Terms of trade – Ausfec Limited (The Distributors)

AUSFEC LIMITED (ABN 87 002 994 774) and each of the Members of the collective group from time to time, trading as “The Distributors” of 394 Lane Cove Road, Macquarie Park NSW 2113, (individually and together, The Distributors).

     1    Definitions and interpretation

     1.1   Definitions

Additional Charge means: 

(a) Fees or charges for additional work performed at the Customer's request or reasonably required as a result of the Customer's conduct, calculated in accordance with The Distributors’ then current prices; and

(b) Expenses incurred by The Distributors, at the Customer's request or reasonably required as a result of the Customer's conduct.  

Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out or the Goods provided.

Customer means the person identified on a Purchase Order or Order as the customer and includes the Customer's agents and permitted assigns.

Goods means any goods supplied by The Distributors including those supplied in the course of providing Services.

Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trademarks, patents and registered designs.

Loss includes, but is not limited to, costs (including party to party legal costs and The Distributors’ legal costs), expenses, lost profits, award of damages, personal injury and property damage.

Order means a purchase order for Goods or Services placed by a Customer in response to a Purchase Order and as varied in writing from time to time by the parties.

PPS Law means:

(a) The Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the                          PPS Act (each as amended from time to time); and

(b) Any amendment made at any time to any other legislation as consequence of a PPS Law.

Purchase Order means a written description of the Goods or Services to be provided, an estimate of The Distributors’ charges for the performance of the required work and an estimate of the time frame for the performance of the work.

Services means the services to be provided by The Distributors to the Customer in accordance with a Purchase Order and these terms of trade.

1.2   Interpretation

In these terms of trade, unless the context otherwise requires:  

(a) A reference to writing includes email and other communication established through The Distributors’ website;

(b) The singular includes the plural and vice versa;

(c) A reference to a clause or paragraph is a reference to a clause or paragraph of these terms of trade;

(d) a reference to a party to these terms of trade or any other document or arrangement includes that party's                            executors, administrators, successors and permitted assigns;

(e) Where an expression is defined, another part of speech or grammatical form of that expression has a                                corresponding meaning;

(f) Headings are for ease of reference only and do not affect the meaning or interpretation of these terms of                           trade; and

(g) if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that                          act, matter or thing:

          (i) If it involves a payment other than a payment which is due on demand must b done on the                                             preceding Business Day; and

          (ii) In all other cases, must be done on the next Business Day. 

2    General

(a) These terms of trade apply to all transactions between the Customer and The Distributors relating to the                            provision of Goods and Services. This includes all quotations, contracts and variations. These terms of                            trade take precedence over terms of trade contained in any document of the Customer or elsewhere.

rovision of these terms or a party's consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.

(c) The Distributors may amend any details in a Purchase Order by notice in writing to the Customer. Such                            amended details supersede any relevant prior detail in dealings between the parties.

3    Purchase Orders

(a) The Distributors may provide the Customer with a Purchase Order. Any Purchase Order issued by The                              Distributors is valid for 14 days from the date of issue.

(b) Unless otherwise expressly agreed in writing, a Purchase Order does not include delivery or installation of                          the Goods.

(c) Purchase Orders are based upon the cost of materials available at the time of preparation of the Purchase                        Order and assume the timely supply by the Customer of necessary material and instructions to The                                  Distributors.

(d) Following provision of a Purchase Order to the Customer, The Distributors is not obliged to commence work                      until the Purchase Order has been accepted by the Customer. This occurs by the Customer completing an                       Order form and returning the form to The Distributors.

(e) The Distributors reserves the right to amend any Purchase Order before the Order has been completed to                          take into account any rise or fall in the cost of completing the Order. The Distributors will notify the                                    Customer of any amendment as soon as practicable, at which point the amended Purchase Order will be the                      estimate or Purchase Order for the purposes of these terms of trade.

(f) An indication in a Purchase Order of the time frame for the provision of the Goods or Services is an estimate                     only and is not a fixed time frame. Subject to any applicable obligations in respect of consumer guarantees                       under the Australian Consumer Law which the Customer may have, this estimate is not binding upon The                           Distributors.

