The following standard terms (Terms) apply where Tyremax Pty Ltd (Seller), supplies Goods to a Buyer.
In these Terms:
Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth) and any other corresponding legislation;
Business Day means any day which is not a Saturday, Sunday or public holiday in the state in which the Goods are sold to the Buyer;
Buyer means the person or entity who is buying the Goods from the Seller, the details of which are set out in the Purchase Order;
Consumer has the meaning given to it in section 3 of the Australian Consumer Law;
Consumer Guarantee has the meaning given to it in the Australian Consumer Law;
Contract means the contract between the Buyer and Seller which consists of the credit application, these Terms, the directors’ guarantee (if applicable) and all accepted Purchase Orders placed by the Buyer;
Defective Goods means Goods that are defective in design, performance or workmanship;
Goods means goods supplied by the Seller to the Buyer;
GST Act means A new Tax System (Goods and Services Tax) Act 1999;
Insolvency Event means the happening of any of these events:
- a party suspends payment of its debts generally, is or becomes unable to pay its debts when they are due, or is or becomes unable to pay its debts within the meaning of the Corporations Act 2001 (Cth);
- a party enters into, or resolves to enter into, any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them;
- a receiver, receiver and manager, liquidator, provisional liquidator, administrator, trustee or similar official is appointed over any of the assets or undertakings of a party, an application or order is made for the winding up or dissolution of a party, or a resolution is passed or any steps are taken to pass a resolution for the winding up or dissolution of a party, except for the purpose of an amalgamation or reconstruction which has the other party’s prior consent;
- a party goes bankrupt; or
- a party ceases, or threatens to cease, to carry on business;
Loss means all actions, claims, costs (including legal costs on an indemnity basis), damages, expenses, interest, liabilities and losses (whether direct, indirect, special, consequential or otherwise);
PPSA means the Personal Property Securities Act 2009 (Cth);
Price means the price for the supply of the Goods as provided for in clause 4;
Purchase Order means a purchase order issued by the Buyer setting out details of the Goods the Buyer requires the Seller to supply; and
Tax Invoice has the meaning given to it in the GST Act.
- These Terms:
- supersede and exclude all prior and other discussions, representations (contractual or otherwise) and arrangements relating to the supply of the Goods including, but not limited to, those relating to the performance of the Goods or the results that ought to be expected from using the Goods; and
- override any quotes, invoices or other documentation exchanged between the parties whether or not such documents expressly provide that they override these Terms.
- Unless the Seller otherwise agrees in writing, these Terms are the only terms which shall apply to all Goods supplied by the Seller.
- The Buyer agrees that these Terms will in all circumstances prevail over the Buyer’s terms and conditions of purchase (if any).
3. PURCHASE ORDERS
- The Seller reserves the right to accept or reject in its absolute discretion any Purchase Order, or part of a Purchase Order, which it may receive from the Buyer. Acceptance may be by supply of all or part of the Goods ordered.
- The Seller may cancel the supply of Goods at any time before the delivery of any instalment of the Goods, by written notice to the Buyer. The Seller is not liable for any Loss arising from such cancellation.
- The Buyer may not without the Seller’s consent cancel a Purchase Order after the Seller has accepted the Purchase Order. If the Seller consents to the cancellation of a Purchase Order, the Buyer will be liable for any costs incurred by the Seller up to the time of the cancellation.
- At the Seller’s discretion the Price of the Goods will be:
- the Seller’s current price at the date of delivery of the Goods; or
- the Seller’s quoted price which will be binding on the Seller for a period of 14 days from the date of quotation (subject to, in the case of Goods supplied by the Seller from outside Australia, any adjustment of the quoted Price required to reflect any variation in the rates of exchange between the Australian currency and the currency in which the Seller acquires the Goods, between the date of the quote and the date the Goods are ready for delivery to the Customer) and which may be accepted by the Buyer, by written notice to the Seller, at any time within those 14 days.
