TERMS AND CONDITIONS
“Terms & Conditions” means the terms and conditions/terms of trade set out in this document.
“Supplier” means Pressure Welding Australia (PWA).
“Customer” means the customer specified in an application for credit, or if no application or credit terms has been given, the person placing the Order, or on whose behalf the Order is placed, with PWA.
“Quote” means any quotation, estimate or pricing given by PWA.
“Amount Payable” means all amounts payable by the Customer to PWA at any given time in connection with the Goods or the Contract (including, but not limited to, any invoiced amount, interest, fees, costs or expenses).
“Contract” means the Terms and Conditions entered into by the Customer with PWA for any type of order.
“Goods” means any goods, products, services or materials supplied or to be supplied by PWA.
“Order” is an order or offer to purchase, which is defined in clause
“C.O.D” means Cash On Delivery.
“PPSA” means Personal Property Security Act, 2009.
“PMSI” has the meaning given to s.14 of the PPSA as amended from time to time.
“Security Interest”, “attached”, “attachment”, “perfected”, “accession”, “comingled” shall have the meanings given to them by the PPSA.
- ACKNOWLEDGEMENT AND ACCEPTANCE OF TERMS AND CONDITIONS
The Contract sets out the entire agreement and understanding between PWA and Customer in respect of the relevant Products and supersedes all prior agreements, understandings, representations and warranties (whether express or implied). PWA is not bound by any terms or conditions in any document issued by the Customer.
The Customer declares that the information provided by it in support of or in connection with the Contract is true and correct and not misleading.
The Customer agrees to be bound solely by the Contract and further agrees that any terms or conditions of purchase that may be incorporated in any order, acceptance of quotation or other document issued by the Customer shall have no legal force or effect. The Customer accepts these Terms and Conditions by placing an order for Products with PWA.
These Terms and Conditions will be deemed to be received if:
- If given by email, on being sent, provided they are sent to the email address of an officer or employee of the Customer responsible for placing or administering orders for Goods and no “out of office” or other automated reply is received indicating that the message has not been or will not be received or read by the intended recipient.
- If sent by post.
- If given a hardcopy in person.
The Customer must notify PWA in writing if there is any change in the shareholding or ownership of the Customer.
- QUOTATIONS AND ORDERS
- A quotation or pricing given by PWA shall remain valid for 30 days from the quotation date.
- No contractual relationship will arise prior to the Customers order being accepted by PWA.
- All prices quoted exclude GST unless otherwise stated.
- An Order or an offer to purchase can be made in writing or verbally.
- An Order will be accepted when the Customer submits a purchase order or when a 15% deposit of the quoted price is paid. PWA will state on the Quote which option the Customer must provide.
- The Terms and Conditions apply to every Order and Invoice.
No order may be cancelled after acceptance by PWA without their consent. The Customer indemnifies WA in respect of all direct and indirect costs, expenses and losses incurred as a result of the cancellation of an order.
Except as required by law, PWA will be under no obligation to accept Goods returned for any reason.
PWA will make all reasonable efforts to have the Goods delivered to the Customer as agreed between both parties (or if there is no specific agreement, then at the Suppliers reasonable discretion). PWA may separately invoice the customer for payment for each delivery instalment.
Where a third party has been used for freight/delivery, PWA shall not be liable for:
- any failure to deliver or delay in delivery for any reason;
- any damage or loss due to unloading or packaging;
PWA shall not be liable for, except to the extent that such damage was caused by the negligent act or omission of PWA, damage to property caused upon to deliver the Goods.
- PAYMENT AND OTHER OBLIGATIONS
PWA may offer, at its own discretion, the following credit terms to some customers:
- COD: Cash On Delivery
- 14 Day Account – Amount Payable due within 14 days from date of invoice;
- 30 Day Account – Amount Payable due within 30 days from date of invoice.
The Customer must pay PWA’s price for the goods and services (the “Contract Price”) as provided in the Contact (Credit application) / on the Invoice. If the Contract does not set out a date for payment, invoices submitted by PWA must be paid within fourteen (14) days after the date of the invoice issued by PWA. PWA may, in its absolute discretion, request payment for any goods or services (or part thereof) in advance or may require (at any time) progress payments towards the Contract Price. If progress payments are not made when due, or a request for advance payment is not complied with or goods sold invoices go 14 days overdue, PWA may stop work on the Contract or decline to release goods or materials until payment of all invoices is made in full (including if such invoice has remained unpaid for less than 14 days) or until the time when PWA ceases work.
Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Supplier’s ownership of rights in respect of the Goods shall continue.
The Customer agrees that any legal costs incurred by PWA (on a solicitor and own client basis) in the recovery of any monies due by the Customer shall be recoverable in full from the Customer.
If PWA’s invoice is not paid by fourteen (14) days after the due date, the Purchaser shall pay interest to PWA on any monies outstanding on and from the due date until the actual date of payment at the rate of 8% per annum.
If PWA’s invoice is not paid by fourteen (14) days after the due date, or if the Customer otherwise breaches the terms and conditions, the Customer must pay all of PWA’s losses, expenses and costs that relate to the failure to pay by the due date or the breach of terms and conditions.
All credit claims and requests for return of products must be addressed in writing to the PWA.
Claims by the Customer in respect of Products which have not been supplied in accordance with the relevant Contract will only be considered by PWA if:
- The claim is made in writing within ten (10) business days of the date of delivery of the Products;
- Representatives of PWA have been afforded a reasonable opportunity to inspect the Products; and
- The Products are subsequently returned to PWA as directed by PWA with respect to the Return For Credit process.
Restocking fee may be charged for returns. Items must be returned in good and saleable condition to the address specified on the Return for Credit Authorisation. Any items received soiled or damaged or deemed unsellable by PWA will be returned to the sender (freight-forward) via PWA’s preferred freight carrier.
Examination of the Products shall be made by or on behalf of the Customer, and unless within 10 business days of delivery of the Products, the Customer gives written notice that the Products do not comply with the applicable Contract, the Products shall be deemed to have been in all respects supplied in accordance with the relevant Contract, and the Customer shall be bound to accept and pay for the Products accordingly.
- A Customer will be in Default if:
- Payment for the Goods has not been received by PWA by fourteen (14) days after the due date;
- Being a body corporate it becomes an externally-administered body corporate or has an application for winding up filed against it;
- In the case of the Customer being an individual, it commits an act of bankruptcy or becomes an insolvent under administration;
- If the Customer is in Default;
- The Supplier may refuse to supply and Goods to the Customer on credit or at all; and /or
- The Supplier may claim the return of any Goods in the Customer’s possession where title has not passed to the Customer or exercise any other right or remedy available to it under the Contract, the PPSA or any other applicable law, including to enforce the security interests created by the Contract; and/or
- The Supplier may, by notice to the Customer, declare all monies owing by the Customer to PWA, on any account immediately due and payable (including the Amount Payable).
- Costs incurred by the Supplier to recover any Amounts Payable owed by the Customer, may be invoiced to the Customer.
- Default interest may be charged or invoiced to the Customer by PWA on any overdue amount at a rate equivalent to 8% p.a.
- If the Customer is in Default;
Except as expressly provided to the contrary in writing in the Tax Invoice:
- PWA gives warranty in respect of the Products incidental to workmanship; and
- All conditions and warranties implied at law (whether by statute, common law, equity or otherwise) are (to the extent permitted by law) expressly excluded from the Contract.
If any statute implies any term, condition or warranty into a Contract, and that statute prohibits provisions in a contract excluding or modifying the application of, exercise of, or liability under, such a term, condition or warranty, then that term, condition or warranty will be taken to be included in the Contract. However, the liability of PWA for any breach of such a term, condition or warranty will be limited, if permitted by the statute, at the option of PWA, to any one or more of the following:
- If the breach relates to goods:
- the replacement of the goods, the supply of equivalent goods or the repair of the goods; or
- to the extent required by the relevant statute, the payment of the cost of replacing the goods or of acquiring equivalent goods or the cost of having the goods repaired; and
- if the breach relates to services:
- the supplying of the services again; or
- to the extent required by the relevant statute, the payment of the cost of having the services supplied again.
PWA will not be responsible for any failure to supply Products on the date agreed between the parties and the Customer is not entitled to cancel any order as a result of that failure.
To the extent permitted by law, and except as otherwise expressly agreed in writing as part of a Contract, PWA will not be liable for any personal injury, incidental damages, consequential losses, loss of profit, costs of business interruption, loss of opportunities or any other loss, damage, cost, expense or liability whatsoever arising from any use of, or incidental to, the Products or their use, or arising out of PWA ‘s negligence or breach of a Contract.
