Terms and Conditions
1. In these Terms and Conditions of Sale, the words:
“Agreement” means the agreement between the Supplier and Customer for the supply of Goods and Services by the Supplier to Customer and comprises these Terms and Conditions of Sale, the Credit Terms and any Quotation.
“Credit Terms” means the credit terms pursuant to which the Supplier has agreed to provide Goods and Services to Customer on credit, and includes the credit application submitted by Customer.
“Customer” means the party to whom the Supplier has agreed to supply Goods and perform Services pursuant to this Agreement.
“Goods” means the goods agreed to be purchased by Customer from the Supplier pursuant to this Agreement.
“GST” has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or, if that Act does not exist means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act.
“Guarantee” means the guarantee deed poll provided by a person to the Supplier to guarantee the performance of this Agreement by Customer.
“Proprietary Information” means any and all information, know-how, confidential information and intellectual property relating to the Goods or Services including patents, designs, drawings, instruction booklets, specifications, circuit drawings, componentry, trade secrets, trademarks and copyright in such information and intellectual property.
“Purchase Order” means a written purchase order by Customer to the Supplier for the supply of the Goods and Services under this Agreement.
“Quotation” means any quotation provided by the Supplier to Customer under clause 2.
”Services” means the services agreed to be performed or provided to Customer by the Supplier under this Agreement, including parts supply, parts and labour or labour only.
“Supplier” means United Safety & Survivability Corporation Pty Limited ACN 111 780 995.
2. Subject to clause 7, quotations from the Supplier for Goods and Services must be provided in writing to Customer and are valid for a period of 30 days from the date of issue or as otherwise specified in the quotation.
3. Prices given by the Supplier in any Quotation are applicable to that Quotation only, and will not apply in any other instances. A Quotation from the Supplier is not an offer to sell.
4. In order to purchase the Goods and Services, Customer must place a Purchase Order with the Supplier setting out an order number, the Supplier’s Quotation number (if applicable), a full description of the Goods and Services to be purchased, the delivery date, delivery point and any other information required by the Supplier. The Supplier may accept or reject the Purchase Order at the Supplier’s absolute discretion. If the Supplier accepts a Purchase Order, it will notify Customer in writing. If Supplier rejects a Purchase Order, it may notify Customer of the reasons for its rejection, and Customer may re-submit a Purchase Order, which the Supplier may accept or reject in the Supplier’s absolute discretion.
5. A contract will be formed when the Supplier accepts a Purchase Order from Customer pursuant to clause 4 and each such contract will be deemed to be on the terms of this Agreement.
6. Any conditions or terms of purchase submitted by Customer deviating from or inconsistent with this Agreement, including any terms on a Purchase Order, will not bind the Supplier, despite any statement by Customer in its Purchase Order or otherwise that its terms and conditions prevail over this Agreement. This Agreement will take precedence over any other representations, agreements, arrangements or understandings relating to the Goods and Services.
7. If the Goods or Services to be supplied involve the provision of raw materials, the price and availability of which is unpredictable, and there is a lack of available such raw material either to enable the Supplier to supply the Goods or Services or to supply the Goods or Services at the price stated in the Purchase Order, the Supplier may, at its absolute discretion:
(a) expend additional time to make reasonable efforts to attempt to locate substitute raw material, and if raw material cannot be located, serve notice of immediate termination of the Purchase Order, in whole or in part;
(b) endeavour to reach agreement with Customer on an increase in the purchase price for the Goods or Services to reflect the increased cost, and if agreement cannot be reached by the parties, either party may serve notice of immediate termination of the Purchase Order, but only to the extent related to the affected Goods or Services; or
(c) serve notice of immediate termination of the Purchase Order, in whole or in part.
8. In no case will the Supplier have any liability to Customer as a result of any termination under clause 7, but Customer must pay to the Supplier the price of the Goods and Services actually supplied under the Purchase Order.
9. Unless otherwise agreed in writing, the Supplier accepts Purchase Orders subject to the condition that Customer agrees to pay the purchase price appearing on the Supplier’s price list for those Goods and Services current as at the date that the Supplier accepts the Purchase Order, as provided to Customer from time to time. All prices on the Supplier’s price list are subject to alteration.