   Orders

(a) Every Order by the Customer for the provision of Goods or Services must be submitted in writing on The                            Distributors’ standard Order form (unless otherwise agreed).

(b) An Order will only be deemed to be placed by the Customer if the Order clearly identifies the Goods                                  or Services ordered and The Distributors’ Purchase Order. Any costs incurred by The Distributors in reliance                      on incorrect or inadequate information provided by the Customer in an Order may result in the imposition of                        an Additional Charge.

(c) Orders must be signed by an authorised representative of the Customer and must specify the required date                        of delivery.

(d) Placement of an Order by the Customer signifies acceptance by the Customer of these terms of trade and                        the most recent Purchase Order provided by The Distributors relating to that Order.

(e) The Distributors may in its absolute discretion refuse to provide Goods or Services where:

          (i) Goods are unavailable for any reason whatsoever;

          (ii) Credit limits cannot be agreed upon or have been exceeded; or

          (iii) Payment for Goods or Services previously provided to the Customer or any related corporation of                                      the Customer or to any other party who is, in the reasonable opinion of The Distributors,                                                    associated with the Customer under the same or another supply contract, has not been received                                      by The Distributors.           

(f) An Order cannot be cancelled without the prior written consent of The Distributors. Where an Order is                                 cancelled, the Customer indemnifies The Distributors against any Losses incurred by The Distributors as a                       result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a                         result of the scheduling of the Order which is subsequently cancelled.

   Variations

(a) The Customer may request that its Order be varied by providing a request in writing to The Distributors. A                          request for a variation must be agreed to in writing by The Distributors in order to have effect.

(b) If the Customer wishes to vary its requirements after a Purchase Order has been prepared by The                                    Distributors or after the placement of an Order, The Distributors reserves the right to vary the Purchase                              Order to include any Additional Charge in respect of any extra costs incurred or additional work carried out                        due to the variation, in accordance with its then current charge rates. A revised Purchase Order issued by                          The Distributors in respect of the requested variation supersedes the original Purchase Order. If the revised                      Purchase Order only specifies additional work, the Purchase Order for that additional work will be in addition                      to the immediately preceding Purchase Order for the Goods or Services or both.

(c) The Distributors has an automatic extension of time for the provision of the Goods or Services equal to the                        delay caused by the variation.

   Invoicing and payment

(a) The Distributors may in its absolute discretion, issue an invoice to the Customer in any one or more of the                        following ways:

         (i) prior to commencing the provision of the Goods or Services, for an amount equal to the Purchase                                     Order and Additional Charges where The Distributors has not previously carried out work for the                                         Customer or where The Distributors chooses to do so;

          (ii) at the end of each week before the Order is completed, The Distributors may issue one or more                                        invoices for a proportion or the whole of the amount of the Purchase Order (the proportion to be                                        calculated at The Distributors’ discretion either for work done to that point, work in the future or                                          both) and require that proportion of the Purchase Order be paid in advance of any further Goods                                        or Services being provided; or

          (iii) upon completion of the provision of the Goods or Services or any time thereafter, for an amount                                        equal to the Purchase Order or the balance of the Purchase Order outstanding, any Additional                                          Charges and any amount not previously invoiced, or if no Purchase Order was provided, for an                                          amount representing The Distributors’ charge for the work performed in completing the Order and                                      for any Additional Charges.

(b) The amount payable by the Customer will be the amount set out in the invoice. This will be calculated as:

          (i) the amount for the Goods or Services (or both) as set out in the Purchase Order and any                                                    Additional Charges, or

          (ii) where no Purchase Order has been provided by The Distributors, The Distributors’ usual charges                                      for the goods or services (or both) as described in the Order.               

(c) The Customer must pay an invoice issued by The Distributors to The Distributors before the due date                                specified on the invoice and if no due date is specified, within 7 days of a valid tax invoice being issued to                        the Customer.

