THU, 21.09.2017 
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 EXAFAST PTY LTD ACN: 127 033 523 ABN: 66 127 033 523

 STANDARD TERMS AND CONDITIONS OF SALE: ISSUE: COS3

 

1.             GENERAL

a)   These terms and conditions (“Terms”) will apply to any contract which may from time to time come into existence between Exafast Pty Limited ("the Company") and a purchaser of goods from the Company ("the Customer") and in the event of any inconstancy between these Terms and any prior agreement or purported agreement or any terms and conditions in any purchase order received from the Customer, these Terms will prevail.

b)   These Terms are subject to variation by the Company from time to time. Notice of such variation will be given in writing to the Customer and such variation will be effective from the date upon which the Customer receives notice of such variation.

c)   The goods supplied under these Terms are either standard product normally available ex-stock in industry standard packs ("Stock Orders") or products especially manufactured to a specification supplied by the Customer ("Special Orders").

d)   No contract will arise between the Company and the Customer until such time as the Customer's purchase order is accepted by the Company.

2.             PRICE

a)   Prices are subject to change without notice. Prices prevailing at the time of delivery will apply to the order. Goods and Services Tax (‘GST’) and other government imposts will be shown as a separate amount on the invoice if applicable.

b)   All prices are quoted excluding GST or any other tax, levy, government impost, or the like imposed on the sales of goods.  If a tax exemption is claimed, it will be the Customer's responsibility to furnish the Company with a duly authorised statement of exemption. If no such statement is received by the Company, the relevant tax will be added to the price as applicable.

            c) The Customer will indemnify the Company in respect of the GST paid and payable by the Company in respect of the sale of the goods and any service provided.

d)   On the acceptance of a Special Order, the Company reserves the right to require the Customer to accept an increase in the quantity supplied of up to 10% more than the quantity ordered and such additional quantity will be charged for on a pro-rata price basis.

3.             DELIVERY

a)      Goods will be delivered during normal working hours to the address specified by the Customer.

b)   The Customer acknowledges that the delivery date given by the Company on acceptance of the order is a bona fide estimate only. The Company will not be responsible for any delay due to circumstances beyond its control including, but not limited to, acts of God, strikes or lockouts.

c)   If a delay occurs due to circumstances beyond the Company's control, the Company may, at its option, either extend the time for delivery for a reasonable period or determine the contract, and the Customer will not have any claim for damages relating thereto and the Company will be entitled to recover all sums owing to it in respect of deliveries made prior to such determination.

d)   If no shipping address has been specified or if for any other reason, not the fault of the Company, shipment cannot be made, delivery will be deemed to be effected by the setting aside by the Company of the goods at the Company's premises or by the placement by the Company of the goods in storage in the name of the Customer. In this event the Company reserves the right to charge storage fees.

e)   The Company reserves the right to make partial deliveries and to invoice for such partial deliveries as if they were separate order.

f)   All claims for faulty workmanship, shortages, damage or failure to supply goods in accordance with the Customer's orders must be made within 7 days of delivery of the goods. The Customer hereby acknowledges that the non-lodgment of a claim within seven (7) days of delivery of the goods is deemed to be an acceptance that the Customer has examined the goods and found no defect.

4.             PAYMENT

       a) Payment for goods supplied must be made within thirty (30) days of the date of delivery of the goods.

b)   If the Customer fails to pay the amount(s) invoiced when due, the Company is entitled to charge, and the Customer is liable to pay, interest on the overdue amount at the rate of four percent (4%) per annum above the prime rate quoted by the Company's bankers from time to time. Any payment subsequently made will be credited firstly against the interest so accrued and thereafter against the principal overdue.

5.             TITLE AND RISK

a)   Property in and title to the goods will not pass to the Customer until all amounts owing to the Company, pursuant to any contract between the Company and the Customer, have been paid in full.

b)   Unless and until property in and title to the goods has passed to the Customer or the goods have been sold by the Customer in the ordinary course of the Customer’s business:

      (i)                the Customer holds the goods as bailee for the Company;

      (ii)               the goods are always at the risk of the Customer. 

c)   The Customer is deemed to be in default under its contract with the Company immediately upon the happening of any of the following events:

      (i)                if any payment to the Company is not made promptly before the due date for payment;

(ii)  if the Customer ceases to carry on business or stops or suspends payment or states its intention of so doing or is unable to pay its debts as they fall due or if any cheque or bill of exchange drawn by the Customer payable to the Company is dishonoured.

  1. In the event of a default by the Customer, then without prejudice to any other rights that the Company may have at law or under this contract:

(i)   Company or its agents may without notice to the Customer enter the Customer’s premises or other premises where the Customer has located the goods and the Customer agrees to indemnify and keep indemnified Company from any claim whatsoever by any third party person or company in possession arising out of any action required by Company to recover such goods;

(ii)  Company may recover and resell the goods.

  1. If the goods cannot be distinguished from similar goods which the Customer has or claims to have paid for in full, Company may in its absolute discretion seize all goods matching the description of the goods and hold same for a reasonable period so that the respective claims of Company and the Customer may be ascertained.  Company must promptly return to the Customer any goods the property of the Customer and Company is in no way liable or responsible for any loss or damage to the goods or for any loss, damage or destruction to the Customer’s business howsoever arising from the seizure of the goods.
  2. In the event that the Customer uses the goods in some manufacturing or construction process of its own or some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the goods in trust for Company.  Such part will be an amount equal in dollar terms to the amount owing by the Customer to the Company at the time of the receipt of such proceeds. The Customer will pay Company such funds held in trust upon the demand of Company.

g)   Until payment has been made for the goods, the Customer will insure the goods against all usual risks.  Any insurance claims in respect of damage or destruction to the goods is hereby assigned by the Customer to the Company. The Customer will indemnify the Company against all loss or damage to or caused by the goods however arising.

h)   Risk in the goods will pass to the Customer upon delivery to the Customer.

