- In these Terms unless the contrary intention appears:
- “Additional Charges” includes all delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable by the Customer to TES arising out of the sale of the Goods.
- “Customer” means the person to or for whom the Goods are to be supplied by TES.
- “Goods” means the goods sold to the Customer by TES and includes any services provided by TES to Customer.
- “Intellectual Property” means any patent, registered design, patent, trademark, copy-right, trade secret or any other proprietary right of a third party or parties, registered or unregistered, in any country.
- “TES” means TES-AMM Australia Pty Ltd ABN 20 118 833 346.
- “PPSA” means the Personal Property Securities Act 2009 (Cth)
- “Purchase Price” means the list price for the goods as charged by TES at the date of delivery or such other price as may be agreed by TES and the Customer prior to delivery of the Goods.
2. Quotations and Order for Goods
- 2.1 TES may, upon request, provide to the Customer a quotation for the Goods. The Customer acknowledges that any quotation provided is a non-binding approximation only and in no way creates any legal or contractual obligations on the part of the TES. Unless otherwise All quotations are subject to change by TES at any time.
2.2 An order given to TES is binding on TES and the Customer, if:
2.3 An acceptance of the order by TES is then to be an acceptance of these Terms by TES and the Customer and these Terms will override any conditions contained in the Customer’s order. TES reserves the right to accept a part only of any order by notifying the Customer in writing or by delivering the Goods to the Customer. No order is binding on TES until accepted by it.
2.2.1 a written acceptance is signed for or on behalf of TES; or
- 2.2.2 the Goods are supplied by TES in accordance with the order.
- 2.4 Any quotation containing a provision to supply the Goods “ex stock” is subject to fulfilment of prior orders at the date of acceptance of the Customer’s order.
- 2.5 An order which has been accepted in whole or in part by TES cannot be cancelled by the Customer without obtaining the prior written approval of TES, which it may refuse in its absolute discretion.
3.1 3.1 TES liability is limited to, to the extent permissible by law and at TES’s option;
3.2 TES shall not be liable to any purchaser or any other party for any direct or indirect or consequential injury loss
or damage whatsoever by reason of any delay in delivery whether the same is due to the negligence of TES or
any other party, strike or any other industrial action be it of TES or other party, or any other cause whatsoever.
3.3 TES reserves the right to deliver by instalments if delivery is made by instalments the purchaser shall not be entitled;
3.1.1 in relation to the Goods:
- i. the replacement of the products or the supply of equivalent products
- ii. the repair of the products
- iii. the payment of the cost of replacing the products or of acquiring equivalent products; or
- iv. The payment of the cost of having the products repaired
3.1.2 Where the Goods are services:
- i. the supply of service again; or
- ii. the payment of the cost of having the services supplied again.
- 3.2 Any claims to be made against TES for short delivery of Goods must be lodged with TES in writing within 7 days of the delivery date or collection date (as applicable).
3.3 As soon as any of the facts or matters which form any part of any claim or complaint whatsoever become known to the Customer, the Customer shall within fourteen days notify TES in writing, providing all relevant details.
3.4 To the extent permitted at law, all other warranties whether implied or otherwise, not set out in these Terms are excluded and TES is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate Customer for:
- 3.4.1 any increased costs or expenses;
- 3.4.2 any loss of profit, revenue, business, contracts or anticipated savings;
- 3.4.3 any loss or expense resulting from a claim by a third party; or
- 3.4.4 any special, indirect or consequential loss or damage of any nature whatsoever caused by TES’s failure to complete or delay in completing the order to deliver the Goods.
3.5 TES shall not be liable in any circumstances for any:
- 3.5.1 defects or damages caused in whole or in part by misuse, abuse, neglect, electrical or other overload, nonsuitable lubricant, improper installation, repair or alteration (other than by TES) or by accident.
- 3.5.2 Any transport freight charges, installation, removal, labour or other costs
- 3.5.3 Defects in the Goods not manufactured by it but TES will endeavour to pass on to the Customer the benefit of any claim made by TES and accepted by the manufacturer or such Goods under a warranty given by the manufacturer of such goods.