- Any variation from the plan of scheduled works or specifications pertaining to the Goods, will be charged for, in addition to the Price, in accordance with clause 4(a) and will be shown as extra Goods on the Seller’s invoice. Payment for all extra Goods must be made in full at the time that they are supplied.
- Time for payment for the Goods is of the essence and will be stated on the Seller’s invoice, quotation or any other order forms. If no time is stated by the Seller then payment must be made on delivery of the Goods.
- The Seller may withhold delivery of the Goods until the Buyer has paid for them in full, in which case payment must be made on or before the delivery date.
- Unless prices quoted by the Seller are stated to include any sales, value added, goods and services tax or similar tax which may apply, these taxes are payable by the Buyer in addition to the quoted prices.
- The Buyer must pay the Price for Goods supplied to the Buyer:
- in full on delivery of the Goods; or
- if the Seller has extended credit to the Buyer (which has not been terminated by the Seller under clause 12(a)(i)), within 30 days of the invoice sent to the Buyer; and
- by cheque payable to the Seller or by credit card (plus any charges that may be applicable), by direct debit or in any other way that the Seller directs.
- Payment by cheque or other negotiable instrument is not regarded as received until it is cleared.
- Without prejudice to any other rights or remedies of the Seller, if the Buyer fails to make (whether in full or in part) any payment required under these Terms on or before the due date for payment then:
- the Seller may charge the Buyer interest on the unpaid amount at 2% per annum above the average of the most recent prime rate, indicator rate, or reference rate (however described) for business overdrafts published by Commonwealth Bank of Australia; and
- such interest will accrue from the date payment was due to the date payment is made, will be calculated daily and capitalised monthly and must be paid by the Buyer upon demand by the Seller.
- The Seller will use all commercially reasonable efforts to deliver the Goods for which it has accepted a Purchase Order to the agreed delivery location by the date specified in the Purchase Order.
- The Seller may deliver the Goods by separate instalments. Each separate instalment will be invoiced and paid for in accordance with clauses 4 and 5.
- Delivery of the Goods to a third party nominated by the Buyer, or collection of the Goods by the Buyer, is deemed to be delivery to the Buyer for the purposes of these Terms.
- The failure of the Seller to deliver the Goods under the Contract does not entitle either party to treat the Contract as repudiated.
- The Seller is not liable for any Loss whatever due to the failure by the Seller to deliver the Goods (or any of them) promptly or at all.
7. TITLE AND RISK
- Risk in the Goods passes to the Buyer when the Goods are loaded at the Seller’s warehouse for delivery to the Buyer. The Seller will not in any circumstances accept liability for shortage, insurance or Loss during transit.
- Title to the Goods passes to the Buyer on payment in full of the Price for the Goods.
- The Seller’s rights under this clause 7 secure:
- the Seller’s right to receive the Price of the Goods; and
- all other amounts owing to the Seller under any other contract.
- All payments received from the Buyer must be applied in accordance with section 14(6)(c) of the PPSA.
- Until full payment in cleared funds is received by the Seller for all Goods supplied by it to the Buyer, as well as all other amounts owing to the Seller by the Buyer under any other contract:
- legal title and property in all Goods supplied under the Contract remain vested in the Seller and do not pass to the Buyer;
- subject to (iii), the Buyer must keep the Goods separate from other goods and maintain the labelling and packaging of the Seller so that they are readily identifiable as the property of the Seller;
- the Buyer must not sell the Goods except in the ordinary course of the Buyer’s business;
- in addition to any rights the Seller may have under Chapter 4 of the PPSA, the Seller may, without notice, enter any premises where it suspects the Goods may be located and remove them without committing a trespass, even though they may have been attached to other goods or land not the property of the Seller, and for this purpose the Buyer irrevocably licenses the Seller to enter such premises and also indemnifies the Seller from and against all Loss suffered or incurred by the Seller as a result of exercising its rights under this clause. If there is any inconsistency between the Seller’s rights under this clause 7(e)(iv) and its rights under Chapter 4 of the PPSA, this clause 7(e)(iv) prevails;
- the Buyer acknowledges and warrants that the Seller has a security interest (for the purposes of the PPSA) in the Goods and any proceeds until title passes to the Buyer in accordance with this clause 7. The Buyer must do anything reasonably required by the Seller to enable the Seller to register its security interest, with the priority the Seller requires and to maintain that registration; and
- the security interest arising under this clause 7 attaches to the Goods when the Buyer obtains possession of the Goods and the parties confirm that they have not agreed that any security interest arising under this clause 7 attaches at any later time.