6.          PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)

  1. Defined terms in this clause have the same meaning as given to them in the PPSA.
  2. The Company and the Customer acknowledge that these Terms constitute a Security Agreement and give rise to a Purchase Money Security Interest (“PMSI”) in favour of the Company over the goods supplied or to be supplied to the Customer as Grantor pursuant to the Terms.
  3. The goods supplied or to be supplied under these Terms fall within the PPSA classification of ”Other goods” acquired by the Customer pursuant to these Terms.
  4. The Company and the Customer acknowledge that the Company, as Secured Party, is entitled to register its interest in the goods supplied or to be supplied to the Customer as Grantor under the Terms on the PPSA Register as Collateral.
  5. To the extent permissible at law, the Customer:

(i)     waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer, as Grantor, to the Company.

(ii)    agrees to indemnify the Company on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;

        (A)  registration or amendment or discharge of any Financing Statement registered by or on behalf of the Company; and

        (B)  enforcement or attempted enforcement of any Security Interest granted to the Company by the Customer.

(iii)   agrees that nothing in sections 130 to 143 of the PPSA will apply to the Terms or the Security under the Terms;

(iv)  agrees to waive its right to do any of the following under the PPSA:

(A)   receive notice of removal of an Accession under section 95;

(B)   receive notice of an intention to seize Collateral under section 123;

(C)   object to the purchase of the Collateral by the Secured Party under section 129;

(D)   receive notice of disposal of Collateral under section 130;

(E)    receive a Statement of Account if there is no disposal under section 132(4);

(F)    receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.

(G)   receive notice of retention of Collateral under section 135;

(H)   redeem the Collateral under section 142; and

(I)     reinstate the Security Agreement under section 143.

7.             WARRANTIES

a)     Company’s liability in respect of a breach of a consumer guarantee for any goods not of a kind ordinarily acquired for personal, domestic or household use is limited to, to the extent permissible by law and at Company’s option in relation to the goods:

(i)   the replacement of the goods or the supply of equivalent goods;

(ii)  the repair of the goods;

(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)     Company excludes to the full extent permitted by law to which it is entitled to do so by law, any or all other warranties whether implied or otherwise, not set out in these Terms and Company is not liable in contract, tort (including without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for

  1.     any increased costs or expenses;
  2. any loss of profit, revenue, business, contracts or anticipated savings;
  3. any loss or expense resulting from a claim by a third party;
  4. any special, indirect or consequential loss or damage of any nature whatsoever caused by Company’s failure to complete or delay in completing any of its obligations set out in these Terms;
  5. defects or damages caused in while or in part by misuse, abuse, neglect, electrical or other overload, non suitable lubricant, improper installation repair or alteration (other than by Company) or accident;
  6. any transport installation removal labour or other costs;
  7. defects in goods not manufactured by it but Company will endeavour to pass on to the Customer the benefit of any claim made by Company and accepted by the manufacturer of such goods under a warranty given by the manufacturer of such goods provided that nothing contained in this subparagraph shall limit the Customer’s rights under law;
  8. technical advice or assistance given or rendered by it to the Customer or not in connection with the manufacture construction or supply of goods for or to the Customer provided always that Company has rendered such services with due care and skill and that any material supplied in connection with those services are reasonably fit for the purpose for which they are supplied.

c)      The exemption, limitations, terms and conditions in these Terms apply whether or not the loss or damage is caused by negligence or actions constituting fundamental breach of contract.

8.             PATENTS AND DESIGNS

In respect of specifications supplied by the Customer for a Special Order, the Customer hereby indemnifies and agrees to keep indemnified the Company from and against any liability in respect of any loss or damage whether direct or indirect arising from an infringement of patent, registered design or other intellectual property right.

9.             RETURNS

                Other than in the event of a warranty or consumer guarantee claim:

a)   Customers wishing to return goods for any reason must first obtain a Return Authority form from the Company’s customer service team, details available on the Company’s website.  Returns of goods supplied against Stock Orders will only be accepted with the prior agreement of the Company within seven (7) days of delivery and in standard packs only. The Customer must return the goods at its own expense and accompanied by a duly completed Return Authority form. Goods must be returned and packaged in a condition that the Company considers is suitable for resale.  If the Company approves the return of goods, the invoice price will be credited to the Customer less payment of a re-stocking fee 20% of the invoice price.

b)      Returns of Special Orders will not be accepted.

10.          NOTICE

Any notice will be in writing and will be taken as sufficiently served if delivered at or sent by ordinary pre-paid post or by facsimile or by email to the business address of the Customer or the Company.

11.          APPLICABLE LAW

These Terms will be construed in accordance with the laws of the State of New South Wales for the time being in force and the parties hereto submit to the non-exclusive jurisdiction of the Courts of that state.

12.          WAIVER

The failure of the Company at any time to require performance of any provision of these Terms will not affect in any way the full right of the Company to require such performance at any time thereafter nor will the waiver of a breach of any provision hereof be deemed a waiver of the provision itself or any other provision hereof.

 

 

 
Exafast Pty Ltd
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