10. The total purchase price, unless otherwise stated in the Purchase Order, includes GST but does not include any delivery charges, packaging, freight, assembly costs, installation costs, costs and charges of third party suppliers such as electricians, insurance or any statutory, sales, excise, or other taxes, duties or imposts, all of which may be, at the Supplier’s election:
(a) added to the purchase price following notification of these additional costs to Customer;
(b) directly paid by Customer and Customer must notify the Supplier of any costs it has directly paid; or
(c) paid by the Supplier and immediately reimbursed by Customer to the Supplier if clauses 10(a) or 10(b) do not apply.
11. Unless otherwise agreed in writing, the Supplier will invoice Customer:
(a) in advance of any Goods and Services being provided, if the Supplier has not approved Customer’s credit application or if the Credit Terms permit Supplier to require payment in advance;
(b) in respect of the Services, immediately after the Services are provided; and
(c) in respect of the Goods, on delivery.
12. The Supplier may, at its election, raise invoices under clause 11 for progress claims for Goods delivered and Services provided under a Purchase Order irrespective of whether all of the Goods and Services under that Purchase Order have been supplied.
13. If Supplier does not require advance payment by Customer, Customer must pay the amount specified in the Supplier’s invoice, in full, within 30 days after the end of the month shown on the date of the invoice or otherwise as required under Customer’s Credit Terms.
14. Customer must not set off any money owing or alleged to be owing by the Supplier against money due by Customer to the Supplier. If Customer does not pay any invoice, in full, by the due date for payment, and without prejudice to any other rights which the Supplier may have against Customer, the Supplier may require Customer to pay interest at the Westpac Indicator Lending Rate effective from time to time plus 4% per annum calculated from the due date on daily balances of amounts unpaid until the date full payment is received as cleared funds.
15. Customer may not alter or cancel a Purchase Order which has been accepted by the Supplier without the Supplier’s prior written consent. If the Supplier agrees to alter or cancel the Purchase Order, Customer will indemnify the Supplier against any direct and indirect loss, damage and expense incurred by the Supplier in relation to the alteration or cancellation of that Purchase Order, including the cost of return freight, return shipping to factory of origin, items purchased from third parties for inclusion in the Goods and Services and all labour and engineering costs incurred by the Supplier in the execution or part execution of the Goods and Services under that Purchase Order.
16. Customer is deemed to have accepted the Goods and Services unless it makes a claim in accordance with clause 17.
17. Customer may reject any Goods that are wrongly supplied or oversupplied by notifying the Supplier of the claim and providing full particulars of the claim in writing within 5 working days of delivery of those Goods. The Supplier may dispute any such claim.
18. Goods referred to in clause 17 may only be returned to the Supplier for credit if:
(a) Customer returns the Goods to the Supplier’s premises by prior arrangement and with the Supplier’s written approval within 7 working days of
delivery, at no cost to the Supplier, unless delivered as the result of an administrative error by the Supplier, in which case the Supplier will bear the cost of return;
(b) the Goods are accompanied by a dispatch note stating the Supplier’s original invoice number and reason for return; and
(c) the Goods are returned in an unsoiled, undamaged and resaleable condition in their original packing.
19. Customer must not return any Goods to the Supplier unless it has complied with clauses 17 and 18, and has done all things necessary to permit the Supplier to examine the Goods to the Supplier’s satisfaction within that period.
20. Any delivery or consignment dates quoted by the Supplier are estimates only. The Supplier is not obliged to meet such dates and will not be liable to Customer by reason of delays caused by any reason whatsoever.
21. The Supplier is deemed to have delivered the Goods when the Goods are made available to Customer for physical collection by or on behalf of Customer at Customer’s nominated delivery point. Any unloading or loading is at Customer’s sole responsibility and risk, unless the Supplier otherwise agrees in writing.
22. The Supplier may deliver the Goods by instalments (where, in the Supplier’s opinion, this is reasonable) and issue interim invoices for delivered Goods to Customer.
23. Without limiting any other provision of this Agreement, failure by Customer to pay any instalment, or any other amount when due, will entitle the Supplier to withhold or delay delivery of any remaining Goods or Services ordered.
24. If Customer is unable to collect the Goods at Customer’s nominated delivery point on the delivery day, the Supplier may (at its option and without limiting its other rights and remedies) arrange suitable storage of the Goods, whether at its premises or elsewhere, and Customer must pay or reimburse all of the Supplier’s costs and expenses of storage, insurance, demurrage, handling and other charges associated with such storage. Despite Customer’s inability to collect the Goods, delivery of those Goods is deemed to have occurred and risk is passed to Customer in those Goods in accordance with clause 32.
