TERMS OF TRADE
These are the entire Terms of Trade of all goods merchandise and services ('the goods') supplied by ALUMINIUM SPECIALTIES GROUP PTY. LTD. (ABN 63 001 252 259) ('the Seller') to any person, firm or company placing an order with the Seller for the purchase of any goods ('the Buyer') except as otherwise expressly agreed upon in writing between a duly authorised officer of the Seller and the Buyer, these Terms of Trade shall apply notwithstanding any provisions to the contrary which may appear on any order form or other document issued by any Customer.
1.DEFINITIONS
Unless the context requires otherwise:
'Buyer' means the buyer of Goods, or services;
'Contract' means the contract for the sale of the Goods or Services, including these terms;
'Default Event' means any of the following:
(a) The Buyer does not make a payment due to the Seller under this or any other contract;
(b) The Buyer is unable to pay its debts as they fall due;
(c) The Buyer ceases or suspends conduct of its business, or threatens to;
(d) A resolution is passed or proposed or a summons is presented to wind up The Buyer;
(e) A receiver and/or manager or other form of insolvency administrator is appointed over all or part of Buyer's assets;
(f) The Buyer makes or proposes to make any arrangement with as creditors;
(g) The Buyer commits an act of bankruptcy; or
(h) Execution is levied on any of the Buyer's assets;
'Goods' means the goods or services the Seller sells or provides to the Buyer
'Seller' means Aluminium Specialties Group Pty Ltd (A.B.N. 63 001 252 259)
'GST' means Goods and Services Tax
2.PAYMENT, CREDIT AND PRICE
2.1 The Buyer must pay for all Goods on or before the last working day of the calendar month following the month in which the Seller.
(a) Supplies the Goods; or
(b) Invoices the Buyer for the Goods, whichever comes first
2.2All sales are subject to such limits as to minimum quantity or cash value of order as the Seller fixes from time to time.
2.3 Unless agreed in writing or otherwise, the price for Goods will be Seller's list price in effect at the time of despatch or collection.
2.4 Atits discretion, the Seller may withdraw any credit or limit the amount of credit extended to the Buyer at any time.
2.5 Where applicable, the Buyer must bear any G.S.T. on the goods.
2.6 Where the total mass or length of any item supplied includes a fraction of a kilogram or metre, the Buyer will be invoiced for and must pay for that fraction as a whole kilogram or metre.
2.7 If a Default Event occurs:
(a) At its option, the Seller may withhold further deliveries of Goods and/or withdraw any credit facilities; and
(b) All amounts outstanding to the Seller by the Buyer, even if not otherwise due for payment, will become immediately payable.
3.DELIVERY
3.1 Unless otherwise agreed, the Seller will deliver the Goods to the address Buyer specifies at the cost to the Buyer set out in the Seller's current Product Data.
3.2 If specifically agreed that the Goods are sold ex Seller's store, at it's cost and risk, the Buyer must collect the Goods within the time agreed or, if no time is
agreed, within a reasonable time.
3.3 The Goodsthe Seller delivers will be taken to be delivered immediately they are unloaded from the delivery vehicle and will be unloaded at the Buyer's cost and risk.
3.4 The Buyer's representative must be present at the delivery address at the time the Goods are delivered. The representative must sign the delivery advice that the driver of the delivery vehicle presents.
3.5 The Seller's obligation to deliver shall be discharged on arrival of the goods at the Buyer's nominated delivery destination, nominated transport company, nominated agent or the address appearing on the invoice. The Buyer shall unload the goods upon delivery, provided that if the Buyer is unable or unwilling to accept physical delivery of the goods when the goods are ready for delivery, the Seller shall be entitled to charge a fee for any delay experienced or arrange for the storage of the goods at the risk and cost of the Buyer including all transportation, storage and other consequential costs. The Seller may, at its discretion, make and invoice partial deliveries and each partial delivery shall be a separate sale pursuant to these Terms of Trade.
3.6 If delivery is by instalments, each instalment will be treated as a separate contract. If the Seller fails to deliver an instalment by the estimated date or to deliver it at all, the Buyer is not entitled to terminate the contract as to any further instalments.
3.7 Subject to paragraph 3.6 the Buyer may terminate the contract if the Seller fails to deliver the Goods within 7 days after written notice from the Buyer to do so, given on or after the estimated delivery date.
3.8 If the Seller fails to deliver any Goods to the Buyer on time or at all, the Seller's only obligation is to refund to the Buyer any amount received from the Buyer for the goods not delivered. The Seller will not be liable for any costs, damage or other loss the Buyer or any other party suffers arising directly or indirectly from the Seller's failure to deliver the Goods on time or at all, whether or not due to the Seller's or its agent's negligence.
4.PROPERTY AND RISK
Notwithstanding delivery of the goods or their installation, property in any given goods shall remain with the Seller until the Buyer has paid and discharged any and all other indebtedness to the Seller on any account whatsoever, including all applicable GST and other taxes, levies and duties. Any payment made by or on behalf of a Buyer which is later avoided by the application of any Statutory Provision shall be deemed not to discharge the Buyer's indebtedness and, in such an event the parties are to be restored to rights which each respectively would have had if the payment had not been made.
