1. APPLICATION OF THESE CONDITIONS
These conditions, subject to any variations we agree to in writing, apply to all supplies made by the company specified in the invoice or the contract as the supplier to the entity specified in the invoice or the contract as the purchaser. These conditions, in their present form or as changed, pursuant to these conditions, together with the relevant Credit Application form (if applicable), Invoices and Purchase Orders exchanged between the parties form the contract.
Prices and other details in any quotation that we provide are only valid for 30 days or such limited time period as stated in quotation.
3. ACCEPTANCE OF PURCHASE ORDERS AND FORECASTS
3.1 The Supplier will only accept Purchase Orders which are accompanied by a purchase order number. The Supplier reserves the right to refuse acceptance of any Purchase Order, within 2 working days after receipt. Any quotation given by the Supplier lapses if not accepted by the Purchaser within 30 days.
3.2 If the Purchaser has provided the Supplier with a forecast of future requirements it acknowledges that the Supplier will be entitled to rely on the accuracy of such forecast(s) for the purpose of ordering raw materials and arranging its resources so as to be able to meet those forecast requirements.
3.3 If any such forecast is materially inaccurate the Supplier shall be entitled to invoice the Purchaser for all costs, expenses or losses which result from the Supplier having relied on the inaccurate forecast. Such invoice will be subject to the normal terms of payment applying to the Purchaser.
3.4 In any event, the Supplier shall be entitled to invoice the Purchaser for all finished Goods made to forecast and not ordered by the Purchaser within 3 months of manufacture. Such invoice will be subject to the normal terms of payment applying to the Purchaser.
4. PRICE VARIATION
4.1 The price quoted by the Supplier is unless otherwise agreed in writing subject to variation at any time prior to the date of acceptance of the Purchase Order upon written notice to the Purchaser. Without limitation, if the cost of wages, materials or any other supply or input to the Supplier increases after the date of any written and/or price list and before delivery of the Goods or completion of the work specified in the Purchase Order, the Supplier may subject to other agreed pricing mechanisms add a fair and reasonable amount to the price quoted to cover the increase and the Purchaser must pay the price as varied.
4.2 Any addition or change to the specifications of the Goods must be agreed in writing by both the Supplier and the Purchaser and may result in a price variation .
5. TERMS OF PAYMENT
Terms of payment are COD unless credit or the use of credit card has been approved by the Supplier. If credit is satisfactorily established, invoices will be paid 30 days after the end of month following the month of invoice (without deduction or set-off of any kind) or as stipulated on the Invoice ie 7 days unless otherwise agreed to by the Supplier in writing. If use of credit card is approved, then payment is due on the date of invoice and a Credit Card surcharge will be added. In the event payment is not received by the due date the Supplier reserves the right to charge interest of 5% commencing from the due date of payment in respect of all the Purchaser’s indebtedness which is overdue. Any interest so levied shall accrue on a daily basis and shall accrue until all monies owing are paid in full. The Purchaser shall also be liable to pay all expenses, legal costs on a solicitor and own client basis, of the Supplier in relation to obtaining remedy of the failure to comply.
6. GOODS AND SERVICES TAX
6.1 If, and to the extent, any supply of the Goods under the Contract is a taxable supply within the meaning of the GST Law, the price for the Goods will be increased to
6.2 include GST payable by the Supplier in respect of the supply. All rebates, discounts or other reductions in price will be calculated on the GST
6.3 exclusive price. The parties agree that:
a) the parties must be registered persons within the meaning of the GST Law; the supplier must be notified if the purchaser ceases to be registered for GST;
b) the Supplier must provide tax invoices and if applicable adjustment notes to the Purchaser in the form prescribed by or for the purposes of the GST Law; and
c) costs required to be reimbursed or indemnified excludes any amount that represents GST for which an input tax credit within the meaning of the GST Law can be claimed
If the Purchaser defaults in payment, or an application is made to a court to wind up the Purchaser, or a receiver or administrator is appointed to manage the affairs of the Purchaser, or the Purchaser is in material breach of the Contract, then the Supplier may terminate the Contract or any Purchase Order immediately and may recover from the Purchaser, at a minimum, reasonable compensation for materials purchased and ordered and labour expended in complying with the Purchase Orders
Any request by the Purchaser for cancellation of a Purchase Order must be in writing and may be delivered by post, hand delivery or email. The Purchaser is liable to reimburse the Supplier for the costs it has incurred for labour and materials in fulfilling the Purchase Order up to the date the request for cancellation is received and acknowledged by the Supplier.