25. If Customer requires the Supplier to carry out any Services at any site other than the Supplier’s premises (Site):
(a) Customer must hold, or procure that the owner of the Site holds, public liability insurance for an amount of not less than $20 million for those
premises;
(b) Customer must provide prior written notice to the Supplier, containing detailed information of any hazards or site conditions which may affect:
(i) the Supplier’s supply of the Services or Goods at the Site;
(ii) the health or safety of any person at the Site;
(iii) the Supplier’s occupation of any buildings or operation or use of any equipment in connection with the provision of Goods or Services
at the Site; and
(iv) the nature or methods of the work being undertaken at the Site.
26. The Supplier will not be liable for any claims, loss, damage or cost incurred by Customer or its personnel, contractors, agents or representatives or any other third party arising from or in connection with the provision of the Services at the Site, and Customer indemnifies the Supplier against any claims, loss, damage or cost incurred by the Supplier in connection with the access by the Supplier of the Site, other than any claim, loss, damage or cost to the extent caused by the Supplier’s negligence.
27. The Supplier may refuse to provide any part or all of the Services if, in its reasonable opinion, providing the Services may present a safety hazard for the Supplier or its personnel in providing the Services.
28. Title to the Goods remains with the Supplier until all monies owing by Customer to the Supplier in respect of those Goods have been paid in full (whether such monies are payable under a specific contract or on any other account).
29. Until such time as Customer has paid in full all monies owing to the Supplier for any Goods, Customer must:
(a) store the Goods separately and mark them so that they are clearly and easily identifiable as the Supplier’s property and, if the Supplier
requests, inform the Supplier of the location of the Goods;
(b) hold the Goods as bailee for the Supplier, subject to Customer’s right to deal with the Goods in the ordinary course of Customer’s business
(Bailment); and
(c) indemnify the Supplier against any claim arising out of the possession, use or disposal of the Goods by Customer or repossession or
attempted repossession by the Supplier.
30. If:
(a) a payment is not made by Customer in accordance with this Agreement;
(b) Customer commits any other breach of this Agreement; or
(c) Customer becomes bankrupt, has an administrator, a receiver or a receiver and manager appointed, goes into liquidation (whether voluntarily
or otherwise), or is wound up, dissolved or declared insolvent,
then the Supplier may at any time, without notice to Customer and without prejudice to any other rights that it may have against Customer:
(d) terminate a Purchase Order or this Agreement and the Bailment;
(e) suspend some or all of its obligations to Customer under a Purchase Order or this Agreement; and/or
(f) enter upon any premises owned or occupied by Customer where the Supplier reasonably believes the Goods may be stored and repossess all Goods without being liable for any damages caused.
31. If Customer sells the Goods before payment in full to the Supplier, or uses the Goods in a manufacturing or construction process of its own or some third party, Customer holds the proceeds on trust for the Supplier in respect of those Goods, and must keep such proceeds in a separate account until its liability to the Supplier is discharged, including any insurance proceeds under Customer’s insurance obligations in clause 10 and must immediately pay that amount to the Supplier.
32. The risk in the Goods passes to Customer at the time of delivery under clause 21.
33. Customer must keep the Goods insured against all risks for Goods of that kind from the time the risk in the Goods passes to Customer until the time that title to the Goods passes to Customer. Customer holds the proceeds of that insurance on trust for the Supplier up to the amount it owes the Supplier in respect of those Goods and must keep such proceeds in a separate account until the liability to the Supplier is discharged and must immediately pay that amount to the Supplier.
34. To the extent permitted by law, the Supplier makes no warranties or representations to Customer other than expressly set out in this Agreement.
35. The Supplier warrants the Goods and Services to be free from defects in workmanship and materials under normal use and service for a period of 1 calendar year from delivery (Warranty Period). This warranty does not cover costs of recovery of any Goods from any site or damage, fault, failure or malfunction due to external causes including accident, abuse, misuse, mechanical or electrical overload, abrasion, corrosion, incorrect installation,0 or Customer’s failure to perform required preventative maintenance or normal wear and tear.
36. During the Warranty Period, to the extent permitted by law, Customer’s sole remedy with respect to breach of warranties set out in the clause 35 will be to repair or replace (as the Supplier may elect) any such defective Goods, or resupply the Services, at the Supplier’s expense. The replacement or repaired Goods or Services will be covered by the unexpired portion of the Warranty Period in respect of the original Goods or for a period of 90 days from the date or resupply or repair, whichever is the greater.