The length of warranty given will be stated on the contract, quotation or invoice.
- THE COMMONWEALTH COMPETITION AND CONSUMER ACT 2010 AND THE STATE FAIR TRADING ACTS
Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Commonwealth Competition and Consumer Act 2010 or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
- INTELLECTUAL PROPERTY
All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights and other information or industrial or intellectual property disclosed or otherwise provided to the Customer by PWA or otherwise subsisting in the Products and all rights therein (collectively Intellectual Property) will remain the property of PWA and will be kept confidential by the Customer. The Customer shall have no claim to, nor ownership interest in, any Intellectual Property. The Customer acknowledges that no license or rights of any sort are granted to the Customer in respect of any Intellectual Property, other than the limited right to use Products purchased from PWA for the purpose they are supplied by PWA.
The Customer warrants that any Products manufactured, constructed or supplied by PWA which are based in whole or in part upon designs, drawings, specifications or information supplied to PWA by or on behalf of the Customer shall not infringe any letters, patents or registered designs or any other industrial or intellectual property rights of any person.
- CONFIDENTIAL INFORMATION
All information furnished or made available by PWA to the Customer in connection with the subject matter of these Terms and Conditions or the supply of Products shall be held in the strictest confidence by the Customer. The Customer agrees not to use such information or disclose such information to others without PWA’s prior written consent. The obligations in this paragraph will not apply to any information which:
- at the time of disclosure was or thereafter becomes, generally available to the public by publication or otherwise through no breach by the Customer of any obligation herein;
- the Customer can show by written records was in the Customer’s possession prior to disclosure by PWA; or
- is legally made available to the Customer by or through a third party having no direct or indirect confidentiality obligation to PWA with respect to such information.
- SECURITY INTEREST
13.1 The Supplier agrees that these Terms and Conditions create a PMSI in the goods (and their proceeds) supplied presently and in the future by the Supplier to the Customer.
13.2 The Customer agrees to sign all documents required to register the PMSI granted by the Customer under these Terms and Conditions and to ensure that the Supplier receives a perfected security interest in the goods under the PPSA.
13.3 The Customer will pay all the Supplier’s expenses and legal costs in connection with the registration of the Supplier’s security interest and all other costs associated with the protection and enforcement of the Supplier’s security interest created in these Terms and Conditions or by undertaking an audit under the provisions of the PPSA, or the repossession of the goods the subject of these Terms and Conditions.
13.4 The PMSI does not lose priority as a result of its renewal, refinance, consolidation or restructure of the subject matter of the Terms and Conditions and any purchase money obligations.
13.5 Until ownership of the goods passes to the Customer, the Customer waives its right under the following provisions of Chapter 4 of the PPSA:
(a) The right to receive a Notice of Intention of Removal of an accession (s.95);
(b) The right to receive a Notice that the Supplier decides to enforce its security interest in accordance with land law (s.118);
(c) The right to receive a Notice on Enforcement of Security in Liquid Assets (s.120);
(d) The right to receive a Notice of Enforcement Action against Liquid Assets (s.121(4));
(e) The right to receive a Notice to Seize Collateral (s.123);
(f) The right to receive a Notice on Enforcement of Security Interests in Liquid Assets (s.125);
(g) The right to receive a Notice of Disposal of Goods by the Supplier purchasing the goods (s.129);
(h) The right to receive a Notice to Dispose of Goods (s.130);
(i) The right to receive a Statement of Account following disposal of Goods (s.132(2));
(j) The right to receive a Statement of Account if no disposal of goods for each six month period (s.132(4));
(k) The right to receive notice of any proposal of the Supplier to retain goods (s.135(2));
(l) The right to object to any proposal of the Supplier to either retain or dispose of goods (s.137(2));
(m) The right to redeem goods (s.142);
(n) The right to reinstate the Security Agreement (s.143);
(o) The right to receive a Notice of any Verification Statement (s.157(1), s.157(3)).
13.6 The Customer further agrees that where the Supplier has rights in addition to those under Chapter 4 of the PPSA those rights will continue.
13.7 The Customer’s rights to possession of Goods still owned by the Supplier under these Terms and Conditions shall cease if the Customer, being an individual, commits an act of bankruptcy or being a company has a receiver, manager, administrator or controller appointed or any proceedings are instituted for winding up, or the Customer enters into a Deed of Company Arrangement.