(d) If any invoice is due but unpaid, The Distributors may withhold the provision of any further Goods or                                  Services until overdue amounts are paid in full.

(e) The Distributors may in its complete discretion apply any payment received from the Customer to any                                amount owing by the Customer to The Distributors.

(f) The Customer is not entitled to retain any money owing to The Distributors notwithstanding any default or                           alleged default by The Distributors of these terms of trade, including (but not limited to) the supply of                                 allegedly faulty or defective Goods, provision of Services to an inadequate standard or a delay in the                                 provision of Goods or Services. Nothing in this paragraph affects any rights the Customer may have under                         the Australian Consumer Law for any alleged failure of a guarantee.

(g) The Customer is to pay The Distributors on demand interest at the rate of 10% per year on all overdue                              amounts owed by the Customer to The Distributors, calculated daily.

(h) All costs and expenses associated with collecting overdue amounts, including (but not limited to) legal fees                       and internal costs and expenses of The Distributors, are to be paid by the Customer as a debt due and                             payable under these terms of trade.

          (i) The Customer and The Distributors agree to comply with their obligations in relation to Goods and                                     Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any                                         other applicable legislation governing GST.

7    Additional Charges

(a) The Distributors may require the Customer to pay Additional Charges in respect of Costs incurred by The                          Distributors as a result of reliance on inadequate or incorrect information or material provided by the                                  Customer or information or material supplied later than required by The Distributors in order for it to provide                         the Goods or Services within the specified time frame (if any).

(b) The imposition of Additional Charges may also occur as a result of:

          (i)  cancellation by the Customer of an Order where cancellation results in Loss to The Distributors;

          (ii) photocopying, courier, packing or handling charges not included in the Purchase Order;

          (iii) Government or council taxes or charges not included in the Purchase Order; or

          (iv) additional work required by the Customer or any other occurrence which causes The Distributors                                       to incur costs in respect of the Customer's Order additional to the Purchase Order cost. 

   Acceptance of Goods

                If the Customer fails to advise The Distributors in writing of any fault in Goods or failure of Goods to accord with the Customer's Order within 24 hours of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer's Order. Nothing in this paragraph affects any rights the Customer may have under the Australian Consumer Law for any alleged failure of a guarantee. 

   Title and risk

(a) Risk in Goods passes to the Customer immediately upon delivery.

(b) Property and title in Goods supplied to the Customer under these terms of trade does not pass to the                                Customer until all money (including money owing in respect of other transactions between The Distributors                        and the Customer) due and payable to The Distributors by the Customer have been fully paid.

(c) Where Goods are supplied by The Distributors to the Customer without payment in full, the Customer:

          (i) is a bailee of the Goods until property in them passes to the Customer;

          (ii) irrevocably appoints The Distributors to be its attorney to do all acts and things necessary                                                to ensure the retention of title to goods including the registration of any security interest in favour                                      of The Distributors with respect to the Goods under applicable law;

           (iii) must be able upon demand by The Distributors to separate and identify as belonging to The                                              Distributors Goods supplied by The Distributors from other goods which are held by the                                                    Customer;

            (iv) must not allow any person to have or acquire any security interest in the Goods;

            (v) agrees that The Distributors may repossess the Goods if payment is not made within 14 days (or                                      such longer time as The Distributors may, in its complete discretion, approve in writing) of the                                          supply of the Goods; and

            (vi) the Customer grants an irrevocable licence to The Distributors or its agent to enter the                                                      Customer's premises in order to recover possession of Goods pursuant to this paragraph. The                                          Customer indemnifies The Distributors for any damage to property or personal injury which                                                occurs as a result of The Distributors entering the Customer's premises.                    

Where Goods are supplied by The Distributors to the Customer without payment in full of all moneys payable                       in respect of the Goods and any Services provided by The Distributors in respect of those Goods, and:

           (i) the Customer makes a new object from the Goods, whether finished or not;

           (ii) the Customer mixes the Goods with other goods; or

           (iii) the Goods become part of other goods (New Goods),

                    The Customer agrees with The Distributors that the ownership of the New Goods immediately passes to The                     Distributors. The Customer will hold the New Goods on trust for The Distributors until payment of all sums                         owing to The Distributors whether under these terms of trade or any other contract have been made. The                           Distributors may require the Customer to store the New Goods in a manner that clearly shows the ownership                     of The Distributors.