- The Buyer must, as soon as possible after delivery, check the quantity of the Goods delivered against the quantity due to be delivered.
- The Seller is not responsible for making good any shortage unless the Buyer gives the Seller notice of the shortage within 2 Business Days after delivery.
- If the Seller does not receive a notice under clause 8(b), the Goods delivered will be considered to accord with the relevant Purchase Order and to be accepted by the Buyer.
9. ACCEPTANCE OF GOODS
- The Buyer must, as soon as possible after delivery, check whether the Goods are Defective Goods when delivered.
- Goods will be considered to have been delivered in good condition unless the Buyer gives the Seller notice of the Defective Goods within 2 Business Days after delivery.
- If the Buyer gives the Seller notice under clause 9(b), it must:
- preserve the Defective Goods in the state in which they were delivered for 10 Business Days after it gives the Seller the notice; and
- during that period, allow the Seller access to the Buyer’s premises to inspect the Defective Goods; or
- at the Seller’s request return the Defective Goods, at the Buyer’s cost within 10 Business Days after the delivery date in the condition in which they were delivered and with all packaging material in as new condition as is reasonably possible in the circumstances.
10. CLAIMS AND LIMITATION OF LIABILITY
- The Buyer must:
- promptly inform the Seller of all complaints or claims relating to any of the Goods;
- not admit liability on behalf of the Seller in respect of any complaint or claim relating to any of the Goods;
- not resolve or settle any complaint or claim relating to any of the Goods which may result in the Seller incurring any liability (whether to a customer, the Buyer or any other person); and
- deal promptly with all complaints or claims relating to any of the Goods which will not result in the Seller incurring any liability.
- Subject to clause 10(c):
- all conditions, warranties and implied terms, whether statutory or otherwise, are excluded in relation to the Goods; and
- the Seller excludes any liability for legal costs and disbursements and, without limitation, any indirect or consequential expense, loss or damage, loss of profits, revenue, use, expectation or opportunity, wasted expenditure, lost production or similar losses suffered by the Buyer under or in connection with the Contract.
- The Australian Consumer Law provides Consumers with a number of protections and Consumer Guarantees that cannot be excluded or limited. These Terms, and in particular the limitations of liability set out in these Terms, are therefore subject to, and will not apply to the extent that they limit or exclude, such protections and Consumer Guarantees applicable to Consumers. However where the Australian Consumer Law permits the Seller to limit the remedies available to it for a breach of a Consumer Guarantee, the Seller hereby limits its remedies to such Consumers, at the Seller’s option, to the repair or replacement of the Goods, the supply of equivalent Goods or the payment of the cost of having the Goods repaired or replaced or having equivalent Goods supplied.
- Any reference in this clause 11 to a term defined or used in the GST Act is, unless the context indicates otherwise, a reference to that term was defined or used in that Act.
- To the extent that any supply made under or in connection with the Contract is a taxable supply, the recipient must pay, in addition to the consideration to be provided under the Contract for that supply (unless it expressly includes GST) an amount equal to the amount of that consideration (or its GST exclusive market value) multiplied by the rate at which GST is imposed in respect of the supply, provided that the Seller has first issued to the recipient a Tax Invoice in respect of that taxable supply.
- The Seller may terminate:
- the terms of credit provided to the Buyer;
- any Purchase Order placed by the Buyer; or
- the Contract, by written notice to the Buyer if the Buyer:
- breaches the Contract in a material respect and, in the reasonable opinion of the Seller, the breach:
- cannot be remedied; or
- can be remedied, but is not remedied by the Buyer within 5 Business Days after the Seller gives the Buyer notice of the breach; or
- suffers an Insolvency Event.