9. FORCE MAJEURE
9.1 Neither party is liable for any Loss incurred by the other party as a result of any delay or failure to observe any of these conditions (other than an obligation to pay money) as a result of any circumstance beyond the party’s control, including but not limited to any strike, lock-out, labour dispute, act of God, fire, flood, accidental or malicious damage or breakdown in machinery. The party affected must notify the other party as soon as possible of such circumstance.
9.2 During the continuance of such circumstance the obligations of the party affected, to the extent they are affected by the circumstance, are suspended and resume as soon as possible after the circumstance has ceased to have effect.
10. SUPPLIER’S LIABILITY
10.1 Nothing in these conditions is to be interpreted as having the effect of excluding, restricting or modifying any statutory guarantee, condition or warranty, or right or liability implied by any applicable legislation into the Contract, if such exclusion, restriction or modification would be void or prohibited by the legislation.
10.2 To the extent that the Supplier breaches any statutory guarantee, condition or warranty implied into the Contract and which cannot be excluded or modified, the Supplier’s liability is limited to, at the Supplier’s discretion:
a) in the case of Goods:
i.) replacement of the Goods or supply of equivalent Goods;
ii.)payment of the cost of replacing the Goods or acquiring equivalent
iii.) Goods;repair of the Goods; or
iv.) payment of the cost of having the Goods repaired; or
b) in the case of services, to:
i.) supply of the services again; or
ii.) payment of the cost of having the services supplied again.
10.3 Subject to (a) and (b) above, the Supplier is not liable to the Purchaser (or to any third party claiming through the Purchaser) for any Loss caused by any act or omission of the Supplier, its employees or agent, and whether based on negligence, tort, contract or otherwise. Under no circumstances shall the Supplier be liable for indirect or consequential losses.
11. RISK IN GOODS
Risk in the goods will pass to the Purchaser when possession of goods is made.
12. ARTWORK, DRAWINGS, PRINTING PLATES (IF APPLICABLE)
All works produced by the Supplier and any intellectual property in and to such works, remain the exclusive property of the Supplier unless otherwise agreed in writing.
13. INTELLECTUAL PROPERTY
Any technical information, knowledge or processing methods at any time transmitted either orally or in writing by the Supplier to the Purchaser shall remain the property of the Supplier and shall be considered absolutely confidential by the Purchaser who shall not use them for any purpose nor sell transfer or divulge them in any manner to anyone without the prior written consent of the Supplier. The Purchaser warrants that the use by the Supplier of any designs or instructions supplied by the Purchaser will not infringe the patents, trade marks, designs or copyright (”intellectual property”) of any other person and the Purchaser agrees to indemnify the Supplier against any claim relating to or arising from the infringement of any intellectual property of any other person. If at any time a claim is made against the Supplier or the Supplier becomes aware that a claim is likely to be made against the Supplier for infringing any intellectual property or contributing to any such infringement by the Supplier or any other person as a result of supplying Goods, the Supplier may immediately terminate or suspend this Contract.
14. QUANTITY AND QUALITY TOLERANCES
14.1 Should the Supplier be required to match any shade or colour a light and dark tolerance shall be allowed to such extent as shall be agreed upon by the Supplier and the Purchaser at the time the standard colour is specified and in the absence of any agreement a reasonable tolerance shall be allowed
14.2 Where the Purchaser supplies specifications to the Supplier, any Goods not varying in the specification stipulated by the Purchaser by more than the established industry tolerance must be accepted by the Purchaser as complying with the Contract.