(e) For the avoidance of doubt, under paragraph 9(d), the ownership of the New Goods passes to The                                      Distributors at the beginning of the operation or event by which the Goods are converted into, are mixed with                      or become part of other goods.

 (f) Despite paragraph third party in the ordinary course of business. This is provided that:

          (i) where the Customer is paid by a third party in respect of Goods including New Goods, the                                                 Customer holds the whole of the proceeds of sale, less any GST, on trust for The Distributors in a                                     separate account, until all amounts owned by the Customer to The Distributors have been paid; or

          (ii) where the Customer is not paid by a third party, the Customer agrees to assign all of its rights                                         against the third party to The Distributors upon The Distributors giving the Customer notice in                                           writing to that effect and for the purpose of giving effect to that assignment the Customer                                                 irrevocably appoints The Distributors as its attorney.        

(g) Where Goods are supplied by The Distributors to the Customer without payment in full of all moneys payable                      in respect of the Goods and any Services provided by The Distributors in respect of those Goods, the                                Customer acknowledges that The Distributors has a right to register and perfect a personal property security                      interest.

(h) If:

          (i) A PPS Law applies or commences to apply to these terms of trade or any transaction                                                       contemplated by them, or The Distributors determines (based on legal advice) that this is the                                           case; and

          (ii) In the Distributors’ opinion, the PPS Law:

                                               (A) Does or will adversely affect The Distributors’ security position or                                                                                    obligations; or

                                               (B) Enables or would enable The Distributors’ security position to be improved                                                                       without adversely affecting the Customer,                   

         The Distributors may give notice to the Customer requiring the Customer to do anything (including amending these terms of trade or execute any new Terms and Conditions) that in The Distributors’ opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in paragraph 9(h)(ii)(A) or improve the security position as contemplated in paragraph 9(h)(ii)(B). The Customer must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this paragraph, in The Distributors’ opinion The Distributors’ security position or obligations under or in connection with these terms of trade have been or will be materially adversely affected, The Distributors may by further notice to the Customer cancel these terms of trade. If this occurs, the Customer must pay to The Distributors any money owed to The Distributors by the Customer immediately.   

10    Intellectual Property Rights

 (a) The Customer warrants that it owns all Intellectual Property Rights pertaining to its Order for Goods or                                Services or has a licence to authorise The Distributors to reproduce or use all copyright works or other                              materials the subject of Intellectual Property Rights supplied by the Customer to The Distributors for the                            purposes of the Order. Further, the Customer indemnifies and agrees to keep indemnified The Distributors                          against all Losses incurred by The Distributors in relation to or in any way directly or indirectly connected                          with any breach of any other Intellectual Property Rights in relation to any material supplied by the                                    Customer.

 (b) Unless specifically agreed in writing between The Distributors and the Customer, all Intellectual Property                            Rights in any works created by The Distributors on behalf of the Customer vest in and remain the property of                      The Distributors.

(c) Subject to payment of all invoices due in respect of the Goods or Services, The Distributors grants to the                          Customer a perpetual, non-exclusive licence to use the works created or produced by The Distributors in                            connection with the provision of Goods or Services under these terms of trade for the purposes                                        contemplated by the Order.

11    Agency and assignment

(a) The Customer agrees that The Distributors may at any time appoint or engage an agent to perform an                                obligation of The Distributors arising out of or pursuant to these terms of trade.

(b) The Distributors has the right to assign and transfer to any person all or any of its title, estate, interest,                              benefit, rights, duties and obligations arising in, under or from these terms of trade provided that the                                  assignee agrees to assume any duties and obligations of The Distributors owed to the Customer under                              these terms of trade.

