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:
- ‘we’, ‘us’ or ‘our’ mean and refer to Welling & Crossley Pty Ltd ABN 61 005 690 273;
- ‘you’ or ‘your’ means and refer to the purchaser or intending purchaser of the Deliverables; and
- ‘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.
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).
We reserve the right:
- 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
- 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:
- 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;
- any delivery charges (the minimum being $20.00) or insurances charge associated with delivery of the Deliverables; or
- 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.
5.1 ”Delivery” will be deemed to occur on the earlier of:
- 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
- in the case of any other Deliverable, the earlier of:
- 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
- 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:
- payment in full on acceptance of an order, or prior to Delivery;
- 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
- 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:
- 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;
- suspend the provision of any further Deliverables under any order; and
- 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).
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:
- the Deliverables are inventory for the purposes of the PPSA;
- 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);
- 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;
- 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;
- the Deliverables will nevertheless be at your risk pursuant to clause 8; and
- 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:
- 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;
- 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;
- not register, or permit to be registered, a financing change statement in respect of a security interest without the prior written consent of us;
- give us at least 14 days prior written notice of any proposed change in your name or any other change in your details; and
- 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.
9.6 We and you agree that nothing in sections 130(1)(a) and 143 of the PPSA will apply to this security agreement.
9.7 You waive your rights as a debtor under sections 92, 93, 94, 95, 97, 118, 121, 132, 135, 137, 140 and 142 of the PPSA.
9.8 Unless otherwise agreed to in writing by us, you waive your right to receive a verification statement in accordance with section 157 of the PPSA.
9.9 Neither party may disclose information of the kind to which section 275(1) of the PPSA refers. The Buyer waives any right that the Buyer may have or, but for this clause, may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of such information, and otherwise agrees not to exercise any rights it may have under sections 275(7)(c) and (d) without the Seller’s written consent. To the extent that it is not inconsistent with this clause 9.9 constituting a confidentiality agreement for the purpose of section 275(6)(a) of the PPSA, the Seller may disclose information of the kind to which section 275(1) of the PPSA refers to the extent that the Seller is not doing so in response to a request by an interested person.
9.10 You further agree that where we have rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply.
9.11 You unconditionally ratify any actions taken by us under clauses 9.1 to 9.9. under and by virtue of the power of attorney given by you to us, and agree that this clause 9 will survive termination of this agreement or any agreement hereunder for the sale of the Deliverables.
9.12 In this clause:
- ”financing statement” has the meaning given to it by the PPSA;
- ”financing change statement” has the meaning given to it by the PPSA;
- ”PPSA” means Personal Property Securities Act 2009 (Cth);
- ”security agreement” means the security agreement under the PPSA created between us and you; and
- ”security interest” has the meaning given to it by the PPSA.
10. Return of Deliverables
10.1 You may only return Deliverables that we sell as standard stock items provided that we first agree in writing, and you comply with any terms determined solely by us relating to the return. The question of whether we sell a Deliverable as a standard stock item is a matter for us in our absolute discretion.
10.2 You must not deduct or set-off any anticipated credit from any payment that is due to us.
10.3 If we agree to accept the return of any Deliverable under clause 10.1, we will credit your account with the value of the Deliverable less an administration charge (which will be not less than 10% of the price of the Deliverables) for restocking and repacking.
11. Customer Warranties
You warrant to us that:
- you possess all necessary licences, permits or approvals to receive, handle and store the Deliverables; and
- you will comply with all laws (including all environmental and safety laws), and the conditions of any licences, permits or approvals, relating to the handling and storage of the Deliverables.
12. Party as Trustee
If you are the trustee of any trust:
- you and your successors as trustee of that trust will be liable under these Terms in your own right and as trustee of the trust;
- nothing releases you from any liability in your personal capacity;
- you warrant that at the date of these Terms, and whenever Deliverables are ordered, or any amount is payable to us:
- the trust is validly constituted and has not vested;
- all the powers and discretions conferred by the trust deed constituting the trust are capable of being validly exercised by you as trustee and have not been varied or revoked;
- you are the sole trustee of the trust, and you have the full and unfettered power under the terms of the trust deed constituting the trust to enter into, and be bound by these terms and conditions, and to order Deliverables from us on behalf of the trust;
- you have not resigned and will not resign as the trustee of the trust;
- you are agreeing to be bound by these Terms and ordering Deliverables from us as part of the due and proper administration of the trust and for the benefit of the beneficiaries of the trust;
- you have an unrestricted right of indemnity out of or lien over the trust’s assets, and that right will have priority over the right of the beneficiaries to the trust’s assets; and
- there has not been and will not be any distribution in specie or any capital distribution out of the assets of the trust.
13. Warranties and Liabilities
13.1 Subject to clause 13.2,:
- the only guarantee, warranty or condition provided in relation to any Deliverable is any express warranty that we provide; and
- we exclude all liability in relation to the Deliverable, whether in contract, tort or otherwise, including all liability for any consequential loss or damage.
13.2 Subject to clause 13.3, nothing in clause 13.1 excludes, restricts or modifies:
- the application of any consumer guarantee in the Australian Consumer law (Consumer Guarantee) or any similar provision in the law of any State or Territory that cannot be excluded, restricted or modified (Similar Provision);
- the exercise of any right conferred by an Consumer Guarantee or Similar provision; or
- our liability under and Consumer Guarantee or Similar Provision.
13.3 Where permitted and to the full extent permitted by law, our liability under any Consumer Guarantee or Similar Provision is limited, at our option, to:
- in the case of goods, the repair or replacement of those goods, the supply of equivalent goods, the payment of the cost of repairing or replacing the goods or acquiring equivalent goods; and
- in the case of services, supplying those services again, or paying the cost of having the services supplied again.
14. Containers and Pallets
14.1 We retain the right of possession of any pallets or containers used for delivering the Deliverables. You agree to indemnify us in respect of any replacing or repairing (as determined by us) any pallets or containers not returned to us in good order and condition (as determined by us) within 14 days of Delivery.
14.2 If you have paid a deposit fee in respect of a container or pallet, no part of that deposit fee is refundable by us unless you return all of our containers and pallets in accordance with clause 14.1.
15. Force Majeure
We are not liable to you for any failure to perform or delay in performing our obligations under these Terms or any order if that failure or delay is due to anything beyond our reasonable control.
15. Governing Law
16.1 These Terms shall be governed by and interpreted according to the laws of Victoria and you consent and submit to the jurisdiction of the courts of that State.
16.2 If part or all of any provision of these Terms or its application to any person or circumstance is illegal or unenforceable, that provision will be interpreted as may be necessary to ensure it is not illegal or unenforceable. If any provision or part of it cannot be interpreted in that way, the provision or part of it will be severed from these Terms and the remaining provisions continue in force.
17.1 Any failure by us to insist on strict compliance with any contract between us or any delay by us in exercising our rights under these terms and conditions will not constitute a variation or waiver or any provision of that contract or of any right available to us.
17.2 We may subcontract the production, manufacture, supply or delivery of any or all of the Deliverables without notice to you.
17.3 This document sets out our current Terms. We may amend these Terms at any time by giving you at least 14 days’ written notice to that effect.
17.4 The Deliverables are not sold by description. Any description of the Deliverables on any of our documents is given by way of identification only.
17.5 Headings are inserted for ease of reference only, and do not affect the interpretation of these terms and conditions.
17.6 Any certificate that we issue as to the amount you owe us shall, in absence of manifest error, be prima facie proof of its contents.