GENERAL TERMS & CONDITIONS OF SALE
AKS Industires Australia Pty Limited (ACN 151 483 984)
ALL QUOTATIONS AND CONTRACTS ARE SUBJECT TO THE FOLLOWING CONDITIONS OF SALE
Effective 22 March 2019
- 1.1 These Conditions of Sale will apply to every transaction between the Seller and the Buyer for the supply of Goods and any terms and conditions of the Buyer’s order deviating from or inconsistent with these Conditions of Sale are expressly rejected by the Seller. This rejection also extends to any statement by the Buyer that the Buyer’s terms and conditions will prevail and to any stipulation by the Buyer as to the manner of declaring such rejection.
- 1.2 If any of the provisions of these Conditions of Sale are unlawful or invalid by reason of any Law, then such provision will be severed from the rest of these Conditions which will remain valid and binding on the parties.
2. QUOTATIONS, PURCHASE PRICES & ORDERS
- 2.1 Unless otherwise agreed in writing, Purchase Prices and quotations are:
- 2.1.1 are ex the Seller’s warehouse;
- 2.1.2 are exclusive of GST and all other taxes, duties or government charges levied in respect of the Goods;
- 2.1.3 exclusive of building or development application fees; and
- 2.1.4 exclusive of delivery charges.
- 2.2 A quotation is not binding on the parties.
- 2.3 An order placed by the Buyer is not binding upon the parties until it has been accepted by the Seller and, subject to clause 3.1, upon the acceptance of an order by the Seller, the terms of the order, including the Purchase Price contained therein, becomes binding on the parties.
- 2.4 Confirmation orders must be marked as such by the Buyer, if not the Seller will consider the Buyer’s order as original.
3. VARIATIONS IN PURCHASE PRICE & SET-OFF
- 3.1 Should there be any variation in details, sizes and quantities, delivery instructions or any other item or matter on which a quotation or Purchase Price is based, the Seller may revise the quotation or Purchase Price by an amount that corresponds with any resulting increase in cost.
- 3.2 There is no right of set-off in respect of any claims against the Seller.
- 4.1 The Seller has no obligation to insure the Goods at any stage or at all. The Buyer is responsible to effect whatever insurance cover it requires at its own expense.
5. CASH PAYMENT TERMS
- 5.1 If no trading account exists with the Seller, all products supplied by the Seller to the Buyer must be paid on notification from the Seller that the goods are ready for delivery.
- 5.2 The Seller reserves the right to request the Buyer make a payment of one third (33%) of the Purchase Price at the time of ordering the Goods, further progress payments as agreed in writing by the parties, and the balance on notification from the Seller that the Goods are ready for delivery.
6. CREDIT PAYMENT TERMS
- 6.1 If a trading account has been approved by the Seller, all products supplied by the Seller to the Buyer must be paid per agreed terms, settlement is due within thirty (30) days from the last day of the month in which each delivery was made unless otherwise specified in any Terms of Credit applicable to the Buyer.
- 6.2 Subject to clause 6.1, the Seller reserves the right to request the Buyer make a payment of one third (33%) of the Purchase Price at the time of ordering the Goods, further progress payments as agreed in writing by the parties, and the balance within thirty (30) days from the last day of the month in which the delivery was made.
7. DEFAULT IN PAYMENT
- 7.1 If the Buyer is in breach of clause 5, the Seller may charge interest on overdue amounts at the rate provided for in the Terms of Credit or, if no such terms apply, the rate provided for by Section 2 of the Penalty Interests Rate Act 1983 (Vic), plus 2%. Such interest will be compounded daily from the date of due payment until the date of payment in full of the overdue amount, plus interest.
- 7.2 The Buyer will pay to the Seller upon demand all costs and expenses incurred by the Seller as a result of the breach of clause 6.