- 3.5.4 Technical advice or assistance given or rendered by it to the Customer provided always that TES has rendered such services with due care and skill and that any material supplied in connection with those services are reasonably fit for the ordinary purpose for which they are supplied.
- 3.6 Unless expressly stated in writing, TES makes no warranty, representation or statement to the Customer that the Goods supplied will come with a manufacturer’s warranty or warrant against defects.
- 4.1 The times quoted for delivery are estimates only and TES accepts no liability for failure or delay in delivery of Goods. The Customer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery. Goods may be delivered by instalments at the discretion of TES.
- 4.2 Where the Goods are to be collected by the Customer from TES, any delay in collection by the Client shall entitle TES to invoice for storage fees of $10 a pallet per day or as determined by TES.
- 4.3 Risk in accepting the Goods passes on delivery to the Customer.
- 4.4 All Additional Charges are payable by the Customer in addition to the Purchase Price of the Goods.
- 4.5 Return of Goods will not be accepted by TES except by prior agreement in writing with TES. Any Goods returned will be subject to a restocking charge of 10% of the Purchase Price of those Goods.
5. Price and Payment
5.1 The Customer must pay the Purchase Price and the Additional Charges to TES.
5.2 If the Customer is in default, TES may at its option withhold further deliveries or cancel a contract without prejudice to any of its existing rights.
5.3 All payments are due within 14 days of the date of invoice, unless otherwise agreed to by TES. Interest is charged at the rate of 1.5% per month or part of a month from the expiry of that period until the date payment is received by TES. The Customer shall also pay to TES an administration fee of $50.00 on the occurrence of every payment default.
5.4 All amounts payable by the Customer under these Terms must be paid without set-off or counter claim of any kind.
6. Intellectual Property
- 6.1 The Customer must not alter, remove or in any way tamper with any Intellectual Property or serial numbers that appear or are placed on the Goods.
7. Retention of Title
7.1 Ownership, title and property in the Goods and in the proceeds of sale of those Goods remains with TES until payment in full for the Goods and all sums due and owing by the Customer to TES on any account has been made. Until the date of payment:
- 7.1.1 the Customer has the right to sell the Goods in the ordinary course of business;
- 7.1.3 the Goods are always at the risk of the Customer.
7.2 The Customer is deemed to be in default immediately upon the happening of any of the following events:
- 7.2.1 if any payment to TES is not made promptly before the due date for payment;
- 7.2.2 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 TES is dishonoured;
- 7.3 In the event of a default by the Customer, then without prejudice to any other rights which TES may have at law or under this Agreement:
- 7.3.1 TES or its agents may without notice to the Customer enter the Customer’s premises or any premises under the control of the Customer for the purposes of recovering the Goods.
- 7.3.2 TES may recover and resell the Goods;
- 7.3.3 if the Goods cannot be distinguished from similar Goods which the Customer has or claims to have paid for in full, TES 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 TES and the Customer may be ascertained. TES must promptly return to the Customer any goods the property of the Customer and TES 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.
- 7.3.4 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 TES. Such part will be an amount equal in dollar terms to the amount owing by the Customer to TES at the time of the receipt of such proceeds. The Customer will pay TES such funds held in trust upon the demand of TES.
7.4 Separately, Customer hereby charges all its right, title and interest to and in the proceeds of sale of the Collateral (as defined in the PPSA) as original collateral, or any of it, in favour of TES.
- 8. PPSA
8.1 Defined terms in this clause have the same meaning as given to them in the PPSA.
- 8.2 TES and the Customer acknowledge that these Terms constitute a Security Agreement and entitle TES to claim:
- (a) a Purchase Money Security Interest (“PMSI”) in favour of TES over the Collateral supplied or to be supplied to the Customer as Grantor pursuant to these Terms; and
- (b) a security interest over the proceeds of sale of the Collateral referred to in (a) as original collateral.
- 8.3 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.
- 8.4 The Proceeds of sale of the Collateral referred to in clause 8.2(a) falls within the PPSA classification of “Account”.
