Truflow Spray Booths (Aust) Pty Ltd (ACN 156 396 753)
TERMS AND CONDITIONS OF SALE
- The whole of the agreement between the Supplier and the Customer is set out in these Terms and Conditions as amended from time to time and those, if any, which are implied and which cannot be excluded by law (Terms). Any other contractual terms of the Customer (whether upon the Customer’s order or elsewhere) that are contrary to, or inconsistent with, these Terms will not apply nor will they constitute a counter-offer. By ordering, accepting the Supplier’s quotation, and/or receiving delivery and/or supply of all or a portion of the goods and/or materials and/or equipment and/or parts and/or labour and/or services (Deliverables), the Customer will be deemed to have accepted these Terms and to have agreed that they will apply to the exclusion of all others.
- The Customer warrants to the Supplier that it is ordering Deliverables as principal and not as an agent.
- No order may be cancelled, whether in whole or in part, by the Customer unless the Supplier has first consented in writing to such cancellation or partial cancellation.
- Quotations and pricing
- Prices charged by the Supplier to the Customer for Deliverables will be according to the Supplier’s quotation (which the Supplier may review if not accepted within 14 days) for those Deliverables (Price). Otherwise, the Price may be determined by the Supplier by reference to its standard prices in effect at the date of delivery (whether notified to the Customer or not and regardless of any prices contained in the order). The Supplier will use its best endeavours to notify the Customer of price changes but bears no liability to that end.
- Unless otherwise specified in writing by the Supplier, the prices exclude:
- any statutory, tax including any Goods and Services Tax within the meaning of the A New Tax System (Goods and Services Tax) Act 1999 (GST), duty or impost levied in respect of the Deliverables for which the Supplier has not, in writing, allowed in calculating the price; and
- costs and charges in relation to insurance, packing (other than the standard packing of the Supplier), crating, delivery (whether by road, rail, ship or air) and export of the Deliverables..
- Payment terms
- The Customer will pay to the Supplier a non-refundable deposit, unless otherwise agreed between the Customer and the Supplier, of 50% of the Price immediately upon the Supplier’s acceptance of the Customer’s order.
- Payment of the remainder of the Price is due from the Customer to the Supplier on the following terms, unless agreed otherwise in writing:
- for a Customer order to supply and install the Deliverables:
- 40% of the Price upon supply of the Deliverables to the Customer for installation; and
- 10% of the Price upon Practical Completion; or
- for a Customer order to supply the Deliverables, 50% of the Price at the expiry of two (2) Business Days from the notification by the Supplier to the Customer that the Deliverables are available for collection.
- In the event that the Customer:
- defaults in making any payment or performing any other obligation under these Terms;
- falsely represents any matter or breaches any provision of any application for credit to the Supplier;
- commits an act of bankruptcy or insolvency or passes a resolution for winding up or a petition is presented for its winding up or enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally;
- has a liquidator, administrator, receiver or manager or similar functionary appointed in respect of its assets;
then, without prejudice to the Supplier’s other rights, the Supplier may:
- suspend the further supply of Deliverables;
- require all amounts payable to the Supplier, whether or not due for payment, become immediately payable;
- charge the Customer interest on any amount outstanding at the rate prescribed from time to time under the Penalty Interest Rates Act 1983 (Vic) plus 2 per cent calculated daily on any overdue amount;
- cancel or change the terms of payment before supply of Deliverables to the Customer;
- terminate any agreement forthwith by written notice to the Customer; and/or
- charge the Customer for all reasonable expenses and costs (including debt collection costs and legal costs on an indemnity basis) incurred resulting from the default or any other matter in this clause 4.1 in relation to the exercise of the Supplier’s rights against the Customer.
- Any payments received from the Customer will be applied first to satisfy interest that may have accrued, second to the expenses and legal costs under clause 4.1 and then to other amounts outstanding.
- Design, Customer’s Order
- The Supplier may prepare a design of the Deliverables for the Customer’s order (Design), and provide the Design to the Customer for approval.
- The Customer must respond promptly to any request for approval of the Design, and in any event within 7 days of receipt of a Design.
- The Customer must approve the Design, in writing, within seven (7) days of receipt of a Design from the Supplier that substantially complies with the Customer’s order.
- If, within seven (7) days of receipt of the Design from the Supplier, the Customer notifies the Supplier of a variation to the Design or the Customer’s order, the Supplier is entitled to charge the Customer for any additional work and amend the Price based on its standard labour charges and a margin of 15%
- If the Customer does not comply with the requirements of this clause 5, the Supplier is without prejudice to other rights, entitled to review and amend the Price of the Customer’s order and/or proceed to fulfil the Order.
