Terms and Conditions
All goods supplied to Purchaser by Supplier under a supply contract are subject to the following terms and conditions.
These Terms and Conditions cannot be modified in any way except with the written consent of the Supplier. These Terms and Conditions take priority over any other Terms and Conditions printed in any document of Purchaser, and any such Terms and Conditions have no effect on a supply contract.
Purchaser Submits to the non-exclusive jurisdiction of the Courts of New South Wales, in relation to the governing and interpretation of these Terms and Conditions in accordance with the laws of the state of Australia, with which the supply contract has the closest relevance.
For the purposes of these Terms and conditions, unless the context otherwise necessarily requires:
“Supplier” means Olympic Fencing (NSW) Pty Ltd ACN 065 360 303 of 16 Laverick Ave, Tomago NSW 2322 and its successors, administrators and assigns; “Purchaser” means any person, firm or company including his successors administrators and assigns who or which has requested the supply of goods by Supplier; “Act” means the Act or Acts resulting from the enactment of A New Tax System (Goods and Services Tax) Bill 1998 or any Bill substituted for, amending or replacing that Bill or otherwise providing for a broad based consumption tax and any related tax imposition Bill (whether imposing tax as a duty of customs, excise or otherwise) and includes any legislation which is enacted to validate, recapture or recoup the tax impose by any such Acts; “Additional charges” means charges in addition to the price of goods which may be made by Supplier pursuant to clause 5; “Goods” includes any services associated with the supply and/or installation of goods; “GST” means any tax imposed by or through the Act and in the context of a supply means the amount of tax on that supply whether or not that tax is actually payable to the Commission of Taxation once input tax credits are taken into account and whether that tax (if not offset by input tax credits) would be payable by the supplier or by the Representative; “GST Group” means a group of companies that is approved as a GST Group by the Commissioner of Taxation in accordance with the Act; “Job Site” means a site other than Supplier’s premises at which Purchaser requires delivery of goods under a supply contract; “Related Corporation” in relation to supplier or Purchaser means a corporation which is a related body corporate of Supplier or Purchaser (as the case may require) within the meaning of sections 9 and 50 of the Corporations Law; “Representative” shall mean (a) the Representative Member of a GST Group which includes the Supplier; or (b) the joint venture operator in relation to a GST joint venture in which the Supplier is a Participant; “Scheduling” means the process of determining from a working documentation al necessary information about the foods required under a supply contract to enable the goods to be manufactured, labeled and delivered; “Supplier’s Premises” means any place from which goods supplied under a contract are made available for collection by Purchaser; “Supply” means any supply within the meaning of the Act; “Supply Contract” means any agreement, however arising, for the supply of goods by Supplier to Purchaser and includes the Terms and Conditions, and all working documentation relevant to the supply; “Variation” means any variation whatsoever to a supply contract including but not limited to amendments to working documentation, scheduling and re-scheduling, loading requirements, delivery times and job sites; “Working Documentation” means architectural drawings, site drawing structural drawing and construction drawing, specifications and reinforcement schedules or such other similar document which are provided by or on behalf of Purchaser to Supplier.
3. Price and Payment
3.1 All goods are sold at Supplier’s fixed price at the time that the order is placed for the supply of the goods.
3.2 To allow for any increase in the cost of materials, goods may be subject to change without prior notice.
3.3 If Supplier has agreed to extend credit, and this document is signed by Supplier, then the Purchaser is required to pay for the goods in full upon placement of the order.
3.4 The Supplier shall be entitled to retrieve, in relation to any supply (for GST purposes) made by the Supplier under or in connection with a supply contract (including a supply relating to the enforcement of any right to be pledged against or other right arising in relation to the supply contract), any GST on such supply except to the extent that the price (if any) for the relevant supply expressly includes any of the GST. Any GST recoverable by the Supplier shall be recoverable at the same time (including recovery of interest) as any other payment for the supply.