- 8.4 TES and the Customer acknowledge that TES, as Secured Party, is entitled to register its Security Interest in the Collateral supplied or to be supplied to Customer pursuant to these Terms and in the relevant Proceeds.
- 8.5 To the extent permissible at law, the Customer:
- 8.5.1. 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 to TES.
- 8.5.2 agrees to indemnify TES on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;
- 184.108.40.206 registration or amendment or discharge of any Financing Statement registered by or on behalf of TES; and
- 220.127.116.11 enforcement or attempted enforcement of any Security Interest granted to TES by the Customer;
- 8.5.3 agrees that nothing in sections 130 and 143 of the PPSA will apply to these Terms or the Security under these Terms;.
- 8.5.4 agrees to waive its right to do any of the following under the PPSA:
- 18.104.22.168 receive notice of removal of an Accession under section 95;
- 22.214.171.124 receive notice of an intention to seize Collateral under section 123;
- 126.96.36.199 object to the purchase of the Collateral by the Secured Party under section 129;
- 188.8.131.52 receive notice of disposal of Collateral under section 130;
- 184.108.40.206 receive a Statement of Account if there is no disposal under section 132(4);
- 220.127.116.11 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.
- 18.104.22.168 receive notice of retention of Collateral under section 135;
- 22.214.171.124 redeem the Collateral under section 142; and
- 126.96.36.199 reinstate the Security Agreement under section 143.
- 8.5.5 All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA.
The Customer hereby charges with payment of any indebtedness to TES all beneficial interest (freehold and leasehold) in land and personal property held now or in the future by the Customer. The Customer agrees that if demand is made by TES, the Customer receiving such a demand will immediately execute a mortgage or other instrument of security, or consent to a caveat, as required, and in the event that the Purchaser fails to do so within a reasonable time of being so requested, the Customer hereby irrevocably and by way of security, appoints any credit manager or solicitor engaged by TES to be its true and lawful attorney for the purpose of executing and registration of such instrument.
The Customer agrees that upon the on-sale of any Goods to third parties, it will:
- 10.1.1 inform any third party involved of these Terms;
- 10.1.2 inform any third party of TES’s product warranties if any; and
- 10.1.3 not make any misrepresentations to third parties about the Goods.
11. Trustee Capacity
If Customer is the trustee of a trust (whether disclosed to TES or not), Customer warrants to TES that:
- 11.1 Customer enters into this Agreement in both its capacity as trustee and in its personal capacity;
- 11.2 Customer has the right to be indemnified out of trust assets;
- 11.3 Customer has the power under the trust deed to enter into this Agreement; and
- 11.4 Customer will not retire as trustee of the trust or appoint any new or additional trustee without first advising TES.
To the full extent permitted by law, Customer will indemnify TES and keep TES indemnified from and against any liability and any loss or damage TES may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms by Customer or its representatives.
13. Health and Safety
It is the Customer’s responsibility to ensure that all applicable health and safety regulations are observed and other appropriate steps taken in relation to the storage, handling and use of the Goods and, where information is supplied to the Customer on potential hazards relating to the Goods, to bring such information to the attention of its employees, agents, sub-contractors, visitors and customers. Without prejudice to the forgoing, it is also the Customer’s responsibility to provide safe facilities for the delivery of Goods.
- 14.1 These Terms are to be construed in accordance with the laws from time to time in the State of New South Wales and the Commonwealth of Australia. The parties submit to the non-exclusive jurisdiction of the Courts of New South Wales, Australia and any courts which may hear appeals from those courts in respect to any proceedings in connection with these Terms.
- 14.2 These Terms contain all of the terms and conditions of the contract between the parties and may only be varied by agreement in writing between the parties.
- 14.3 Any conditions found to be void, unenforceable or illegal may, to that extent be severed from the Agreement.
- 14.4 No waiver of any of these Terms or failure to exercise a right or remedy by TES will be considered to imply or constitute a further waiver by TES of the same or any other term, condition, right or remedy.