Terms and Conditions of Trade
1.1All goods supplied to Purchaser by Spandex under a supply contract are supplied on the following Terms and Conditions.
1.2These Terms and Conditions cannot be varied or modified except by an instrument in writing signed by Spandex.
1.3These Terms and Conditions take precedence over any term and conditions contained in any document of Purchaser or elsewhere and any such terms and conditions have no application to or effect on a supply contract.
1.4Without prejudice to any rights accruing to either party under this agreement, either party may terminate this agreement by providing the other party with 30 days written notice.
2.1In the interpretation of this Agreement;
(a) “Goods” shall include services associated with the supply and/or installation of goods
(b)“Purchase Price” means the price of the goods as advised by Spandex
(c)“Purchaser” means any person, firm or corporation including his successors administrators and assigns who or which has requested the supply of goods by Spandex;
(d)“Quotation” means a quotation provided by Spandex to Purchaser
(e)“Spandex” means either of the following registered company’s within the Spandex Corporate Group; Spandex Pty Ltd (ABN 55 088 162 038) , or Plas Image Pty Limited (ABN 82 091 597 812) or Spandex Australia Holdings Pty Limited (ABN 58 152 606 445), who trade as either ‘Spandex’ or ‘Qualsign’ or ‘Plas Image’, as listed on the quotation provided to you.
2.2In this Agreement, unless the subject or context otherwise requires:
(a)the word, “person” shall include corporation;
(b)Words importing the singular number shall be deemed to include the plural and vice versa.
(c)a reference to any gender includes all genders;
(d)a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
3.OFFER AND ACCEPTANCE
3.1Any quotation made by Spandex is not an offer to sell or to provide services.
3.2Spandex shall not be bound by any order given in pursuance of any quotation until it is accepted in writing by Spandex or by the commencement of supply of goods or the provision of services.
3.3Unless otherwise agreed in writing, all orders are subject to acceptance by Spandex within 30 days of receipt by Spandex of the order.
4. WARRANTIES AND EXCLUSIONS
4.1All express or implied terms, conditions, warranties, statements, assurances and representations in relation to any goods ordered from Spandex are hereby excluded from a supply contract save for:
(a)these Terms and Conditions;
(b)the conditions and warranties necessarily implied under the law of the relevant State and the provisions of the Competition and Consumer Act 2010 (Cth) and any statutory modification or re-enactment thereof; and
(c)any other terms and conditions to which Spandex agrees in writing to be bound.
4.2Any liability of Spandex which is not excluded by clause 4.1 is limited to the extent permitted by law to such one or more of the following as determined by Spandex in its absolute discretion:
(a)with respect to the supply of goods:
(i)the replacement of the goods or the supply of equivalent goods;
(ii)the repair of the goods; or
(iii)the payment of the cost of replacing the goods or of
(iv)acquiring equivalent goods; or
(v)the payment of the cost of having the goods repaired;
(b)with respect to the supply of services:
(i)the re-supply of the services; or
(ii)the payment of the cost of having the services re-supplied.
4.3Purchaser acknowledges that except for these terms and conditions, Spandex does not give or make any warranty assurance, promise or representation regarding the quality, fitness for use, suitability or merchantability of goods for any purpose whatsoever, and that in entering into the supply contract Purchaser has relied entirely on Purchaser’s own knowledge, skill and judgement.
5.1Any date quoted for delivery is an estimate only and, unless a guarantee shall have been given by Spandex in writing providing for liquidated damages in the case of Spandex’s failure to deliver by the quoted date, Spandex shall not be liable to the Purchaser for any loss or damage howsoever arising even if arising out of negligence of Spandex for failure to deliver on or before the quoted date.
5.2The Purchaser shall accept and pay for goods if and when tendered notwithstanding any failure by Spandex to deliver by the quoted date. Written advice to the Purchaser that goods are ready for delivery whether in whole or in part shall constitute tendering and the terms of payment shall apply.
5.3A quantity, description, date, and place of delivery of goods as indicated on Spandex’s invoice or delivery docket or copies thereof (“the consignment note”) shall be conclusive evidence of quantity, description, date, and place of delivery of the goods. Purchaser warrants that the person who signs the delivery notice is authorised to receive the goods on behalf of Purchaser
5.4Spandex shall not be liable to any Purchaser or any other party for any delay in delivery whether the same is due to the negligence of Spandex or any other party, strike or any other industrial action be it of Spandex or other party, or any other cause whatsoever.
5.5Spandex reserves the right to deliver by instalment. If delivery is made by instalments, the Purchaser shall not be entitled to:
(a) Terminate or cancel the contract: or
(b) Any claim, loss or damage howsoever arising for failure by Spandex to delivery any instalments on or before the quoted dates.