- breaches the Contract in a material respect and, in the reasonable opinion of the Seller, the breach:
- The Buyer must, within 5 Business Days after the date of termination pay the Seller all amounts it owes the Seller, whether due at that time or not.
The Buyer indemnifies the Seller against any Loss which the Seller suffers, incurs or is liable for in connection with the Contract including, but not limited to:
- any act or omission of the Buyer;
- any breach of the Contract by the Buyer; and
- enforcing any security interest arising under the Contract.
14. PRIVACY ACT 1988
- The Buyer consents to the Seller obtaining from a credit-reporting agency a credit report containing personal credit information about the Buyer in relation to credit provided by the Seller.
- The Buyer agrees that the Seller may exchange information about the Buyer with those credit providers named in the credit application or named in a consumer credit report issued by a reporting agency for the following purposes:
- to assess the credit application by the Buyer;
- to notify other credit providers of a default by the Buyer;
- to exchange information with other credit providers as to the status of the credit account, where the Buyer is in default with other credit providers; and
- to assess the credit worthiness of the Buyer.
- The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit.
- The Buyer agrees that personal data provided by the Buyer and/or the guarantor may be used and retained by the Seller for the following purposes and for other purposes as may be agreed between the Buyer the Seller or required by law from time to time:
- the provision of Goods;
- the marketing of Goods by the Seller, its agents or distributors in relation to the Seller’s Goods;
- analysing, verifying or checking the Buyer’s credit, payment and status in relation to provision of Goods;
- processing of any payment instructions, direct debit facilities and credit facilities requested by the Buyer; and
- enabling the daily operation of the Buyer’s account and the collection of amounts outstanding in the Buyer’s account in relation to the Goods.
- The Seller may give information about the Buyer to a credit reporting agency for the following purposes:
- to obtain a consumer credit report about the Buyer; and
- to allow the credit reporting agency to create or maintain a credit information file containing information about the Buyer.
15. FORCE MAJEURE
- In this clause 15, Force Majeure means an act of God; war, revolution or any other unlawful act against public order or authority; an industrial dispute including strike or other labour disturbances; a governmental restraint; a shortage or unavailability of raw materials, production capacity or transportation and any other event which is not within the reasonable control of the Seller.
- Where Force Majeure prevents or delays the Seller from performing any obligation under the Contract, that obligation is suspended as long as the Force Majeure continues.
- These Terms are governed by the laws of the State in which the Goods are manufactured or, at the Seller’s the courts of that State and courts entitled to hear appeals from those courts.
- The Contract supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties in respect of its subject matter.
- If the Buyer comprises more than one person:
- the Contract binds each Buyer jointly and severally; and
- the Seller is only required to give notices, quotes and other information, to one of the Buyers (who undertakes to provide the notices, quotes and information to the other Buyer or Buyers).
- A waiver of any right arising under the Contract must be in writing and signed by the party granting the waiver. Any variation of the Contract must be in writing and signed by the parties.
- The Seller and the Buyer are independent contracting parties and nothing in these Terms makes either party the agent or legal representative of the other or grants either party any authority to assume or create an obligation on behalf of the other.
17. ENFORCEMENT OF SECURITY INTERESTS
If Chapter 4 of the PPSA would otherwise apply to the enforcement of the security interest created under the Contract, the Buyer agrees that the following provisions of the PPS Act will not apply:
- section 95 (notice of removal of accession), to the extent that it requires the Seller to give a notice to the Buyer;
- section 121(4) (enforcement of liquid assets – notice to grantor);
- section 130 (notice of disposal), to the extent that it requires the Seller to give a notice to the Buyer;
- paragraph 132(3)(d) (contents of statement of account after disposal);
- subsection 132(4) (statement of account if no disposal);
- section 135 (notice of retention);
- section 142 (redemption of collateral); and
- section 143 (reinstatement of security agreement).
18. NOTICES UNDER PPSA
The Seller does not need to give the Buyer any notice under the PPSA (including a notice of a verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.