Terms and Conditions

1. General

1.1 These terms and conditions (as may be amended by us from time to time) (‘Terms’) set out the entire agreement between us and you in relation to the supply of Deliverables.

1.2 In these terms and conditions:

1. ‘we’, ‘us’ or ‘our’ mean and refer to Welling & Crossley Pty Ltd ABN 61 005 690 273;
2. ‘you’ or ‘your’ means and refer to the purchaser or intending purchaser of the Deliverables; and
3. ‘Deliverables’ means any goods, materials, equipment, parts, labour and/or services to be supplied by us to you pursuant to an order that you place and we accept under these terms and conditions, and ”Deliverable” means any one of them.

1.3 These Terms apply to the sale or supply of any Deliverables by us to you both now and in the future, and supersede and exclude all previous discussions, representations, and terms or conditions of dealing between us and you. Unless otherwise specifically agreed to by us in writing, these Terms are the only contractual terms binding on us in respect of the Deliverables, and override any terms contained in any purchase order or any other document issued by you or correspondence or documents passing between you and us.

2. Orders

Each order by you is subject to acceptance or rejection by us, and is not binding on us prior to our written acceptance or performance of it (whichever occurs first).

3. Price

We reserve the right:

4. at any time prior to invoicing you for a Deliverable, to increase the price quoted to take account of increases in the cost of materials, labour or delivery due to factors beyond our reasonable control; and
5. at any time, and without liability on our part, to correct any errors or omissions in any offer, quotation, invoice or other documentation issued by us.

4. Taxes and Other Charges

Unless expressly stated in writing by us, prices quoted or agreed do not include:

1. any tax (including any Goods and Services Tax within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 (Cth)), or any duty or impost levied in respect of any Deliverable that we have not expressly allowed for in calculating prices;
2. any delivery charges (the minimum being $20.00) or insurances charge associated with delivery of the Deliverables; or
3. any fees charged by our bank that are reasonably related to the operation and maintenance of any account used by us in providing you credit.

These additional amounts will also be payable by you.

5. Delivery

5.1 ”Delivery” will be deemed to occur on the earlier of:

1. in the case of any Deliverable being a service, on our providing that service, and without the need for acceptance of that service by you; and
2. in the case of any other Deliverable, the earlier of:
   1. our leaving or attempting to leave that Deliverable at a place nominated by you, whether or not any person is present to accept receipt of the Deliverables; or
   2. 7 days after we notify you, or a person ostensibly acting for you, that the Deliverable is available for collection or delivery.

5.2 We will not be obliged to obtain a signed receipt or other acknowledgment of Delivery. However, if a signed receipt or other acknowledgment of delivery is obtained from a person on Delivery, to the extent permitted by law, such signed receipt or other acknowledgment shall be conclusive evidence of Delivery, the quantity of the Deliverables delivered, the lack of defects in the Deliverables, and compliance in all other respects with your order.

5.3 Any time quoted for delivery is an estimate only and we will not be liable for any failure to Deliver, or delay in Delivering, any Deliverable.

5.4 Subject to clause 5.2, you will be deemed to have accepted the Deliverables free of defects or other non conformity with your order, unless we receive a substantiated written claim as to such defect or other non conformity within 7 days of Delivery.

6. Bank Guarantee or other Security

6.1 We reserve the right at any time to require you to provide us with:

1. payment in full on acceptance of an order, or prior to Delivery;
2. one or more unconditional bank guarantees in our favour, drawn on an Australian bank and on terms acceptable to us, to secure your obligations under these Terms or any order; and/or
3. further security in a form and for an amount that are acceptable to us.

In that event your compliance with such a requirement is a condition precedent to our performing any order or supplying any Deliverable, and we may suspend the performance of any order, or the provision of any Delivery, until you do so.

6.2 Any bank guarantee you provide to us is provided as security for any amount payable to us pursuant to these Terms or any order, and we may claim under that bank guarantee without prejudice to any other right or remedy that we may have.