- 8.1 The Buyer may not cancel or alter an order with the Seller’s prior written consent. If the Seller agrees to alter or cancel an order the Buyer will indemnify the Seller against any loss damage and expense incurred by the seller in relation to the alteration or cancellation of that order, including the cost of return freight, return shipping to factory of origin, items purchased from third parties for inclusion in the Goods and all labour and engineering costs incurred by the Seller in the execution or part execution of the Goods and including compensation to any of the Seller’s suppliers and loss of profit.
- 8.2 If the Seller has reason to believe that it will be unable to supply an Order to the Buyer within a reasonable time or at all due to circumstances beyond its reasonable control, the Seller may, without penalty, cancel the Order, in which case, the Seller will refund the Buyer any portion of the Purchase Price already paid in respect of that Order.
9. RETURN OF GOODS AND CREDITS
- 9.1 The Buyer cannot cancel an order which has been accepted or acknowledged by the Seller unless the Seller agrees at its sole discretion.
- 9.2 Subject to clause 9.1, the Seller may, from time to time and at its discretion, accept returns of standard product (i.e. product which is not specialised or customised). Any such returns will be subject to the Seller’s standard restocking fee of 20%. All Goods must be returned at the Buyer’s expense within seven (7) days of return acceptance by the Seller and must be returned in an unsoiled, undamaged and resalable condition in their original packaging.
- 9.3 Subject to clause 9.1, the Seller may accept the cancellation of customised orders. Any such returns will be subject to fees up to 100% of the value of the Goods.
- 10.1 The costs of delivery of the Goods to the Buyer are for the Buyer’s account whether or not the Seller arranges delivery.
- 10.2 Where the Seller arranges delivery of the Goods, it does so as agent only of the Buyer and the Buyer will indemnify the Seller against any loss or damage incurred or suffered by the Buyer, the Seller or any other person in connection with the delivery of the Goods.
- 10.3 The Seller may deliver the Goods by instalments or partial shipments and the Buyer will accept each delivery
- 10.4 Any time quoted for delivery is an estimate only. the Seller will use all reasonable endeavours to meet agreed delivery dates and times, but (to the extent permitted by Law) will not be held liable by the Buyer for any loss or damage incurred or suffered by the Buyer in connection with any failure or delay in delivery.
- 10.5 The Buyer will provide or cause to be provided full and clear access for delivery and will, at its own expense, provide all necessary assistance in unloading the Goods at the nominated place of delivery.
- 10.6 If delivery of the Goods by the Seller is delayed for a cause other than its own negligence the Buyer will be liable for extra charges, losses or expenses incurred by the Seller.
- 11.1 Subject to clause 11.2, risk of loss and damage to the Goods passes to the Buyer upon the Goods leaving the Seller’s warehouse whether or not the Seller arranges delivery.
- 11.2 If delivery of Goods is delayed due to any circumstances beyond the control of the Seller, the risk of loss or damage passes to the Buyer on the day when the Goods were first ready for delivery and this day is to be regarded as date of delivery for purposes of payment in Clause 5.
12. TITLE TO THE GOODS
- 12.1 Ownership of and title to the Goods remains with the Seller until the Buyer has paid the Seller in full the Purchase Price.
- 12.2 Until ownership of and title of the Goods passes to the Buyer, the Buyer holds the Goods as bailee for the Seller and:
- 12.2.1 the Buyer will not, without the Seller’s consent:
- 12.2.2 make any alterations to the Goods;
- 12.2.3 purport or attempt to sell or dispose of the Goods except in the ordinary course of its business;
- 12.2.4 charge or encumber the Goods; and
- 12.2.5 the Seller may give notice in writing to the Buyer to return the Goods or any of them to the Seller and, upon such notice, the Buyer’s right to obtain ownership or any other interest in the Goods will cease.
- 12.3 If the Buyer supplies the Goods to any person before ownership of and title to the Goods passes to it, whether or not with the Seller’s consent, the Buyer holds the proceeds of the resupply of the Goods on trust for the Seller and will pay the proceeds of sale to the Seller upon receipt.