(c) The Customer is not to assign, or purport to assign, any of its obligations or rights under these terms of                            trade without the prior written consent of The Distributors.

12    Default by Customer

(a) Each of the following occurrences constitutes an event of default:

          (i) The Customer breaches or is alleged to have breached these terms of trade for any reason                                               (including, but not limited to, defaulting on any payment due under these terms of trade) and fails                                        to remedy that breach within 14 days of being given notice by The Distributors to do so;

          (ii) The Customer, being a natural person, commits an act of bankruptcy;

          (iii) The Customer, being a corporation, is subject to:

                            (A) a petition being presented, an order being made or a meeting being called to consider                                                      a resolution for the Customer to be wound up, deregistered or dissolved;

                             (B) a receiver, receiver and manager or an administrator under Part 5.3A of the                                                                     Corporations Act 2001 being appointed to all or any part of the Customer's property                                                           and undertaking;

                              (C) The entering of a scheme of arrangement (other than for the purpose of                                                                             restructuring); and

                              (D) Any assignment for the benefit of creditors;

          (iv) The Customer purports to assign its rights under these terms of trade without The Distributors’                                           prior written consent; or

           (v) The Customer ceases or threatens to cease conduct of its business in the normal manner.

13    Termination

                In addition to the express rights of termination provided in these terms of trade, a party may terminate these                     terms of trade by giving 30 days’ written notice to the other party.

14    Exclusions and limitation of liability

(a) The Customer expressly agrees that use of the Goods and Services is at the Customer's risk. To the full                            extent allowed by law, The Distributors’ liability for breach of any term implied into these terms of trade by                          any law is excluded.

(b) All information, specifications and samples provided by The Distributors in relation to the Goods or Services                      are approximations only and, subject to any applicable guarantees under the Australian Consumer Law,                            small deviations or slight variations from them which do not substantially affect the Customer's use of the                          Goods or Services will not entitle the Customer to reject the Goods upon delivery, or to make any claim in                        respect of them.

(c) The Distributors gives no warranty in relation to the Services provided or supplied. Under no circumstances                        is The Distributors or any of its suppliers liable or responsible in any way to the Customer or any other                              person for any loss, damages, costs, expenses or other claims (including consequential damages and loss                        of profits or loss of revenues) as a result, direct or indirect of any defect, deficiency or discrepancy in the                          Goods or Services. This includes their form, content and timeliness of deliveries, failure of performance,                            error, omission, defect, including, without limitation, for and in relation to any of the following:

          (i) any Goods or Services supplied to the Customer;

          (ii) any delay in supply of the Goods or Services; or

          (iii) any failure to supply the Goods or Services.

(d) Any advice, recommendation, information, assistance or service given by The Distributors in relation to                             Goods or Services or both, is given in good faith and is believed to be accurate, appropriate and reliable at                          the time it is given.It is provided without any warranty or accuracy, appropriateness or reliability. The                                  Distributors does not accept any liability or responsibility for any Loss suffered as a result of the Customer's                      reliance on such advice, recommendation, information, assistance or service. (e) To the fullest extent permissible at law, The Distributors is not liable for any direct, indirect, punitive,                                 incidental, special, consequential damages or any damages whatsoever including, without limitation,                                 damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure                     to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether                           based on terms of trade, negligence, strict liability or otherwise, even if The Distributors has been advised of                     the possibility of damages.

(g) The Australian Consumer Law may give to the Customer certain guarantees. Where liability for breach of                            any such guarantee can be limited, The Distributors’ liability (if any) arising from any breach of those                                guarantees is limited with respect to the supply of Goods, to the replacement or repair of the Goods or the                        costs of resupply or replacement of the Goods or with respect to Services to the supply of Services again or                      cost of re-supplying the Services again.

15    Indemnity

(a) The Customer indemnifies and keeps indemnified The Distributors, its servants and agents in respect of any                      claim or demand made or action commenced by any person (including, but not limited to, the Customer)                            against The Distributors or, for which The Distributors is liable, in connection with any Loss arising from or                        incidental to the provision of Goods or Services, any Order or the subject matter of these terms of trade                            including.