13.8 The Customer expressly and irrevocably agrees that the Supplier is entitled to enter into any premises where the goods supplied by the Supplier are located to repossess, remove and sell such goods. The Customer shall not object to the Supplier or its agent entering into any premises for the purposes of this clause and agrees to indemnify and keep the Supplier indemnified in respect of any claims, actions and costs that may arise against the Supplier in relation to the removal, repossession and sale of goods pursuant to these Terms and Conditions, including any claims brought by any third party.
13.9 The Customer agrees that repossession and retention of the goods pursuant to the PPSA will only satisfy so much money which may become payable to the Supplier by the Customer as is equivalent to the Supplier’s estimation of the market value of the goods as it is at the date of repossession and the repossession and retention would immediately extinguish any rights for interest the Supplier has on the value of goods recovered.
13.10 Until ownership of goods passes to the Customer, the Customer must not give a Supplier a written demand or allow any other person to give the Supplier a written demand requiring the Supplier to register a Financing Chain Statement under the PPSA or enter into or allow any other person to enter into the Personal Property Security Register a Financing Chain Statement under the PPSA.
13.11 The Customer agrees not to change the Customer’s name or undertake any changes to any documents that the Supplier has registered, requires to be registered, or is capable of being registered without prior written consent to the Supplier.
13.12 Notwithstanding anything to the contrary contained herein or any other rights which the Supplier may have howsoever:
(a) Where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to the Supplier or the Supplier’s nominee to secure all amounts and other monetary obligations payable under the terms and conditions. The Customer and/or the Guarantor acknowledge and agree that the Supplier (or the Supplier’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be released once all payments and other monetary obligations payable hereunder have been met.
(b) Should the Supplier elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own Customer basis.
(c) To give effect to the provisions of clause [14.12(a) and (b)] inclusive hereof the Customer and/or the Guarantor (if any) do hereby irrevocably nominate constitute and appoint the Supplier or the Supplier’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to execute mortgages and charges (whether registrable or not) including such other terms and conditions as the Supplier and/or the Suppliers nominee shall think fit in his/her/its/their absolute discretion against the joint and/or several interest of the Customer and/or the Guarantor in any land, realty or asset in favour of the Supplier and in the Customer’s and/or Guarantor’s name as may be necessary to secure the said Customer’s and/or Guarantor’s obligations and indebtedness to the Supplier and further to do and perform all necessary and other acts including instituting any necessary legal proceedings, and further to execute all or any documents in the Supplier’s absolute discretion which may be necessary or advantageous to give effect to the provisions of this clause
- UNPAID SUPPLIERS RIGHTS TO DISPOST OF GOODS
In the event that:
(a) the Supplier retains possession or control of the Goods; and
(b) payment of the Price is due to the Supplier; and
(c) the Supplier has made demand in writing of the Customer for payment of the Price in terms of this contract; and
(d) the Supplier has not received the Price of the Goods,
then, whether the property in the Goods has passed to the Customer or has remained with the Supplier, the Supplier may dispose of the Goods and may claim from the Customer the loss to the Supplier on such disposal.
- LIEN & STOPPAGE IN TRANSIT
Where the Supplier has not received or been tendered the whole of the price, or the payment has been dishonoured, the Supplier shall have:
(a) a lien on the goods;
(b) the right to retain them for the price while the Supplier is in possession of them;
(c) a right of stopping the goods in transit whether or not delivery has been made or ownership has passed; and
(d) a right of resale,
(e) the foregoing right of disposal,
provided that the lien of the Supplier shall continue despite the commencement of proceedings or judgement for the price having been obtained.
16.1 If any provision of these terms and conditions shall be invalid, void or illegal or unenforceable the validity existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.2 All Services/Goods supplied by the Supplier are subject to the laws of New South Wales and the Supplier takes no responsibility for changes in the law which affect the Services/Goods supplied.
16.3 The Supplier shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Supplier of these terms and conditions.
16.4 The Customer shall not set off against the Price amounts due from the Supplier.
16.5 The Supplier may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
16.6 The Supplier reserves the right to review these terms and conditions at any time and from time to time. If, following any such review, there is to be any change in such terms and conditions, that change will take effect from the date on which the Supplier notifies the Customer of such change.
16.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.