All overdue amounts owed to Supplier by Purchaser will attract an interest rate of 21% per annum, which will be calculated daily and paid on demand. All costs and expenses related to the collection of overdue amounts, including but no limited to legal fees and internal costs and expenses of Supplier, are to be paid by Purchaser as a debt due and payable under the supply contract. Purchaser payments shall be applied first to these costs and expenses, secondly to the accumulated interest and thirdly to the overdue amounts.
3.6 Purchaser is not entitled to withhold any money owing to Supplier, except where Supplier defaults or allegedly defaults the supply Terms and Conditions, or the supply of allegedly faulty goods.
4. Client Orders
4.1 Supplier may under its own discretion refuse to supply goods under a contract where:
(a) goods are temporarily or permanently unavailable for any reason without exclusions
(b) credit limits have been exceeded or terms cannot be agreed upon.
(c) Purchaser or any related corporation has failed to disburse supplier, whether under a differing supply contract or the same.
4.2 Every order by Purchaser for the supply of goods shall;
(a) is to be signed by an authorized person, if the order is in writing;
(b) specify the quantity and type of goods ordered; and
(c) specify the required date of delivery.
4.3 If Supplier agrees to and signs a written variation, then Supplier has an automatic time extension, equivalent to the time delay caused by the variation.
4.4 A supply contract cannot be cancelled unless:
(a) the Supplier has given written consent;
(b) Purchaser assures Supplier against any loss sustained as a consequence of the cancellation.
All working documents are to be supplied free of charge to the Supplier. No liability is taken for the accuracy of the working documents.
5. Additional Charges and/or Variations
In addition to payment of the price for goods, Purchaser is also responsible for:
(a) any taxes (other than income tax), which may apply to supplied goods;
(b) delivery charges for delivery to the job site
(c) where goods are not collected immediately upon delivery at Supplier’s premises, storage fees are applicable
(d) any costs sustained by Supplier resulting from attendance at a job site after the fixed time of the first three quarters of an hour, charges will be calculated at current master carrier rates
(e) any legal fees sustained by Supplier where the supply contract is breached by Purchaser
(f) costs, charges, and expenses sustained by Supplier in regard to any Variation by Purchaser
(g) all costs sustained by Supplier regarding the recovery or return of goods from Purchaser whether or not in relation to any breach of a supply contract;
(h) any costs sustained by Supplier regarding the installation of goods; and
(i) any costs relating to the testing or inspection of goods or material used in the manufacture of goods, which have been requested by Purchaser.
6. Risk and Property
6.1 Risk in goods immediately upon delivery passes to the Purchaser.
6.2 The goods do not become the property of the Purchaser until all outstanding amounts for the supply contract have been disbursed. In the case of Supplier installing the goods, property does not pass to the Purchaser until a written document of acceptance stating that the goods and installation were satisfactory, and in agreement with the supply contract.
6.3 Where goods are delivered by Supplier to Purchaser under a supply contract without payment in full, Purchaser:
(a) holds the goods on trust for Supplier until all outstanding amounts have been paid;
(b) irrevocably appoints Supplier its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of a charge or charges on favour of Supplier with respect to the goods under the Corporations Law; and
(c) must separate the goods delivered by Supplier from all other goods which are contained on the Purchaser’s property, whether being for resale, distribution, incorporation or mixing of goods to manufacture new goods.
6.4 If the Purchaser manufactures a new object from the goods, whether complete or not, or the goods have been mixed with other goods in stock or are manufactured into new goods, the Purchaser agrees that:
(a) the goods ownership immediately passes to the Supplier.
(b) until disbursement of all amounts owing to Supplier whether under the current supply contract or another contract Purchaser will hold the new goods on trust for Supplier; and
(c) if Supplier requests, store the goods in a method that obviously shows the ownership of those goods belongs to the Supplier.
6.5 To avoid doubt, the ownership of the new goods passes to Supplier at the beginning of the operation or event by which the goods are converted into, are mixed with or become part of other goods.