37. For equipment forming part of the Goods, which equipment is not manufactured by the Supplier, the original manufacturer’s warranty will apply. The Supplier’s liability for such equipment will not exceed the liability of the manufacturer.
38. In respect of Goods or Services that are not ordinarily acquired for personal, domestic or household use or consumption, the liability of the Supplier for a breach of any condition or warranty implied by law is limited at the Supplier’s option to the repair the Goods or supply replacement Goods or Services.
39. The Supplier’s liability under this Agreement will be reduced by the amount of any contributory loss or damage to the extent caused by Customer’s act or omission or the acts or omissions of Customer’s personnel, contractors, agents or representatives.
40. Customer acknowledges and agrees that, to the extent permitted by law, the Supplier has no liability in contract, tort (including negligence or breach of statutory duty), by statute or otherwise for loss or damage (whether direct or indirect) of profits, opportunity, revenue, goodwill, bargain, production, contracts, business or anticipated savings, corruption or destruction of data or for any indirect, special or consequential loss or damage whatsoever.
41. The Supplier’s total liability under any Purchase Order must not exceed the total dollar amount of the Goods and Services purchased by Customer under that Purchase Order.
42. Customer acknowledges that all Proprietary Information and all right, title and interest therein are the sole property of or licensed by the Supplier and Customer gains no right, title or interest in the Proprietary Information whatsoever. Customer specifically acknowledges the Supplier’s exclusive rights to ownership of any modification, translation or adaptation of the Proprietary Information and any other improvement or development based thereon, whether developed, supplied, installed or paid for by or on behalf of Customer or any buyer of Customer or otherwise.
43. Customer must not and must not permit any person reasonably within its control nor procure any person to modify, copy, clone or reverse engineer the Goods or Services, or copy, modify or decompile any of the Supplier’s documentation relating to the Goods or Services.
44. The Goods supplied are intended for use only in Australia unless the Supplier otherwise agrees. If Customer exports or re-exports the Goods, it is Customer’s responsibility to ensure that the Goods and the use to which they are put comply with the laws of the destination.
45. Customer acknowledges that the Goods purchased by Customer may not be sold, leased or otherwise transferred to or utilised by a terrorist organisation, a party listed on the (US) Denied Persons List or by an end-user engaged in activities related to weapons of mass destruction, including but not limited to activities related to design, development, production or use of nuclear materials, nuclear facilities or nuclear weapons, missiles or support of missile projects, or chemical or biological weapons.
46. A party (non-defaulting party) may immediately terminate a Purchase Order or this Agreement by giving notice to the other party if:
(a) the other party is in breach of any material obligation under the Purchase Order or this Agreement (as applicable), the breach is capable of
remedy and the breach is not remedied within 30 days of notice by the non-defaulting requiring the other party to remedy the breach;
(b) the other party is in breach of any material obligation under a Purchase Order or this Agreement and the breach is not capable of remedy; or
(c) the other party:
(i) is liquidated, whether compulsorily or voluntarily (other than for the purpose of amalgamation or reconstruction whilst solvent;
(ii) is declared bankrupt;
(iii) enters into any arrangement with creditors;
(iv) becomes subject to external administration within the meaning of Chapter 5 of the Corporations Act 2001 (Cth), including having a
receiver or administrator appointed over all or any part of its assets; or
(v) anything analogous or having a substantially similar effect to the events specified in paragraphs (i) to (iv) above occurs in relation to
the other party.
47. The rights of the parties under clause 46 are without prejudice to:
(a) any other rights available to the party under this Agreement; and
(b) any other legal and equitable remedies available to the relevant party including suing for specific performance, injunctive relief or such other
orders as the party consider appropriate.
48. Customer indemnifies the Supplier, to the fullest extent permitted by law, from and against any claim, loss, damage or cost which may arise or be suffered by the Supplier relating to or arising out of or in connection with:
(a) Customer’s failure to comply with any applicable laws, standards, instructions or specifications in relation to the Goods or Services;
(b) any unlawful, negligent, wilfully wrong or fraudulent act, omission, default or misrepresentation by Customer;
(c) any breach of a Purchase Order or this Agreement by Customer; or
(d) Customer’s conduct in performing any Purchase Order or this Agreement.