4.1 The risk in the goods shall pass to the Buyer upon delivery to the Buyer or his agent or to a transport company nominated by the Buyer.
4.2 The Buyer acknowledges that it is in possession of the goods solely as a bailee for the Seller until payment as defined in clause 2 has been made in full to the Seller and until such payment:
(a) The Buyer shall be fully responsible for any loss or damage to the goods whatsoever and howsoever caused following delivery; and
(b) The Buyer shall store the goods separately from its own goods and those of any other party and in a manner which clearly identifies the goods, whether as separate chattels or as components, as the property of the Seller.
(c) The Buyer shall maintain records of goods owned by the Seller identifying them as the Seller’s property, of the persons to whom the goods are sold or disposed to and of the payments made by such persons for such goods. The Buyer shall allow the Seller to inspect these records and the goods themselves on request.
4.3 The Buyer hereby irrevocably grants to the Seller, its agents and servants, an unrestricted right and licence, without notice to enter premises occupied by the Buyer to identify and remove any of the goods the property of the Seller in accordance with these Terms of Trade, without in any way being liable to the Buyer or any person claiming through the Buyer.The Seller shall have the right to sell or dispose of any such goods removed or otherwise in its sole discretion and shall not be liable for any loss occasioned thereby.
4.4 The Seller licenses the Buyer to install the goods.If the goods are affixed to other materials, the totality thereof shall be the sole and exclusive property of the Seller until payment as defined in clause 2 has been made in full to the Seller unless the other materials or part thereof are or is the property of a party or parties other than the Buyer in which case the totality thereof shall be deemed to be owned as tenants in common with such other party or parties in shares corresponding to the respective amounts paid or payable by the Buyer in respect of such other party or parties.
4.5 The Buyer shall be at liberty to agree to sell the goods (independently or affixed to other materials) subject to the condition that until payment has been made in accordance with clause 2, the Buyer shall sell as an agent and bailee for the Seller and that the entire proceeds from the sale thereof shall be held in a separate account on trust for the Seller.
4.6 The right to on-sell, deal or otherwise dispose of the goods in the normal course of trade may be revoked at any time by the Seller and shall automatically cease if a Receiver is appointed over any of the assets on the undertaking of the Buyer or if a winding up order is made against the Buyer or if the Buyer goes into voluntary liquidation (otherwise than for the purpose of reconstruction or amalgamation) or administration or calls a meeting of, or makes any arrangement or composition with, creditors or commits any act of bankruptcy or where the Buyer is in default of any of its obligations to the Seller.
5.TOLERANCES
5.1 Unless otherwise stated on the quotation or product drawing, the Goods will be supplied within the tolerances as to quantity, weight, dimensions, gauge, chemical composition, physical properties, finish, shearing and degree of flatness specified:
(a) By the Aluminium Development Council of Australia Limited; and
(b) In the Seller's published Product Data current at the date of contract (and if none are specified, those tolerances normally regarded as being commercially acceptable)
6.WARRANTY AND LIABILITY
6.1 The Seller warrants:
(a) That the Goods will be free from defects in material and workmanship except such defects as are normally regarded as being commercially acceptable; and
(b) Subject to paragraph 5, that the goods will conform to the description shown on the Seller's invoice and to the Seller's published Product Data current at the date of contract.
6.2 Except as set out in Paragraph 6.1 and 6.3 theSeller;
(a) Excludes all conditions and warranties in relation to the Goods whether imposed or implied by statute or otherwise; and
(b) Will not be liable for any loss, damage or injury including loss of profits and consequential loss, arising from the condition supply or use of the Goods, or out of the Seller's breach or performance of the contract, whether or not caused by the Seller's negligence.
6.3 The Contract includes terms implied by any statute which cannot be lawfully excluded including those implied by Division 2 of the Trade Practices Act and, if applicable, the Fair Trading Act (WA) and the Sale of Goods Act (NSW). However, in relation to the supply of goods or services which are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Seller's liability for breach of those terms (other than section 69 of the Trade Practices Act) will be limited, at its option, to any one or more of:
(a) In the case of goods, the replacement, repair or payment of the cost of replacement or repair of the goods; and
(b) In the case of services, supplying the services again or payment of the cost of having the services supplied again
6.4 The Buyer acknowledges that it has exercised its independent skill and judgement in acquiring the Goods and has not relied on any advice or representation by the Seller or any descriptions, illustrations or specifications contained in any document produced by the Seller, which have not been stated expressly in these Terms.
6.5 The Buyer will be taken to have waived any claim that they may have against the Seller unless:
(a) The buyer gives the Seller written notice of the claim within 7 days after delivery of the Goods: and
(b) The Seller is given a reasonable opportunity to investigate the claim.
6.6 Regardless of anything else in the contract, the Seller will not be liable to the Buyer for the Seller's failure to comply with the contract due to any cause beyond the Seller's reasonable control the Seller's obligations affected by this cause are suspended while the cause continues to hinder or prevent the Seller's performance.
