Terms and Conditions of Sale
- any order placed by a purchaser is deemed to be an order incorporating these terms and conditions notwithstanding any inconsistencies which may be introduced in the purchaser’s order or acceptance unless expressly agreed to by Cutting Edges Equipment Parts Pty Limited (the “Company”) in writing.
Quotations and Prices
- the prices quoted are based on the Company’s estimated cost of production, manufacture or supply at the time of quotation and are subject to alteration without notice to the purchaser
due to any increase in the Company’s costs between the date of quotation and the date or dates of delivery. Unless otherwise expressly agreed by the Company in writing all goods will be charged for at the prices ruling at the date or dates of delivery. All prices quoted are exclusive of GST which, if applicable will be for the purchaser’s account. All prices are expressed in Australian dollars and unless expressly stated otherwise, prices quoted are for delivery ex the Company’s works (EXW, as that term is defined in Incoterms 2010). A quotation is not an offer by the Company to sell and may be withdrawn without notice; any order given in respect of a quotation is not binding on the Company until accepted by the Company in writing. Telephone orders should be confirmed in writing.
- orders accepted by the Company may not be cancelled or altered in whole or in part without the Company’s written consent. The Company may decline by written notice to the purchaser, any order in whole or in part, at any time prior to delivery of the goods or performance of the services, in which case the Company will be under no obligation in respect of the order.
Terms of Payment
- net cash 30 days from date of invoice, but the Company reserves the right to vary the terms of payment and to require payment in cash in full prior to delivery should the creditworthiness of
the purchaser at any time become in the Company’s opinion unsatisfactory. The Company may charge 2% per month on the outstanding balance of accounts not paid within 30 days of invoice date.
Quality Assurance - dimensional tolerance of any goods supplied to the purchaser will be as specified by the Standards Association of Australia unless the Company has provided otherwise in the relevant quotation
or the contract.
- any claim by the purchaser for short or wrongful delivery of the goods MUST BE NOTIFIED TO THE COMPANY IN WRITING WITHIN 14 DAYS after delivery of the goods to the purchaser and any claim
which the purchaser does not notify within the time aforesaid (time being of the essence) shall be deemed to have been absolutely waived. No claim may be made in respect of any goods which, since supply by the Company to the purchaser, have been modified, welded or altered in any way. Return of Goods - The Company may accept goods for return at its sole discretion. A restocking fee may be charged on any goods accepted for return. Claims in respect of any manufactured goods may be subject to examination by the original supplier of the goods to the Company. Where any goods supplied by the Company have been used in any form of demolition work or tree-felling or where such goods have been misused by the purchaser or any other person, no claim may be made against the Company
- any description of the goods is given by way of identification only and the use of such description shall not constitute the contract a sale by description.
- it is hereby acknowledged by the Company that, under applicable State, Territory and Commonwealth law, certain conditions and warranties may be implied in the contract between the Company
and the purchaser and rights and remedies conferred upon the purchaser and other parties in relation to goods or services which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”). The limitations below are subject to these Non-excludable Rights. Subject to the foregoing, the Company disclaims all conditions and warranties expressed or implied, and rights and remedies conferred on the purchaser or other parties, by statute the common law equity trade custom or usage or otherwise howsoever and all such conditions and warranties and such rights and remedies are hereby expressly excluded other than any Non-excludable Rights. Where so permitted the liability of the Company for a breach of a Non-excludable Right is limited, at the Company’s option, in the case of goods, to the replacement or repair of the goods or the supply of equivalent goods or the cost of replacing or repairing the goods or of acquiring equivalent goods and, in the case of services, to the supplying of the services again or the payment of the cost of having the services supplied again.
- subject to clause 8, in no event shall the Company be liable (whether before or after discharge of the contract or otherwise) for any loss or damage to the purchaser arising from
or caused or contributed to by negligence of the Company, its servants or agents, nor shall the Company be liable for special, incidental, indirect or consequential loss or damage suffered by the purchaser as a result of a breach by the Company of its obligations or otherwise including but not limited to economic loss, loss of profits or revenue or costs arising from such breach.
- Subject to clause 8, the purchaser shall indemnify and keep indemnified and hold the Company harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by the
Company, and from and against all actions, proceedings, claims or demands made against the Company, arising from any of the following:
- (a) as a result of the purchaser’s failure to:
- (i) ensure that any safety markings on the goods are adequately displayed;
- (ii) comply with any legislation as to the labeling or marking of goods;
- (iii) take any other reasonable precautions either to bring to the attention of any potential users of the goods any dangers associated with the goods, or to detect any matters in relation to which the Company may become liable, including, without limitation, liability under Part VA of the Trade Practices Act; or
- (iv) otherwise comply with any laws, rules, standards or regulations applicable in relation to the goods or the use of the goods;
- (b) as a result of any other negligence or other breach of duty by the purchaser; or
- (c) as a result of any compliance or adherence by the Company with any instructions of the purchaser in relation to the goods or their manner of fabrication.
