1. DEFINITIONS"Buyer" means the company, firm or person placing the Order with the Seller.
"Goods" means the goods or services supplied pursuant to the Order.
"Order" means the order for the purchase of Goods placed by the Buyer with Seller.
“PPSA” means Personal Property Securities Act 2009 (Cth) and “security interest” and “perfected” have the meanings given to them in the PPSA.
"Seller" means the Aeroklas Australia group of companies being Aeroklas Australia Pty Ltd ACN 149 775 628 and related parties including, though not limited to, TJM Products Pty Ltd ACN 009 887 325, TJM Aeroklas Pty Ltd ACN 618 371 403, Aeroklas Pty Ltd ACN 149 775 628 and Flexiglass Challenge Pty Ltd ACN 009 267 467, and any distributor, stockist or reseller of Goods.
"Warranty" means the warranty referred to in clause 8.
2. ORDERS OF GOODS2.1 The Seller may issue quotations for Goods from time to time or otherwise offer Goods for sale. A contract is formed for the supply of Goods between the Buyer and Seller when the Seller issues an invoice to the Buyer or otherwise notifies the Buyer in writing that it accepts a request to purchase Goods. The Seller's acceptance of the Order is subject to these terms and conditions of sale and to any additional terms and conditions that may be contained in the Seller's price lists or quotations pursuant to which the Order was given.
2.2 These terms and conditions of sale may only be amended with the written consent of the Seller. Orders cannot be varied or cancelled after manufacturing of any made to order Goods or the customization of any Goods for the Buyer has commenced.
2.3 The terms and conditions of sale referred to in clause 2.1 shall take precedence over any additional or inconsistent terms and conditions contained in the Buyer's Order or in the Buyer's request for a quotation. Any statements within the Buyer’s documentation stating the Buyer’s terms and conditions prevail are hereby expressly excluded.
2.4 The Seller may refuse to supply the Goods to the Buyer where:
(a) the Goods are unavailable for any reason (including where demand exceeds supply);
(b) the Buyer’s credit limited with the Seller has been exceeded;
(c) the Seller decides not to extend credit to the Buyer;
(d) a termination event under an existing agreement between the Buyer and the Seller has occurred and has not been remedied;
(e) any circumstances arising that are beyond the Seller’s control, including industrial action.
3. PRICE AND PAYMENT3.1 Prices for Goods may vary from those initially quoted by the Seller. The Seller reserves the right to vary any of the prices quoted to the Buyer:
(a) to conform to the Seller's price list as at the date of dispatch of the Goods, with exception to existing orders accepted by the Seller;
(b) due to implementation of any requests by the Buyer for changes in delivery schedules, quantities, designs or specifications or similar requests; or
(c) due to delays caused by any instruction of the Buyer or by any failure of the Buyer to give adequate information or instructions.
3.2 Prices for Goods are fixed on the date of acceptance of the Order. Unless expressly referred to, all prices are exclusive of goods and services tax, which shall be paid by the Buyer in addition to the price of the Goods. The Buyer shall also be liable to pay freight, insurance and any other taxes, duties, fees, imposts and surcharges applicable to the Goods.
3.3 Payment for all Goods supplied by the Seller to the Buyers holding a valid debtor’s account is due 30 days from the end of the month in which the invoice for the Goods is issued unless otherwise agreed in writing. Accounts are to be conducted on a monthly basis. The month end closes on the last calendar day and a
statement will be forwarded shortly afterwards. For all other Buyers, payment for Goods is due at the time of dispatch of the Goods.
3.4 The Buyer hereby agrees to indemnify the Seller for all losses and costs, including legal costs, arising from the Buyer’s failure to pay the total amount of any Invoice on the due date.
4. DELIVERY4.1 Where the delivery of Goods is the responsibility of the Seller, the method of carriage shall be at the discretion of the Seller.
4.2 The Seller will make every reasonable effort to promptly deliver Goods (whether by instalment or otherwise).
4.3 Unless the Seller is notified otherwise in writing by the Buyer, all Goods will be delivered to the address of the Buyer specified on the Buyer's Order. The Goods will have been deemed to have been delivered to the Buyer once delivered by the Seller or the Seller’s agent to the address of the Buyer specified on the Buyer's Order. The Goods will be deemed to have been collected by any person (whether organized by the Seller or the Buyer) for the purposes of transporting the Goods to the Buyer.
4.4 The Seller shall not be liable for failure or delay in supplying the Goods, including any consequential loss or damage (including any loss of revenue or increase in expenses) arising from the delivery of the Goods.
5. TITLE AND RISK5.1 Until all money owed (contingently or otherwise) by the Buyer to the Seller in respect of each and every item of Goods supplied to the Buyer under these Terms and Conditions of Sale has been paid to the Seller, in full:
(a) the title in the Goods (both legal and beneficial) shall remain with the Seller, even though the Buyer may mix or combine the Goods with other Goods.
(b) The Buyer may only sell, lease or transfer title to the Goods by bona fide sale or transfer to a customer in the ordinary course of business.
(c) The Buyer will hold the Goods as bailee for the Seller.
(d) The Goods will be stored at the Buyer’s risk.
(e) The Buyer will store the Goods so that the Goods are clearly distinguishable from goods of a similar nature in the Buyer’s possession, and cross referenced to a particular invoice.
(f) The Buyer will not obliterate, alter, deface, remove or obscure any identifying numbers, plates, marks or other matter on or affixed to the Goods.
(g) The Buyer will keep separate records of all sales of the Goods.
(h) Any sale, lease or transfer of the Goods will be effected for the benefit of and as bailee for the Seller, and the Buyer will hold the proceeds of that sale, lease or transfer and the rights against the Buyer's Customers arising from that sale, lease or transfer on trust for the Seller. The Buyer will clearly identify those proceeds in the Buyer's books and records.