- 12.3 If the Buyer breaches clauses 12.2.1 or 12.3, or commits an Act of Default, the Seller may enter upon the Buyer’s premises, or any other site, to repossess the Goods without incurring liability to the Buyer or any other person, and the Buyer grants the Seller an irrevocable licence to do so and will indemnify the Seller from Loss incurred as a result of such entry or repossession.
13. PERSONAL PROPERTY SECURITIES ACT 2009 (CTH)
- 13.1 The Buyer acknowledges and agrees that:
- 13.1.1 these Conditions of Sale constitute a Security Agreement for the purposes of the PPSA which creates a Security Interest in favour of the Seller in the Goods and their proceeds and in all present and after acquired property supplied by the Seller to the Buyer and their proceeds to secure payment of the Purchase Price and any indebtedness of the Buyer to the Seller;
- 13.1.2 the Seller may, without notice to the Buyer, register its Security Interest in the Goods, in all present and after acquired property and in their proceeds as a Purchase Money Security Interest on the Register;
- 13.1.3 the Buyer will do all things necessary to facilitate Registration of the Seller’s Security Interest.
- 13.2 To the extent permitted by law, the Buyer irrevocably waives any rights it may have to receive notices under sections 95, 118, 121, 123(2), 130, 132(3)(d), 132(4) and 135 of the PPSA, or to reinstate this Security Agreement under section 143 of the PPSA.
- 13.3 The Buyer waives its rights under section 157 of the PPSA to receive a notice of verification statement.
- 14.1 The Seller warrants that the Goods comply with the warranties included in any Warranty Document and any guarantees that cannot be excluded under the ACL or any other Law. To the extent permitted by Law, all other guarantees, warranties, undertakings, and representations expressed or implied, whether arising at Law or otherwise, which are not given in these Conditions of Sale or any Warranty Document, are expressly excluded.
- 14.2 If the Buyer is a Consumer and any Goods supplied by the Seller are not goods of a kind ordinarily acquired for personal, domestic or household use or consumption, the Buyer agrees that the Seller’s liability for a failure to comply with a consumer guarantee under the ACL in relation to those Goods (other than a guarantee under sections 51, 52 and 53 of the ACL) is limited, at the option of the Seller, to one or more of the following:
- 14.2.1 the replacement of the Goods or the supply of equivalent goods;
- 14.2.2 the repair of the Goods;
- 14.2.3 the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
- 14.2.4 the payment of the cost of having the Goods repaired.
- 14.3 If the Buyer is not a Consumer, to the extent permitted by Law, the Seller will not be liable in any circumstances for any:
- 14.3.1 loss or damage to any property or person whatsoever resulting from the provision of the Goods; or
- 14.3.2 Consequential Loss.
15. NO OBLIGATION TO SERVICE OR INSPECT
- 15.1 The Buyer acknowledges that, except as required by Law, the Seller is under no obligation to conduct a site inspection or service the Goods supplied.
16. AGREED USE
- 16.1 The Buyer acknowledges that the matters set out in the Order and/or schedule hereto are a true description of the purposes for which the Goods purchased hereby are to be applied in respect of work required to be performed by such Goods and that the Buyer may forfeit any rights if any it may have against the Supplier for the supply of the subject Goods if they are applied to any other use.
- 16.2 The Buyer forfeits any right or claim against the Seller if any alteration to the Goods sold or quoted is carried out without the Seller’s written consent.
- 16.3 The Buyer further acknowledges sole responsibility for any damage or injury to property or persons caused by using the sold Goods to pump or transfer hazardous or toxic fluids or substances.
17. PERMITS & APPROVAL
- 17.1 It is the Buyer’s obligation to obtain any necessary permits or approvals for the installation and use of the Goods.
18. INTELLECTUAL PROPERTY
- 18.1 All Intellectual Property of the Seller, including any developed during the supply of the Goods, is the sole property of the Seller.