5.6It is agreed that Spandex shall not be responsible for delay in manufacture or delivery caused, in any way incidental, by act of God, war, fire, breakages or machinery or strikes or arising out of any other unexpected or exceptional cause, or any cause beyond Spandex’s reasonable control.
5.7Any quotation containing a provision to supply goods “ex stock” is subject to fulfilment of prior orders at the date of receipt of the Purchaser’s order.
5.8Unless otherwise agreed in writing, payment terms are net cash 30 days from the end of the month in which the goods are invoiced to the Purchaser.
5.9Time is of the essence in relation to all payment term obligations of the Purchaser set out in these terms and conditions.
6.1Notwithstanding the delivery of the goods or part thereof, the goods remain the sole and absolute property of Spandex as full legal and equitable owner until such time as the Purchaser shall have paid Spandex the full purchase price together with the full price of any other goods the subject of any other contract with Spandex.
6.2The Purchaser acknowledges that he receives possession of and holds goods delivered by Spandex solely as bailee for Spandex until such time as the full price thereof is paid to Spandex together with the price of any other goods then the subject of any other contract with Spandex.
6.3Until such time as the Purchaser becomes the owner of the goods, he will:
(a)Store them on the premises separately;
(b)Ensure the goods are kept in good and serviceable condition;
(c)Secure the goods from risk, damage and theft;
(d)Keep the goods fully insured against such risks that are usual or common to insure in a business of a similar nature to that of the Purchaser.
(e)Irrevocably appoints Spandex its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of a charge or charges in favour of Spandex with respect to the goods under the Corporations Law;
6.4Where Purchaser makes a new object from the goods, whether finished or not, or Purchaser mixes the goods with other goods or the goods become part of other goods (“new goods”), Purchaser agrees with Spandex:
(a)that the ownership of the new goods immediately passes to Spandex;
(b)that until payment of all sums owing to Spandex whether under the supply contract or any other contract Purchaser will hold the new goods on trust for Spandex; and
(c)if required by Spandex, to store the new goods in a manner that clearly shows the ownership of Spandex.
6.5Until the goods are paid for in full, Spandex authorises the Purchaser to sell the goods as its agent. However, the Purchaser shall not represent to any third parties that it is acting in any way for Spandex. Spandex will not be bound by any contracts with third parties to which the Purchaser is a party.
(a)Records shall be kept by the Purchaser of any goods owned by Spandex.
(b)The proceeds of any sale of the goods shall be paid into a separate account and held in trust for Spandex. The Purchaser shall account to Spandex for the price of the goods.
(c)Should the Purchaser die, stop payment or call a meeting of its creditors or become insolvent or subject to the bankruptcy laws or, being a company, calls a meeting for the purpose of or to go into liquidation or has a winding-up petition presented against it or has a receiver or administrator appointed, Spandex may, at its option, notwithstanding its waiver of such default or failure and without prejudice to its other rights under this contract or require payment in case before or on deliver or tender goods or documents not withstanding terms of payment previously specified or may repossess and take over the goods and dispose of same in its own interest without prejudice to any claim it may have for damages for any loss resulting from such resale.
6.6If the Purchaser does not pay for any goods on the due date, then Spandex is hereby irrevocably authorised by the Purchaser to enter the Purchaser’s premises (or any premises under the control of the Purchaser in which the goods are stored at such premises) and use reasonable force to take such possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Purchaser whatsoever.
6.7On retaking possession of the goods, Spandex may elect to refund to the Purchaser any payment that may have been made and to credit the Purchaser’s account with the value of the goods less any charge for recovery of the goods, or to resell the goods.
Unless otherwise agreed in writing, risk in the goods shall pass to the Purchaser at the time when the goods have been placed on the vehicle which is to effect delivery from Spandex store or warehouse. The goods shall remain at the Purchaser’s risk at all times unless and until Spandex retakes possession of the goods pursuant to these terms and conditions.
8.CLAIMS AND EXCLUSIONS
8.1Subject only to clause 4 herein, Spandex shall not be liable for any loss or damage whatsoever and howsoever arising, whether direct, indirect or consequential or in respect of any claim whenever and however made for any loss or damage, deterioration, deficiency or other fault or harm in the goods manufactured, work executed or services provided by or on behalf of or in any arrangement with Spandex or occasioned to the Purchaser or any third or other party or his or their property or interest and whether or not due to the negligence of Spandex, its servants or agents.
8.2As soon as any of the facts or matters which form any part of any claim or complaint whatsoever become know to the Purchaser, the Purchaser shall, within fourteen days, notify Spandex in writing of the same.