- unless otherwise expressly agreed by the Company in writing the goods will be delivered ex-works (EXW as defined in Incotterms 2010). Any time quoted for delivery is an estimate only and the Company shall not be liable for any loss or damage howsoever arising as a result or consequence of any failure to deliver or delay in delivery arising from any circumstances of whatsoever nature including in particular but without limiting the generality of the foregoing fire, flood, explosion, strike, lock-out or other industrial act or dispute or the break-down of or accident to plant, unavailability or shortage of raw materials, labour, power supplies or transport facilities or failure or inability to obtain licences or act of God or any order or direction of any Local, State or Federal Government or Government authority or instrumentality. If the Company determines that it is or may be unable to deliver within a reasonable time or at all the contract may be cancelled by the Company. In the event of cancellation the purchaser shall have no claim against the Company for any damage loss cost or expense whatsoever. The purchaser shall not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery.
Property and Risk -
- (a) Property in the goods shall not pass from the Company to the purchaser until:
(i) the amount owing to the Company from the purchaser in respect of such goods has been paid in full; and
- (ii) to the extent permissible by law, all other monies or debts outstanding from the purchaser to the Company on any account have been paid in full. The risk of loss of or damage to the goods shall pass to the purchaser on delivery in accordance with clause 11.
- (b) Until such time as property in the goods passes to the purchaser in accordance with clause 12(a), the purchaser agrees to store the goods separately and mark them so as to render them identifiable as being or being made from or with goods which are the property of the Company.
- (c) Should the goods (or any part of them) be converted into or incorporated in a new product or products (the “new products”) whether or not the admixture of any other goods or thing whatsoever and in whatever proportions is involved, the conversion or incorporation (as the case may be) shall be deemed to have been effected on behalf of the Company and the new products shall be the property of the Company. The right of the purchaser to convert or incorporate the goods in a new product or products shall automatically cease if a receiver or receiver and manager is appointed over any of the purchaser’s assets or if a winding up order is against or a resolution is passed for the winding up of the purchaser or if the Company at any time revokes such rights by notice to the purchaser.
- (d) The purchaser shall have no right to sell or otherwise dispose of the goods or the new products until the price of the goods has been paid in full to the Company unless the goods or the new products are sold in the ordinary course of the purchaser’s business, and that part of the proceeds of sales of the goods and the new products as represents the price of the goods shall be paid forthwith to the Company and until such part of the proceeds are so paid, they shall be held by the purchaser in trust for the Company. The power of sale hereby conferred on the purchaser shall automatically cease if a receiver or receiver and manager is appointed over any of the purchaser’s assets or if a winding up order is made against or a resolution is passed for the winding up of the purchaser of if the Company at any time revokes the power of sale by notice to the purchaser.
- (e) Upon determination of the purchaser’s power of sale under (d) above, the Company shall become entitled to possession of the goods and the new products. The purchaser shall place the goods and the new products at the disposal of the Company who shall be entitled to enter upon any premises of the purchaser and remove the goods and the new products.
- (f) The purchaser grants to the Company, upon the Company giving notice to the purchaser, the right to bring proceedings in the name of the purchaser to recover monies owing to the purchaser as a result of sales of the goods or the new products. Any amounts recovered as a result of such proceedings shall be retained by the Company in payment of amounts owing for goods supplied by the Company to the purchaser.
- (g) The Security Interest (as defined in clause 24 below) created under this clause extends to any proceeds of the sale of the goods (including without limitation cash and receivables), and any new products.
Performance and Representations
- the purchaser acknowledges that, save to the extent required by law, neither the Company nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in writing whether as to the fitness of the goods for any particular purpose or any other matter.
- the Company reserves the right to deliver by instalments and each instalment shall be deemed to be sold under a separate contract. Failure of the Company to deliver any instalment shall not entitle
the purchaser to cancel the balance of the order. In the event of the purchaser making default in respect of any instalment, the Company may elect to treat the default as a breach of contract relating to each other
Default In Payment
- the Company will treat any default by the purchaser in payment of any monies due to the Company as a breach of these terms and conditions. The Company will thereupon cease work on
the relevant order and all other orders placed by the purchaser and hold all the purchaser’s work until the due payment or payments are made. Recurring payment default will lead to the purchaser’s account with the Company being closed and any further order placed by the purchaser and accepted by the Company will only be processed when prepaid for by bank cheque. Any costs incurred by the Company in the recovery of any default payment will be paid by the purchaser.
- failure by the Company to insist upon strict performance of any term, warranty or condition of the contract shall not be deemed as a waiver thereof or of any rights the Company may have and no express
waiver shall be deemed a waiver of any subsequent breach of any term, warranty or condition.