6.6 Notwithstanding sub-clause 10.C Purchaser may transfer, sell or dispose goods including new goods, to a third party in the ordinary course of business provided that:
(a) where Purchaser is paid by a third party in respect of goods including new goods Purchaser shall hold the whole of the proceeds of sale on trust for Supplier until all amounts owed by Purchaser to Suppler have been disbursed; or
(b) where Purchaser is not paid by a third party, Purchaser agrees to assign all Purchaser’s claims against such third party to Supplier upon Supplier giving Purchaser notice in writing to that affect and for the purpose of giving effect to such assignment Purchaser irrevocably appoints Supplier its attorney.
6.7 Sub-clauses 10.A to 10.F inclusive apply notwithstanding any agreement by Supplier to extend credit to Purchaser.
7. Delivery of Goods
7.1 Purchaser must inform the Supplier 10 working days prior to the required date of delivery, unless agreed upon in a signed document by the Supplier, delivery will be at Supplier’s premises during normal business hours.
7.2 When it has been agreed to deliver goods to a job site:
(a) Purchaser shall inform Supplier of the job site two (2) working days prior to the intended delivery date;
(b) in the opinion of the Supplier and it’s sub-contractors, delivery will be as close as safety conditions allow to the Purchaser’s job site.
(c) the unloading of goods at the job site is the duty of Purchaser at their own cost, however, Supplier reserves the right to unload goods in the absence of Purchaser and Purchaser shall assure Supplier against any resulting claims, damages, expenses or costs and;
(d) Supplier will only enter a job site on the condition that Supplier is not liable for any damage to property that may occur and on the condition that Purchaser shall indemnify Supplier against any charge or cost.
7.3 Where a delivery of goods cannot be affected, a delivery and return charge based on current master carrier rates and a storage fee will be charged to Purchaser.
The quantity, description, date and place of delivery of goods as are shown on the Supplier’s invoice or delivery docket (“the consignment note”) shall be evidence of quantity, description, date and place of delivery of the goods.
7.5 (a) Purchaser must inform Supplier of any alleged defect in goods within a 48 hour period following the delivery of goods or:
(i) it is assumed that Purchaser has received goods, without fault according to the supply contract
(ii) Purchaser shall keep Supplier indemnified from any claims, damages, or expenses resulting from the use of the goods whether or not such goods are damaged or defective.
(b) goods which are non standard sizes will not be accepted for credit.
(c) goods may be accepted for credit at the discretion of Supplier. To the extent permitted by law Supplier reserves the right to charge an administration and handling fee calculated in accordance with the adopted practice of a minimum charge of $10.00 up to a maximum of 14% of the full retail value of the goods. Freight incurred on goods returned will be debited to Purchaser’s account.
7.6 Goods are not deemed damaged or defective by the presence of rust, mill scale or rolling seams except as provided in AS3600.
7.7 If deliveries are delayed by uncontrollable circumstances, such as unavailability of raw materials, industrial action, accidents, Government regulations, force majeure or breakdown, Supplier shall accept no liability whatsoever. The supply contract will be completed within a practical time after the cause preventing delivery has expired.
8. Installation of Fencing Products
8.1 The provisions of this clause 7 are applicable if Supplier agrees to install goods.
The price of installation will be determined by Supplier and be based upon the installation of goods into formwork prepared by Purchaser.
8.3 Purchaser shall specify installation site and shall at it’s own cost provide means of access and safe working conditions for installation.
8.4 Purchaser must sign the invoice agreeing that all Working Documentation relating to the supply contract is accurate.
8.5 All costs, claims, liabilities and expenses related to the installation of goods at the installation site, are the responsibility of the Purchaser.
8.6 No credit is given to Purchaser for unused goods or materials remaining at completion of installation, these goods remain to be the property of the Supplier.