(b) This includes, but is not limited to, any legal costs incurred by The Distributors in relation to meeting any                          claim or demand or any party/party legal casts for which The Distributors is liable in connection with any                            such claim or demand.

(c) This provision remains in force after the termination of these terms of trade.

16    Force majeure

(a) If circumstances beyond The Distributors’ control prevent or hinder its provision of the Goods or Services,                          The Distributors is free from any obligation to provide the Goods or Services while those circumstances                            continue. The Distributors may elect to terminate this agreement or keep the agreement on foot until such                          circumstances have ceased.

(b) Circumstances beyond The Distributors’ control include, but are not limited to, unavailability of materials or                        components, strikes, lockouts, riots, natural disasters, fire, war, acts of God, Government decrees,                                  proclamations or orders, transport difficulties and failures or malfunctions of computers or other information                        technology systems.

17    Dispute resolution

(a) If a dispute arises between the Customer and The Distributors, the following procedure applies:

          (i) A party may give another party a notice of the dispute and the dispute must be dealt with in                                               accordance with the procedure set out in this clause.

          (ii) A party must not commence legal proceedings (except proceedings seeking interlocutory relief) in                                      respect of a dispute unless the dispute has been referred for resolution in accordance with this                                          paragraph.

          (iii) A party must not oppose any application for a stay of any legal proceedings that may be issued                                         in respect of a dispute pending the completion or termination of the procedure set out in this               (b) If a dispute is notified, the dispute must immediately be referred to the parties' respective senior                                        management. Those representatives must endeavour to resolve the dispute as soon as possible and in any                      event within 14 Business Days (or other period as agreed).

(c) Unless otherwise agreed by the parties, any dispute that cannot be settled by negotiation between the                                parties or their representatives, the parties expressly agree to endeavour to settle the dispute by mediation                        administered by the Australian Disputes Centre (ADC) before having recourse to arbitration or litigation. The                      mediation must be conducted in accordance with the ADC Guidelines for Commercial Mediation which                              operate at the time the matter is referred to ADC. The Guidelines set out the procedures to be adopted, the                        process of selection of the mediator and the costs involved. The terms of the Guidelines are incorporated                          into these terms of trade. This paragraph survives termination of these terms of trade.

(d) Notwithstanding the existence of a dispute (including the referral of the dispute to mediation), each party                            must continue to perform its obligations under these terms of trade.

(e) The parties must hold confidential, unless otherwise required by law or at the direction of a court of                                    competent jurisdiction, all information relating to the subject matter of the dispute that is disclosed during or                      for the purposes of dispute resolution. The parties acknowledge that the purpose of any exchange of                                  information or documents or the making of any offer of settlement pursuant to this procedure is to attempt to                      settle the dispute between the parties. No party may use any information or documents obtained through the                      dispute resolution process for any purpose other than an attempt to settle the dispute between the parties.

18    Miscellaneous

(a) These terms of trade are governed by the laws of the state where The Distributors’ registered office is situated and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state.

(b) These terms of trade and any Purchase Orders and written variations agreed to in writing by The Distributors represent the whole agreement between the parties relating to the subject matter of these terms.

(c) These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.

(d) In entering into these terms of trade, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by The Distributors or any of its employees or agents relating to or in connection with the subject matter of these terms of trade.

(e) If any provision of these terms of trade at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.

(f) A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.

(g) A notice or other communication required or permitted to be given by one party to another must be in writing to the address shown on a Purchase Order (or as varied pursuant to this paragraph) and delivered personally, sent by pre-paid mail to the address of the addressee specified in the relevant Purchase Order; sent by fax to the fax number of the addressee specified in the relevant Purchase Order, with acknowledgment of receipt from the facsimile machine of the addressee or sent by email to the email address of the addressee specified in the relevant Purchase Order with acknowledgement of delivery.

(h) A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by fax or email before 4 pm one Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.

          (i) A party may only change its postal or email address or fax number for service by giving notice of that change in writing to the other party.