Nothing in these Terms and Conditions of Sale entitles the Buyer to return any Goods for a credit adjustment or otherwise, unless the Seller has requested in writing that the Goods be returned. Transportation charges must be prepaid and original invoice number must accompany returned Goods where the Seller has made a request.
5.2 The risk in the Goods shall remain with the Seller until delivery or collection of the Goods to or by the Buyer or the Buyer’s agent, or in the case of the export market, delivery in accordance with pre-arranged terms between the Buyer and Seller.
6.1 If this Agreement or any transaction contemplated by it gives rise to a security interest for the Seller under the PPSA, then this clause 6 applies to enable the Seller to secure the amount owing by the Buyer to the Seller in relation to Goods and also the performance of all of the Buyer’s other obligations under these Terms and Conditions of Sale.
6.2 The Buyer consents to the Seller perfecting its interest in the Goods (and any product to which Goods are attached or converted into by any process) by registration under the PPSA of the security interest that the Buyer considers arises out of these Terms and Conditions of Sale.
6.3 The Buyer and Seller agree to contract out of each provision which, under sections 115(1) and 115(7) of the PPSA, they are permitted to contract out of, other than sections 117, 118, 134(1) and 135. To the extent permitted by law, the Buyer also waives any rights that it might have (including to receive any notice) under sections 92, 93, 94, 95 and 96 of the PPSA.
6.4 To the extent permitted by the PPSA:
(a) the Buyer waives its right to receive each notice which section 144 or 157 of the PPSA permits to be waived;
(b) the Buyer waives its right to receive anything from the Seller under section 275 of the PPSA and agrees not to make any request of the Seller under that section.
6.5 For the purposes of section 275 of the PPSA, the information of the kind mentioned in section 275(1) of the PPSA must not be disclosed by the Buyer except where required by section 275(7) of the PPSA.
6.6 The Buyer, when requested to do so by the Seller, must do all things which the Seller asks to ensure that these Terms and Conditions of Sale (including any purchase order) and any security interest granted under it is fully effective, enforceable and perfected with the priority required by the Seller and otherwise enable the Seller to exercise its rights in connection with that security interest. This may include:
(a) doing anything to make, procure or obtain any consent, authorisation, registration or approval in respect of anything, or to facilitate it;
(b) creating or executing (or procuring the creation or execution of) any document, including any form, notice, consent or agreement; and
(c) delivering documents or evidence of title or otherwise giving possession or control with respect to any personal property or other asset.
7. ACCEPTANCE OF GOODS7.1 Acceptance of Goods delivered to the Buyer shall be deemed to have taken place at the expiration of 3 days of the date of delivery to the Buyer.
7.2 Before accepting any Goods, the Buyer must examine the Goods for loss or damage. When loss or damage occurs to the Goods, the Buyer must claim immediately on the Buyer’s transportation or insurance company.
8. WARRANTIES8.1 Subject to clause 8.2, the Seller warrants that it will, at its option, replace, rework, refund the price of or give a credit in relation to any Seller branded Goods for defects in respect of materials or workmanship (the "Warranty"), except that Goods purchased on special order are not acceptable for credit and any Goods under the invoice value of $50.00 are not acceptable for credit. A 10%-25% handling, repacking and processing charge may be applied to all credits depending on the nature of the Goods. No claims will be recognized after 10 days from the date of invoice.
8.2 The Warranty shall be valid for a period as stated on the Seller’s website or quotations pursuant to which the Order was given.
8.3 The Warranty shall not apply in each situation set out in the exclusions within the Seller’s warranty terms on the Seller’s website.
8.4 Notwithstanding any other terms and conditions of sale referred to in clause 2.1, but only to the extent permitted by the Competition and Consumer Act 2010 (Cth) or any other applicable law, the Seller's liability under the Warranty shall be limited to, at the option of the Seller, the replacement of the Goods, refund of the purchase price or allowing credit in relation to the Goods.
8.5 The Seller's no-fault policy and procedure and replacement of, refund or credit in relation to any Goods shall not constitute and its customers should not construe that replacement, refund or credit, as an acceptance of liability or an admission of negligence of fault by the Seller.
8.6 Any statutory or other warranties, terms and conditions of sale or representations not contained in the terms and conditions of sale referred to in clause 2.1, whether expressed or implied, are hereby excluded to the extent that they may be lawfully excluded by agreement between the Buyer and the Seller.
8.7 The Seller may also distribute non-Seller branded Goods in which case the Manufacturer warranty shall apply.
8.8 In the event of any inconsistencies between this clause 8 and a warranty policy as stated on a Seller’s website, the website policy shall prevail.
9. EQUIPMENTThe Buyer must provide and maintain suitable and safe equipment to receive delivery of the Goods and comply with all relevant Laws and Australian Standards relating to the operation and installation of that equipment.
10. LIMITATION OF LIABILITYNotwithstanding any other terms and conditions of sale referred to in clause 2.1, but only to the extent permitted by the Competition and Consumer Act 2010 (Cth) or any other applicable law, the Seller's liability in respect of any loss, damage or harm of any kind (whether direct or indirect and whether in contract, tort, negligence or pursuant
to statute or otherwise and including any loss or damage in the form of personal injury or death, loss or damage to property and any loss of revenue or increase in expenses) suffered by the Buyer in relation to the Goods shall be limited to, at the option of the Seller, replacement of the Goods, rework of the Goods, refund of the purchase price or a credit in relation to the Goods. The Seller will have no liability for failure or delay in supplying the Goods (including consequential loss or damage).