8.3Spandex shall not be liable in any circumstances for any:
(a)Defects or damages caused due to, entirely or in part, misuse, abuse, neglect, electrical or other overload, non-suitable lubricant, improper installation, repair or alteration (other than by Spandex) or accident.
(b)Transport, insulation, removal, labour or other costs;
(c)Defects in goods not manufactured by it. However Spandex will endeavour to pass on to the Purchaser the benefit of any claim made by Spandex and accepted by the manufacture of such goods under warranty given by the manufacturer of such goods..
(d)Technical advice or assistance given or rendered by it, to the Purchaser, or not, in connection with the manufacture, construction or supply of goods for or to the Purchaser, provided always that Spandex has rendered such services with due care and skill and that any material supplied in connection with those services are reasonably fit for the purchase for which they are supplied.
8.4The exemptions, limitations, terms and conditions in these terms and conditions shall apply whether or not the loss or damage is caused by negligence or actions constituting a fundamental breach of contract.
If by reason of any fact, circumstance, matter or thing beyond the reasonable control of Spandex, then Spandex is unable to perform in whole or in part any obligation under this agreement, Spandex shall be relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and shall not be liable to the Purchaser in respect of such liability.
Upon the occurrence of default by the Purchaser in compliance with the terms herein:
10.1Spandex may, at its discretion, withhold further supplies of goods or cancel this agreement or vary the terms of this without prejudice to its rights hereunder PROVIDED HOWEVER that Spandex may, at any time and from time to time upon such terms as it may determine, waive any of its rights under this clause, but without prejudice to its rights thereafter of any of the events hereinbefore referred to or upon the continuation after any such waiver of any state of affairs the subject of such waiver.
10.2The Purchaser shall pay to Spandex interest at the rate of 2% per month on daily balances in respect of any amounts as may from time to time be overdue and until paid and such money together with all interest shall be recoverable forthwith from the Purchaser.
10.3Without prejudice to any other right or remedy, the Purchaser shall indemnify Spandex against any costs, fees, charges and disbursements charged by any solicitor engaged for the purpose of the collection or recovery of monies due and payable by the Purchaser to Spandex on any indemnity basis.
10.4The Purchaser shall pay to Spandex an administration fee of $50.00 on the occurrence of every event of default.
10.5Each of the following occurrences constitutes an event of default:
(a)Purchaser breaches or is alleged to have breached a supply contract for any reason (including, but not limited to, defaulting on any payment due under a supply contract);
(i)being a natural person, commits an act of bankruptcy; or
(ii)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 Buyer 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 Buyer’s property and undertaking;
(C)the entering of a scheme of arrangement (other than for the purpose of restructuring); or
(D)any assignment for the benefit of creditors; or
(c)Purchaser ceases or threatens to cease conduct of its business in the normal manner.
The Purchaser hereby charges with payment of any indebtedness to Spandex all beneficial interest (freehold and leasehold) in land and personal property held now or in the future by the Purchaser. The Purchaser agrees that, if demand is made by Spandex, the Purchaser receiving such a demand immediately execute a mortgage or other instrument of security, or consent to a caveat, as required, and against the event that the Purchaser fails to do so within a reasonable time of being so requested, the Purchaser hereby irrevocably and by way of security, appoints any credit manager or solicitor engaged by Spandex to be its true and lawful attorney to execute and register such instruments.
12.PERSONAL PROPERTY SECURITIES ACT REGISTRATION
12.1In this clause the Act means the Personal Property Securities Act 2009;
12.2(a) Spandex may request in writing at its absolute discretion, that the Purchaser register a security interest of Goods provided as Collateral under the Act, and upon making such request the Purchaser must:
(i)validly register Spandex’s security interest on the PPS register; and
(ii)ensure that it takes all necessary steps under the Act to obtain the highest ranking priority possible, maintain continuous perfection (including perfection by control) and protection of Spandex’s security interest over the Product; and
(b)without limiting clause 13.2(a) perfect and maintain continuous perfection of any Security Interest that it may at any time hold.
12.3Clause 13.2(a) is not to be construed as negating or limiting and does not negate or limit any rights of Spandex under section 53(2) of the Act.
12.4Any ownership in the Collateral does not pass to the Purchaser until all moneys due and payable to Spandex by the Purchaser have been fully paid.
12.5Until ownership of the Collateral passes to the Purchaser, the Purchaser waives its rights under the following provisions of the Act, to the extent that it is permitted to by law to:
(a)receive a notice of intention of removal of an accession (s.95);
(b)receive a notice that Spandex has determined to enforce its security interest in accordance with land law (s.118);
(c)receive a notice of enforcement action against liquid assets;
(d)receive a notice of disposal of goods by Spandex purchasing the goods (s.129);
(e)receive a notice to dispose of the goods (s.130);
(f)receive a statement of account following disposal of the goods (s.132(2));
(g)receive a statement of account if no disposal of the goods, six monthly (s.152(4));
(h)receive notice of any proposal by Spandex to retain the goods (s.135(2));
(i)object to any proposal by Spandex to either retain and dispose of the goods (s.137(3));
(j)redeem the goods (s.142);
(k)reinstate the security agreement (s.143); and
(l)receive a notice of any verification statement (s.157(1) and 157(3)).