49. In clauses 49 to 56, terms defined in the PPSA have the meanings given in the PPSA.
50. Despite anything to the contrary contained in this Agreement, the Supplier may secure (with equal priority) payment of all amounts owed by Customer to the Supplier from time to time (Outstanding Amounts), take a Security Interest in:
(a) all present and after acquired Goods supplied by the Supplier;
(b) any proceeds of any sale of the Goods; and
(c) any proceeds of any insurance held by Customer for the Goods.
51. The Security Interest will continue until Customer has paid all Outstanding Amounts.
52. Customer:
(a) agrees that the Supplier may register (either or both) Financing Statements and Financing Change Statements for any Goods;
(b) will promptly sign any further documents, provide any further information, or do any other things the Supplier reasonably requires at Customer’s own expense to enable the Supplier to perfect and maintain the perfection of its Security Interest;
(c) indemnifies (and if requested will reimburse) the Supplier for all expenses that it incurs in registering a Financing Statement or Financing Change Statement or releasing Goods charged by the Statement;
(d) will not register or permit to be registered a Financing Statement or a Financing Change Statement in any Goods in which the Supplier holds a Security Interest without the Supplier’s prior written consent; and
(e) will ensure that, if there is any change to Customer’s details as set out in clause 7 of the Credit Terms, any applicable Financing Change Statement is registered disclosing those new details if required to perfect the Supplier’s Security Interest.
53. Customer agrees that:
(a) any purchase by it on credit terms from the Supplier or retention of title supply will constitute a PMSI;
(b) the PMSI granted will continue to apply to any Goods acquired or proceeds of sale arising from the sale of any of the Goods; and
(c) the Supplier will continue to hold a Security Interest in Goods presently or after acquired by Customer, notwithstanding that the Goods may be
processed, commingled or become an accession with other goods.
54. Customer waives its right to receive:
(a) a verification statement confirming registration of a Financing Statement or a Financing Change Statement;
(b) any or all notice(s) of: (i) the Supplier’s proposal to remove personal property that has become an accession in accordance with section 95 of the PPSA; (ii) the Supplier’s proposal to dispose of any personal property under section 130 of the PPSA; and (iii) the Supplier’s proposal to retain any personal property under section 135 of the PPSA; and
(c) a statement of account and details of any amounts paid to other secured parties provided by the Supplier under section 132 of the PPSA.
55. Customer agrees that:
(a) the Supplier is under no obligation to dispose of or retain any secured property seized by it within the period specified in section 125 of the
PPSA;
(b) following a default by Customer, Customer has no rights to redeem the secured property under 142 of the PPSA; and
(c) it has no right to reinstate this Agreement following a default under section 143 of the PPSA.
56. Except if section 275(7) of the PPSA applies, Customer will not disclose any information of the kind referred to in section 275(1) of the PPSA that is not publicly available and agrees not to request that such information is disclosed.
57. The fact that the Supplier fails to do, or delays in doing, something it is entitled to do under this Agreement, does not amount to a waiver of its right to do it. For any waiver to be binding on the Supplier, the Supplier must have waived its rights in writing.
58. If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from this Agreement, but the rest of this Agreement is not affected.
59. The Supplier will not be liable for any failure to fulfil or any delay in fulfilling any obligation arising under this Agreement if the failure or delay has been caused directly or indirectly by any act of God, war or other civil commotion, strikes, lockouts, stoppages and restraints of labour, breakdown of machinery, inability to obtain raw materials or fuel, fire or explosion, any government action or any other cause beyond the Supplier’s reasonable control and not as a consequence of the Supplier’s negligence.
60. Any notice to be given to a party under this Agreement must be in writing and must be sent by post, facsimile or email to the address of that party shown in the quotation, Purchase Order or any order acknowledgement issued by the Supplier. Notice is deemed to have been given at the time it would have been received in the normal course of post if sent by post, or if otherwise given at the time it was actually received.
61. This Agreement is governed by and must be interpreted in accordance with the laws of New South Wales. Customer unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.
62. If there is more than one Customer, then the liability of each will be joint and several.
63. The rights and remedies provided in this Agreement will not affect any other rights or remedies available to the Supplier. Customer must not assign this Agreement without the Supplier’s prior written consent, which may be given or refused or imposed on conditions in the Supplier’s discretion.
64. Specifying anything after the word ‘includes’ (or a similar expression) does not limit what else is included.
65. The terms of this Agreement must not be interpreted to the disadvantage of a party merely because it or its lawyers prepared it