- the purchaser acknowledges that the goods are not of a kind ordinarily acquired for private use or consumption.
Intellectual Property Rights
- the purchaser warrants that any design or instruction furnished to the Company shall not be such as will cause the Company to infringe any intellectual property rights (patents,
registered designs, trade marks, copyright, confidential information and the like) in the execution of the purchaser’s order and the purchaser agrees to indemnify the Company against any infringement or unauthorised use of intellectual property rights arising out of the manufacture or use of the goods and it is specifically agreed that the sale and purchase of the goods does not confer on the purchaser any licence or rights under any intellectual property rights which is the property of the Company. The Company shall in no way whatsoever be responsible for the purchaser’s tools, dies, jigs, goods and property which shall be received and stored by the Company at the purchaser’s risk. Unless expressly agreed to the contrary, the Company will manufacture in accordance with accepted tolerance standards.
- any inspection or test agreed upon prior to acceptance of the goods by the purchaser must, unless otherwise agreed, be carried out at the Company’s works. In the event of any specialised inspection
being required or special tests prescribed by the purchaser, the cost shall be to the purchaser’s account. In the case of any such inspection, the Company accepts no responsibility for any defects in the goods or services which are identified once the goods in question have left the Company’s site.
Instructions by the Purchaser
- the purchaser shall indemnify the Company from and hold it harmless against all losses, expenses or liability whatsoever of or incurred by the Company as a result of compliance
or adherence by the Company with any instruction of the purchaser in relation to the goods or services.
Permits and Notices
- it shall be the purchaser’s responsibility to obtain all necessary notices and permits and to pay all fees required by legislation, regulations or by-laws unless otherwise agreed in writing.
- the Company reserves the right to subcontract the production, manufacture or supply of the whole or any part of the goods or of any materials or services to be supplied.
- any notice to be given by the purchaser to the Company shall be sent to the Company’s address. No notice shall be deemed to have been given until it is actually received at such address. It is agreed that if any provision of these terms and conditions should be determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provision hereof, and each such other provision shall remain in full force and effect. Contracts shall be governed by and construed in accordance with the laws of New South Wales.
PPSA and security –
- (a) In this clause 24, “PPSA” means the Personal Property Securities Act 2009 (Cth), “Security Interest” has the meaning given in the PPSA, and all section references are references to sections of the PPSA.
- (b) This clause 24 applies to the extent that the PPSA applies to these terms and conditions of sale from time to time, and only to the extent permitted by the PPSA.
- (c) Upon consenting to these terms and conditions of sale, by placing an order with the Company or by accepting supply from the Company, the purchaser acknowledges and agrees that:
- (i) without limiting clause 12, the purchaser grants a Security Interest, by virtue of the retention of title provisions set out in clause 12 to all goods supplied by the Company to the purchaser and the proceeds of sale of such goods (including without limitation cash and receivables;
- (ii) such Security Interest is a PMSI (as defined in the PPSA);
- (iii) notwithstanding the payment of part or all of the purchase price relating to the goods under any one invoice, a Security Interest exists in all present and after acquired goods until the Security Interest is discharged in writing by the Company; and
- (iv) the purchaser will not do, or omit to do, or allow to be done or omitted to be done, anything which might adversely affect any Security Interest in goods supplied by the Company.
- (d) The purchaser acknowledges, agrees and undertakes (as the case may be) to:
- (i) sign any further documents and/or provide any further information (which information the purchaser warrants to be complete, accurate and up to date in all respects) which the Company may reasonably require to register a financing statement or financing change statement on the Personal Properties Securities Register (as defined in the PPSA) or in connection with the issue of a verification statement;
- (ii) irrevocably appoints the Company to be the purchaser’s attorney to do anything which the attorney thinks desirable to protect its interests in respect of a Security Interest, and the purchaser will take all steps required to ratify anything done by the attorney under this clause;
- (iii) not register or apply to register a financing statement or financing change statement which is in any way connected with the goods supplied by the Company without the Company’s prior written consent, which may be given or withheld in the Company’s absolute discretion;
- (iv) upon demand, meet the Company’s costs in relation to registering a financing statement or financing change statement, releasing any financing statement on the Personal Property Securities Register and enforcing the Company’s Security Interest, including its legal costs, on a solicitor client basis; and
- (iii) give the Company not less than 14 days prior written notice of any proposed change in the purchaser’s name or other details (including but not limited to address, location, nature of business, ownership, facsimile or phone number).
- (e) The purchaser waives its right under section 157 of the PPSA to receive notice of any verification statement relating to the registration of any such financing statement or any related financing change statement.
- (f) The purchaser and the Company agree not to disclose information of the kind mentioned in section 275(1) of the PPSA except in the circumstances required by sections 275(7)(b) to (e) of the PPSA. Nothing in this clause 24 will prevent any disclosure by the Company that it believes is necessary to comply with its other obligations under the PPSA or at law.