12.6Purchaser acknowledges and agrees that to the extent permitted by the Act; these terms exclude any provisions of the Act which may be excluded in Spandex’s discretion and which would otherwise confer rights on the Purchaser.
12.7The Purchaser acknowledges and agrees that where Spandex has rights in addition to those under Part 4 of the Act, those rights shall continue to apply.
12.8The Purchaser acknowledges and agrees that its right to possession of Collateral still owned by Spandex under these terms shall cease if:
(a)In the case of the Purchaser being a Company, circumstances arise where a receiver, manager, administrator or controller becomes entitled to take possession of any of its assets, any proceedings are instituted for winding up, or the Purchaser enters into a Deed of Company Arrangement; or
(b)the Purchaser ceasing or threatening to cease conducting business in the normal manner or applying for deregistration or receives a deregistration notice; or
(c)the Purchaser fails to comply with any demand for payment issued by Spandex; or
(d)the Purchaser breaching any of the terms contained herein and/or are in default of any other agreement between Spandex and the Purchaser.
12.9The Purchaser, until ownership of the Collateral passes, must not give Spandex a written demand or allow any other person to give Spandex a written demand requiring the Purchaser to register a financing change statement under the Act or enter into or allow any other person to enter into The Personal Property Securities Register a financing change statement under the Act.
12.10The Purchaser agrees not to change its name, or allow a change of 50% or more to the control or beneficial ownership of itself, or undertake any changes to any documents that Spandex has registered, requires to be registered or are capable of being registered, without the prior written consent of Spandex.
13.1GST has the meaning given in the GST Act
13.2Unless otherwise provided in this Agreement, any moneys payable including the Purchase Price have been calculated without regard to GST.
14.1Orders with net value* of over $300.00 will be shipped “freight free” by Spandex’s choice of freight company, excluding air freight.
14.2Orders under the net value* of $300.00 will have a delivery charge of $15 for all metro and local deliveries, $21.50 for all regional deliveries.
14.3Orders under the net value* of $50 will have a delivery charge of $15 for all metro and local deliveries, $21.50 for all regional deliveries. A $10 small order surcharge will also be applied.
14.4A $10 surcharge will also apply to all pick up in branch orders for non Spandex account holders.
14.5A separate surcharge of $15 will be payable for the shipment of any dangerous goods on all orders.
14.6A freight charge of $39.50 will be payable per delivery for the shipment of any rigid substrates on all metro orders.
14.7Delivery of any rigid substrates into regional areas will be on a “quote” basis.
14.8For orders under the qualifying “freight free” the following freight charges will be added to your invoice as described above and accordingly:
(a)Local and intrastate road freight. Area categories include;
(i)Melbourne, Brisbane, Adelaide
(ii)Perth, Launceston, Hobart
(iii)Victoria, Queensland or South Australia country areas
(iv)Western Australia, Tasmania, Northern Territory country areas
(Contact your local branch for price details)
(b)Express freight (limited service) upon your request.
(c)CTI Parcel charges upon your request
(d)Express / Urgent Courier charges upon your request
(e)Additional costs for large items (including Sheets and Pallets)
(f)Air freight upon your request.
*Net value refers to purchases excluding GST
15.1These Terms and Conditions of Trade and any interpretation or construction of them shall be governed by the Laws of New South Wales in force for the time being and from time to tem and the parties bound by these Terms and Conditions of Trade irrevocably submit generally and unconditionally to the jurisdiction of the Local and District Courts at Parramatta, New South Wales, and the supreme Court of New South Wales at Sydney in respect of all claims, proceedings and matters arising out of or in respect of these Terms and Conditions of Trade.
16.1If any provision of this agreement at any time be or become void, voidable or unenforceable, the remaining provisions of this agreement shall nevertheless continue to be in full force and effect.
16.2Every stipulation of this contract is independent of the others and has substantive effect.
17.1These conditions of sale and any variation expressed in writing by Spandex to Purchaser represent the whole agreement between the parties relating to the subject matter of these terms and supersedes all oral and written negotiations and communications by and on behalf of either of the parties. Purchaser has not, in entering into this agreement, relied on any warranty, representation or statement, whether oral or written, made or published by Spandex or any of its servants or agents relating to or in connection with the subject matter of this agreement.