15. TAX AND DUTIES
The Purchaser is liable for all taxes (including GST), duties, levies and other government fees and charges in relation to the Goods. Unless specified otherwise, prices quoted do not include such taxes (including GST), duties, etc.
Any claim by the Purchaser arising out of the Contract must be made in writing and may be delivered by post, hand delivery or email as soon as practicable after discovery by the Purchaser of the problem and in any event no later than 14 days after delivery of the Goods. To the extent the Supplier can identify the Goods and the date of manufacture the Purchaser must supply a sample and information if requested. The Supplier has the right at any time within 14 days after receipt of the claim to inspect the relevant Goods. If the Purchaser disposes of any of the Goods within the 14 day period, except with the written consent of the Supplier, all claims in respect of the Goods disposed of are deemed to have been waived by the Purchaser.
Unless required by law or otherwise agreed, the Purchaser must keep confidential all information it receives from the Supplier which relates to the Goods, the Supplier’s business or any services the Supplier provides and any of the Supplier’s intellectual property (including without limitation any formulations), other products or processes except to the extent that information is in the public domain.
Unless otherwise instructed by the Purchaser in writing or included in a written quotation or price list by the Supplier, insurance cover for the Goods in transit will not be arranged by the Supplier. Instructions for insurance cover will only be accepted in writing at the time the Goods are ordered.
If the Purchaser requests delivery by means other than the means normally used by the Supplier, then the Purchaser must pay all additional costs associated with the means chosen.
The Purchaser must comply with the Privacy Law with respect to any act done or practice engaged in by the Purchaser for the purposes of this Contract, including, without limitation, in relation to the collection, use disclosure, storage, destruction or de-identification of Personal Information. The Purchaser must also enter into a contractual arrangement to this effect with any subcontractor or third party to which it discloses Personal Information in connection with this Contract.
Any of these conditions may be varied in writing by the Supplier unless otherwise agreed between the parties
Courts of Australia and of that State. The following words have the following meanings in these conditions:
a) “Contract” means the contract between the Purchaser and the Supplier for
b) the supply of the Goods, as described in clause 1; “Goods” means all goods and/or services ordered in the Purchase Order;
c) “GST” has the same meaning as in the GST Law;
d) “GST Law” means the A New Tax System (Goods and Services Tax) Act
e) 1999 (Cth); “Loss” means any loss, liability, damage, expense or cost whatsoever and includes (without limitation) indirect or consequential loss or damage, loss of
f) profits or business opportunity, and damage to equipment or property; “Personal Information” has the meaning set out in the Privacy Act 1988 (Cth).
g) “Privacy Law” means the Privacy Act 1988, including (without limitation) the 13 Australian Privacy Principles (APPs) in the Privacy Act 1988 (Cth) and all relevant Australian privacy laws, including the Health Privacy Principles under state legislation (e.g. those contained in the Health Records Act 2001 (Vic) or the privacy provisions contained in Part 2 of the Health Records (Privacy and Access) Act 1997 (ACT)), the Privacy Regulations 2013 and the Privacy
h) (Credit Reporting) Code. “Purchase Order” means a purchase order issued by the Purchaser to the
i) Supplier; “Purchaser” means the person (including its successors, personal representatives and permitted assigns) who acquires the Goods from the Supplier, and where this consists of more than 1 person the obligations in the
j) Contract are deemed to be joint and several; “Related Bodies Corporate” has the meaning given to it in the Corporations
k) Act 2001 (Cth); and “Supplier” means the company identified in the invoice.
CE BODY BUILDERS
57 WANDEARA CRES
PO BOX 465
MUNDARING WA 6073
08 9295 6636