6.3 If we make a claim under a bank guarantee provided pursuant to these Terms, you must, within 7 days of our doing so, reinstate the bank guarantee or provide an additional bank guarantee at least equal to the amount of the claim and any previous claim.

7. Invoices and Payment

7.1 Unless we otherwise agree in writing, we may invoice you for Deliverables at any time after Delivery, and payment in full is due within 30 days after the end of month in which the invoice is issued.

7.2 All payments must be made in Australian currency, unless we otherwise agree in writing.

7.3 If you fail to make full payment within the required time we may:

1. charge you interest on any overdue payments at the rate prescribed from time to time pursuant to section 2 of the Penalty Interest Rates Act 1983 (Vic). That interest is to be computed daily and compounded monthly until payment is made in full;
2. suspend the provision of any further Deliverables under any order; and
3. recover from you, in addition to the outstanding amount and interest, all reasonable costs incurred by us in collection of the outstanding amount including, without limitation, all reasonable legal costs (on a solicitor and own client basis), all reasonable debt collection agency costs and contingent expenses (such as debt collection agency commission).

8. Risk

Risk in the Deliverables passes to you immediately on Delivery. We will not be liable on any basis whatsoever for any loss or damage to the Deliverables occurring after Delivery.

9. Personal Property Securities Act 2009

9.1 By accepting these Terms, you acknowledge and agree that these Terms constitute a security agreement for the purposes of the PPSA and create a security interest in all of your present and after-acquired Deliverables supplied by us.

9.2 Until full payment has been made for all Deliverables, and any other sums in any way outstanding from you to us from time to time:

1. the Deliverables are inventory for the purposes of the PPSA;
2. the property in the Deliverables will not pass to you, and you hold the Deliverables as bailee for us (returning the same to us on request);
3. we retain a security interest in all Deliverables previously supplied by us to you (if any) and all Deliverables that will be supplied in the future by us to you, which are after-acquired Deliverables, during the continuance of our relationship;
4. you agree to store the Deliverables on your premises separate from your own or any other person’s goods, and in a manner which makes them readily identifiable as our Deliverables;
5. the Deliverables will nevertheless be at your risk pursuant to clause 8; and
6. we are irrevocably authorised to enter any premises where the Deliverables are kept, and to use your name and to act on your behalf, if necessary, to recover possession of the Deliverables, and any property to which the Deliverables are attached, or in which the Deliverables are incorporated.

9.3 You are only authorised to sell the Deliverables (or any portion of them) to third parties as the fiduciary agent of us provided that there will be no right to bind us to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by you for the Deliverables (or any portion of them) will be held on trust for us pursuant to the fiduciary relationship.

9.4 In the event that the Deliverables (or any portion of them) are attached, fixed, transformed or incorporated into any other goods or products produced by you (or a third party), then title in the Deliverables will remain with us until you have made payment for all Deliverables, and we will have a security interest in those goods or products, and you must hold a proportion of any payment (relevant proportion) received by you for such goods or products on trust for us, and we will have a security interest in that relevant proportion. You expressly acknowledge that the relevant proportion will be equal to the dollar value of the portion of the Deliverables incorporated or transformed and you further acknowledge that any part payment (not exceeding the relevant proportion) received by you for such goods or products is received as payment first of the relevant proportion.

9.5 You undertake to:

1. promptly and at you own cost, sign any further documents and provide any further information (such information to be complete, accurate and up-to-date in all respects) that we may reasonably require to register a financing statement, financing change statement or any other required document on the Personal Property Securities Register;
2. indemnify, and upon demand reimburse, us for all expenses incurred in registering a financing statement, financing change statement or any other required document on the Personal Property Securities Register or releasing any Deliverables registered thereby;
3. not register, or permit to be registered, a financing change statement in respect of a security interest without the prior written consent of us;
4. give us at least 14 days prior written notice of any proposed change in your name or any other change in your details; and
5. immediately advise us of any material change in your business practices of selling the Deliverables that would result in a change in the nature of proceeds derived from such sales.