- If the Customer does not respond to the Supplier within sixty (60) days seven (7) days of receipt of a Design, the Supplier is entitled to retain 50% of the Deposit as set out at clause 3.1, and to payment from the Customer for the cost of any materials purchased or other expenses incurred to that date in relation to the Customer’s order.
- The Customer acknowledges and agrees that all Intellectual Property and other information that the Supplier provides or makes available to the Customer in the Design or otherwise remains the property of the Supplier.
- Delivery, supply and installation
- For orders to supply and install the Deliverables, the Supplier reserves the right to do so in stages.
All complaints, claims, or notification of lost Deliverables, incomplete Deliverables, Deliverables damaged in transit or Deliverables that do not comply with the Customer’s order must be submitted by the Customer to the Supplier in writing within five (5) Business Days of the date of the invoice rendered for the supply of the Deliverables. Otherwise, the Customer will be deemed to have accepted the Deliverables and will not refuse to pay for the Deliverables on the basis that they were lost, incomplete, damaged in transit, or do not comply with the Customer’s order.
- By accepting these Terms, the Customer acknowledges and agrees that these Terms constitute a Security Agreement for the purposes of the PPSA and create a security interest in all of the Customer’s present and after-acquired Deliverables supplied by the Supplier.
- Until full payment has been made for all Deliverables, and any other sums in any way outstanding from the Customer to the Supplier from time to time:
- property in the Deliverables will not pass to the Customer, and the Customer holds the Deliverables as bailee for the Supplier (returning the same to the Supplier on request);
- the Supplier retains a security interest in all Deliverables previously supplied by the Supplier to the Customer (if any) and all Deliverables that will be supplied in the future by the Supplier to the Customer during the continuance of the parties’ relationship;
- the Customer agrees to store the Deliverables on its premises separate from its own or any other person’s goods, and in a manner which makes them readily identifiable as the Supplier’s Deliverables;
- the Deliverables will nevertheless be at the risk of the Customer from the time of dispatch; and
- the Supplier is irrevocably authorised to enter any premises where the Deliverables are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Deliverables, and any property to which the Deliverables are attached, or in which the Deliverables are incorporated.
- If the Customer purchases the Deliverables for the purpose of resupply or if the Customer resupplies the Deliverables:
- the Deliverables are inventory for the purposes of the PPSA;
- the Customer is only authorised to sell the Deliverables (or any portion of them) to third parties as the fiduciary agent of the Supplier provided that there will be no right to bind the Supplier to any liability to such third party by contract or otherwise. All payments (direct or indirect) received from such third parties by the Customer for the Deliverables (or any portion of them) will be held on trust for the Supplier pursuant to the fiduciary relationship.
- In the event that the Deliverables (or any portion of them) are attached, fixed, transformed or incorporated into any other goods or products produced by the Customer (or a third party), then title in the Deliverables will remain with the Supplier until the Customer has made payment for all Deliverables, and the Supplier will have a security interest in those goods or products, and the Customer must hold a proportion of any payment (relevant proportion) received by the Customer for such goods or products on trust for the Supplier, and the Supplier will have a security interest in that relevant proportion. The Customer expressly acknowledges that the relevant proportion will be equal to the dollar value of the portion of the Deliverables incorporated or transformed and the Customer further acknowledges that any part payment (not exceeding the relevant proportion) received by the Customer for such goods or products is received as payment first of the relevant proportion.
- The Customer undertakes to:
- promptly and at its own cost, sign any further documents and provide any further information (such information to be complete, accurate and up-to-date in all respects) that the Supplier may reasonably require to register a financing statement, financing change statement or any other required document on the Personal Property Securities Register;
- indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement, financing change statement or any other required document on the Personal Property Securities Register or releasing any Deliverables charged thereby;
- not register, or permit to be registered, a financing change statement or a financing change statement in respect of a security interest without the prior written consent of the Supplier;
- give the Supplier at least 14 days prior written notice of any proposed change in the Customer's name or any other change in the Customer's details; and
- immediately advise the Supplier of any material change in its business practices that would result in a change in the nature of proceeds derived from any sales of the Deliverables.
- The Supplier and the Customer agree that nothing in sections 130(1)(a) and 143 of the PPSA will apply to these Terms.
- The Customer waives its rights as a debtor under sections 92, 93, 94, 95, 97, 118, 121, 132, 135, 137, 140 and 142 of the PPSA.