6.7 The Buyer will be liable to the Seller if the Buyer wrongfully terminates this contract or refuses to accept all or part of the Goods. If the Goods have been made specially for the Buyer, or are in the process of being made, the Buyer must pay to the Seller as liquidated damages the full contract price of the Goods and any costs incurred by the Seller less the current scrap value of the Goods as determined by the Seller.
7.STOCKING
7.1 If the Buyer does not request delivery of the Goods within 60 days of Goods becoming available for delivery, at its option, the Seller may:
(a) Deliver the Goods to the Buyer, in which case the delivery will be taken to be a delivery pursuant to the contract: or
(b) Treat the buyer as having cancelled the contract and invoice the Buyer for an amount determined in accordance with paragraph 6.7.
7.2 The Buyer is aware that while aluminium products will not rust, moisture trapped between articles when stored may lead to staining or soiling which is not easily removed.
7.3 The Seller will not be liable for any loss or damage the Buyer sustains arising out of anything referred to in this paragraph 7 and will not be required to remove any stains or soiling.
8.VARIATIONS
8.1 The Seller will not accept alterations to orders which are in production or completed.
8.2 If The Buyer cancels all or part of an order:
(a) Before the Seller has started producing the goods and/or tooling, the Buyer must pay the Seller as liquidated damages an amount equal to 10% of the price of the cancelled goods and/or tooling; or
(b) After the Seller has started producing the goods and/or tooling, the Buyer must pay to the Seller as liquidated damages the full price of the goods and/or tooling cancelled, less the current scrap value of the goods as determined by the Seller.
9.DIES AND OTHER EQUIPMENT
9.1 The Buyer must bear the cost of tooling/die development in accordance with the Seller's charges in effect at the time of manufacture. Tooling, dies and other equipment remain the Seller's property and will not be released to Buyer. Any amount Buyer pays in relation to them will be treated as a charge for their use.
9.2 Any order the Buyer places which requires using tools, dies or other equipment which have been scrapped will be treated as a new request. The Buyer must pay for any tools, dies or other equipment made to supply that order at the Seller's then current charges.
10.PATENTS AND DESIGNS
10.1 The Buyer must indemnify the Seller against all damages, losses and expenses which the Seller incurs arising out of any claim made against the Buyer or the Seller that the Goods, their method of manufacture or their design infringe any industrial or intellectual property rights.
10.2 Paragraph 10.1 does not apply in relation to Goods described as standard products in the Seller's published Product Data.
11.THIRD PARTIES SERVICES SELLER PROCURES AT THE BUYER'S REQUEST
If at the Buyer's request the Seller arranges for any goods or services to be provided by a third party in relation to a contract:
(a) The Buyer must indemnify and keep indemnified the Seller respect of any claims, actions, suits, demands, orders for costs or damages relating to or arising out of the arrangement; and
(b) The Goods and or services the subject of the contract between the Buyer and the Seller will be taken to be delivered by the Seller when the Seller delivers them to the third party.
12.FORCE MAJEURE
The Seller shall not be liable for any failure or delay in supply or delivery the goods where such failure or delay is wholly or partly due to any cause or circumstance whatsoever outside the reasonable control of the Seller including, but not limited to, war, strikes, lockouts, industrial disputes or unrest, government restrictions or intervention, transport delays, fire, act of God, breakdown of plant, shortage of supplies or labour, storm or tempest, theft, vandalism, riots, civil commotions or accidents of any kind.
13.GOVERNING LAW
The Buyer agrees that these Terms of Trade shall be construed according to the laws of the State or Territory as the Seller may in its sole discretion determine. Proceedings by either party may be instituted and/or continued in such State or Territory as the Seller may in its sole discretion determine. Failing such determination the Buyer consents to any proceedings being instituted and heard by any appropriate Court sitting in the State of New South Wales applying the laws of the State of New South Wales.
14.SERVICE OF DOCUMENTS
The Buyer agrees that service of any notices or Court documents may be effected by forwarding same by pre-paid post or facsimile to the last known address of the Buyer.
15.STATEMENT OF DEBT
A certificate signed by a Director, Secretary, Financial Controller or Credit Manager of the Seller shall be prima facie evidence of the amount of indebtedness of the Buyer to the Seller at that time.
16.MISCELLANEOUS
16.1 The contract is not a sale by sample, even if a sample was inspected by the Buyer or exhibited.
16.2 The Seller's waiver of any provision, or breach of any provision, of the contract must not be construed as a waiver of any other provision, or a breach of any other provisions, or subsequent breach of the same or any other provision of the contract.
16.3 Where this contract conflicts with anything set out in the Seller's current published Product Data as the date of contract, the product data terms prevail to the extent of the conflict.
16.4 The seller shall not be liable to accept any returned goods, but may in it’s absolute discretion accept the return of goods, provided that such goods shall only be accepted for return with the prior written approval of a duly authorised representative of the seller. Goods returned for credit pursuant to this clause will be the subject of a re-stocking fee as determined by the seller. Return freight and other expenses will be paid for by the Buyer, and no return of special order goods will be accepted.