- 19.1 All information supplied by a party to the other party will be treated as confidential except to the extent that it becomes public knowledge and will not be disclosed to a third party without the prior written consent of the party who originally supplied the information, or as required by law.
20. CLERICAL ERRORS
- 20.1 Clerical errors in computations, typing or otherwise of catalogue quotation, acceptance offer, invoice, delivery docket, credit note, specifications, or the Seller will be subject to correction.
- 21.1 All modifications and amendments to these Conditions of Sale will be in writing and if otherwise will not be binding upon the Seller.
Unless otherwise inconsistent with the context:
- 22.1 Act of Default occurs if either party:
- 22.1.1 commits a material breach of these Conditions of Sale;
- 22.1.2 commits an act of bankruptcy, enters into any composition or arrangement with its creditors or does anything which would make it liable to be put into liquidation;
- 22.1.3 is subject to a resolution or an application for liquidation; or
- 22.1.4 has a receiver, other form of insolvency administrator or statutory or official manager appointed over any of its assets,
- 22.2 Agreement means the agreement between the Seller and the Buyer for the ongoing supply of Goods as constituted by these Conditions of Sale and any Terms of Credit agreed upon in writing by the parties;
- 22.3 All present and after acquired property, Purchase Money Security Interest, Registration, Security Agreement, Security Interest and Verification Statement have the meanings prescribed to them in the PPSA;
- 22.4 the Buyer means the Buyer whose order for the purchase of Goods is accepted by the Seller;
- 22.5 Consequential Loss means loss of revenue, profits, anticipated savings or business opportunity and any form of consequential, special, indirect, punitive or exemplary loss or damages;
- 22.6 Consumer has the meaning prescribed to it in the ACL;
- 22.7 Consumer Goods means goods supplied by the Seller to the Buyer that are intended to be used, or are of a kind likely to be used, for personal, domestic or household use or consumption;
- 22.8 the Buyer means the person or entity purchasing Goods from the Seller pursuant to these Conditions of Sale, or any person or entity acting on their behalf;
- 22.9 the Buyer’s Premises means any site owned, possessed, used or controlled by the Buyer;
- 22.10 Goods means goods supplied or to be supplied by the Seller to the Buyer pursuant to this Agreement;
- 22.11 GST has the meaning prescribed to it in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended);
- 22.12 Intellectual Property means all rights resulting from intellectual activity and includes copyright, inventions, patent rights, registered and unregistered trademarks, design rights, circuit layouts and all rights and interests of a like nature, including but not limited to methods and techniques, together with any documentation relating to such rights and interests;
- 22.13 Law means any relevant federal, state or local statute, ordinance, rule, regulation or standard, and includes the Australian Consumer Law, as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended from time to time;
- 22.14 Loss means any liability, including any loss, claim, damage, demand, injury or death, and any penalty imposed by a statutory or other authority;
- 22.15 Order means an order by the Buyer for the supply of Goods pursuant to these Conditions of Sale prepared in accordance with any order process imposed by the Seller as notified to the Buyer from time to time;
- 22.16 Person includes corporation;
- 22.17 PPSA means the Personal Property Securities Act 2009 (Cth);
- 22.18 Purchase Price means the Purchase Price for the Goods and, unless otherwise agreed in writing, excludes delivery costs;
- 22.19 Quotation means any written quotation provided by the Seller for the provision of Goods;
- 22.20 Register means the Personal Properties Securities Register as established under the PPSA;
- 22.21 the Seller means AKS INDUSTRIES AUSTRALIA (ACN 151 483 984) and affiliated entities and companies;
- 22.22 Terms of Credit means the terms upon which the Buyer is entitled to purchase Goods on credit, pursuant to a successful application to the Seller for credit; and
- 22.23 Warranty Document means any document provided with the Goods in which the Seller gives an express warranty in relation to the Goods.
If you have any queries about our Terms and Conditions, or if you would like a printed copy of them, please contact our Accounts Department on 1800 810 139.