9. Warranties and Exclusions
9.1 All express or implied terms, conditions, warranties, statements, assurances and representations in relation to any goods ordered from Supplier are hereby excluded from a supply contract save for:
(a) these Terms and Conditions
(b) the conditions and warranties necessarily implied under the law of the Relevant State and the provisions of the Trade Practices Act 1974 and any statutory modification or re-enactment thereof; and
(c) Any other Terms and Conditions to which the Supplier has signed a written document Supplier agreeing to be bound to.
9.2 Any liability of Supplier which is not excluded by clause 11.1 is limited to the extent permitted by law to such one or more of the following as determined by Supplier in its absolute discretion:
(a) in regard to the supply of goods:
(i) the replacement of the goods or the supply of equivalent goods
(ii) the repair of the goods; or
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired;
(b) with respect to the supply of services:
(i) the re-supply of the services; or
(ii) the payment of the cost of having the services re-supplied.
9.3 Purchaser acknowledges that Supplier does not give or make any warranty assurance, promise or representation in respect to quality, fitness for use, suitability or merchantability of goods, except for these Terms and Conditions, and that in entering into the supply contract Purchaser has relied entirely on Purchaser’s own knowledge, skill and judgment.
9.4 Purchaser agrees that:
(a) any advice given by Supplier in regards to the use or installation of goods;
(b) any inspection or testing of goods at Purchaser’s request;
(c) any advice given by Supplier in connection with the use or installation of goods in accordance with specifications or design information provided by Purchaser to Supplier; and
(d) any advice given by Supplier where no specification or design information is provided by Purchaser in relation to the supply use or installation of goods; is only given on the condition that the Supplier assumes no obligation or liability. Purchaser further agrees that where Purchaser provides specifications or design information, the Supplier assumes no obligation or liability in respect of the supply of goods in relation to the specifications or design information provided.
9.5 A supply contract is not a sale by reference to sample unless expressly so stated.
9.6 Supplier accepts no liability, to the extent permitted by law, for loss or damage of any kind resulting from the loading or securing of goods whether in negligence or otherwise.
9.7 Purchaser warrants and represents to Supplier that all computer software, firmware and Hardware used by Purchaser (including its database and inter face functionality and attributes and programming logic) will perform calculations and generate, store and display data using correct dates (including correct 4 digit year date fields) for all intervals of time, including those that refer to the calendar year 2000 and beyond.
10. Default by the Purchaser
If: (a) The Supply contract is breached, or allegedly breached by Purchaser;
(b) Purchaser becomes or threatens to become or is in jeopardy of becoming subject to bankruptcy; or
(c) Purchaser ceases or threatens to cease management of its business in the normal manner; Supplier may with out prejudice to any other of its rights:
(d) Refuse delivery of goods, except in the circumstance where Supplier has received disbursement in full;
(e) for goods where disbursement has not been received the Supplier may repossess and re-sell any goods delivered to Purchaser; or
(f) Retain (where applicable) all moneys paid on account of goods or otherwise.
11.1 Any document addressed to Purchaser shall be deemed to be sufficiently served if:
(a) posted by ordinary pre-paid post addressed to Purchaser at Purchaser’s last known address and shall be deemed to have been received by Purchaser on the second business day following the date on which it was posted; or
(b) transmitted by facsimile transmission or electronic mail during normal business hours on a business day and shall be deemed to have been given on the business day which next follows the day of transmission.
11.2 Any Term or Condition herein whether a whole clause or part of a clause, which is invalid, unlawful, void or unenforceable, is capable of severance without affecting any other Term or Condition.
11.3 A Certificate signed by the branch manager for the time of being Supplier stating any matter or thing resulting out of a supply contract is prim facie evidence of the matters contained in such certificate and Purchaser agrees not to object to the admissibility of such a certificate in any legal proceedings.
11.4 No waiver by Supplier of any breach of the Terms and Conditions will be construed as a waiver of any subsequent breach of the same or any other Term or Condition.