material respects to the published specifications and standards for a period of 5 years from the date of delivery of the Goods. Where the Interclamp fittings fail to conform in a material respect to the published specifications or standards within 5 years from the date of delivery of the Goods, the Seller will (at the Seller’s option) replace or repair the relevant Interclamp fittings (where such replacement or repair is the Buyer’s exclusive remedy for such failure). The warranty provided in this clause:

i. is in addition to any warranty contained in the Australian Consumer Law;

ii. is subject to the Interclamp fittings being installed and used in accordance with all specifications, guidance and instructions provided by the Seller from time to time (including specifications, guidance and instructions provided directly to the Buyer or by publication of them on the Seller’s website);

iii. is subject to the Buyer notifying the Seller within 14 days of the failure of the relevant Interclamp fittings; and

iv. does not include any costs incurred by the Buyer in relation to assembly, disassembly, reinstallation or transport of the relevant Interclamp fittings (or anything affixed to them, or to which they are affixed).

v. does not include corrosion.

vi. does not include defects in the galvanizing or affecting the appearance of the product, including oxidization, patina, discolouration, fading;

vii. does not include normal wear and tear, accidents, negligence, vandalism, misuse; and

viii. does not include modified or repaired goods.

k. The Seller may contract or arrange for third parties to provide the whole or part of the supply of Goods and/or Services to the Buyer. The Buyer must not bring any claims or actions against such third parties. If the Buyer brings such a claim or action in breach of these terms and conditions, the Buyer agrees to indemnify the Seller and the person against whom the claim or action is made against the consequences of that claim or action. The Buyer agrees that in entering into these terms and conditions, the Seller is acting as the agent of and trustee for each of the Seller’s employees, officers, agents and subcontractors, and each of these persons is deemed to be a party to these terms and conditions for the purpose of entitling each of them to enforce, have the benefit of and rely upon these terms and conditions.

23. SUITABILITY OF PRODUCT

a. For any application, the suitability or otherwise of the Interclamp system must first be assessed by the Buyer against relevant Australian Standards and Building Codes and by reference to the Design and Installation Instructions available at www.interclamp.com/en/installation/instructions. A printed copy of the Instructions is available on request.

b. The Seller accepts no responsibility for any loss or damage arising from misuse of Interclamp fittings.

c. The ultimate responsibility for the correct choice of size and type of fitting for any application belongs with the Buyer.

d. The Buyer is responsible for ensuring that the construction or structure is sufficiently strong to support the weight of its component parts plus any applied load, and that suitable fixings are used.

e. Interclamp fittings must not be welded.

f. The Seller strongly recommends that types 132, 152 or 232 are always used where baseplates are required, fitted so that the fixing holes are in line with the applied load.

g. To provide sufficient stability, whole structures must not be made from swivel fittings alone.

24. ALTERATION TO CONDITIONS

The Seller may, at any time and from time to time, alter these terms and conditions. Any variation to these standard terms and conditions will only apply to any contract for a specified term that incorporates a version of these standard terms and conditions released after to the variations.

25. VIENNA SALES CONVENTION

To the fullest extent permitted by law, the United Nations Convention on Contracts for the International Sale of Goods (Vienna 1980) known as the Vienna Sales Convention does not apply to the contract comprised by these terms and conditions nor do any of the terms and conditions express or implied by the Vienna Sales Convention form part of the contract.

26. GOVERNING LAW

These terms and conditions and any contract including them are governed by and construed in accordance with the laws of the State of Victoria and the Seller and the Buyer submit to the non-exclusive jurisdiction of the Courts of Victoria.