- Unless otherwise agreed to in writing by the Supplier, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
- Neither party may disclose information of the kind to which section 275(1) of the PPSA refers. The Customer waives any right that the Customer may have or, but for this clause, may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of such information, and otherwise agrees not to exercise any rights it may have under sections 275(7)(c) and (d) without the Supplier’s written consent. To the extent that it is not inconsistent with this clause 8.9 constituting a confidentiality agreement for the purpose of section 275(6)(a) of the PPSA, the Supplier may disclose information of the kind to which section 275(1) of the PPSA refers to the extent that the Supplier is not doing so in response to a request by an interested person.
- The Customer further agrees that where the Supplier has rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply.
- The Customer unconditionally ratifies any actions taken by the Supplier under clauses 8.1 to 8.10 under and by virtue of power of attorney given by the Customer to the Supplier, and agrees that this clause 8 will survive termination of this agreement or any agreement hereunder for the sale of the Deliverables.
- Subject to clause 9.2 :
- the only guarantee, warranty or condition provided in relation to any Deliverables is the Warranty Terms the Supplier provides to the Customer; and
- the Supplier excludes all liability in relation to the Deliverables, whether in contract, tort or otherwise, including all liability for any consequential or other loss or damage.
- Subject to clause 9.3, nothing in clause 9.1 excludes, restricts or modifies, if relevant:
- the application of any consumer guarantee in the Australian Consumer law (Consumer Guarantee) or any similar provision in the law of any State or Territory that cannot be excluded, restricted or modified (Similar or other Provision);
- the exercise of any right conferred by a Consumer Guarantee or Similar or other Provision; and/or
- the Supplier’s liability under any Consumer Guarantee or Similar or other Provision.
- The Customer acknowledges and agrees to comply with all statutory and regulatory requirements as applicable to the Customer’s operation and maintenance of the Deliverables, including but not limited to:
- AS/NZS 4114.1:2003 Spray painting booths, designated spray painting areas and paint mixing rooms;
- AS/NZS 1715 Selection, use and maintenance of respiratory protective devices;
- AS/NZS 1716 Respiratory protective devices
- AS3000 – Electrical Standards;
- AS1940-2004 Storage and Handling Flammable Liquids;
- Worksafe Victoria – Health and Safety Solution Regulations for Spray Painting; and
- Safe Work Australia Spray Painting and Powder Coating Code of Practice.
- Force majeure
- If the Supplier or the Customer are prevented from or delayed in performing an obligation under these Terms (other than an obligation to pay money) by a Force Majeure Event, then the obligation is suspended during, but for no longer than, the period of the Force Majeure Event and such further period as reasonable in the circumstances.
- The party that is prevented from or delayed in performing the obligation must promptly notify the other party of its inability to perform the obligation due to the Force Majeure Event.
- If the Dispute continues to be unresolved, either party may submit the Dispute to mediation in accordance with the Australian Commercial Disputes Centre (‘ACDC”) Guidelines for Commercial Agreements. The parties will endeavour to agree on the appointment of mediator. If the Parties do not agree on the mediator to be appointed within 5 Business Days of either Party submitting the Dispute to mediation, then the mediator is to be appointed by the ACDC.
- The costs and expenses of the mediator will be shared by the parties equally.
- This dispute resolution clause will not be a bar to the commencement of legal proceedings or taking any other remedial action where urgent relief is required or the Supplier considers in its sole discretion that it is otherwise necessary to do so.
- These Terms will be governed by and interpreted according to the laws of Victoria and the Supplier and the Customer consent and submit to the jurisdiction of the Courts of Victoria.
- The Supplier’s failure to enforce any of these Terms shall not be construed as a waiver of its rights.
- A notice must be in writing and handed personally or sent by email, facsimile or pre-paid mail to the last known address of the addressee. Notices sent by email or facsimile are deemed received on sending of the email (unless the sender promptly receives an email message that the email could not be delivered to the addressee) or on confirmation of successful transmission by facsimile.
- No rule of construction applies to the disadvantage of the Supplier because it was responsible for the preparation of these Terms or any other agreement between the parties.
- The Supplier may amend these Terms at any time and the Terms (as amended) will apply to any subsequent sale by the Customer to the Supplier.
In the Terms unless the context indicates otherwise:
“Business Day” means any day except for public holidays and weekends;
"Customer" means the person, jointly and severally if there is more than one, acquiring Deliverables from the Supplier;
“Design” means the design drafted by the Supplier based on the Customer’s order, and supplied to the Customer as set out at clause 5;
“Financing change statement” has the meaning given to it by the PPSA;
“Financing statement” has the meaning given to it by the PPSA;
“Force Majeure Event” means any of the following which are unforeseen, beyond the control of, and that occur without fault or negligence by, the party prevented from or delayed in performing the obligation:
- acts of God, earthquake, fire, flood, storm;
- war, riot, insurrection, vandalism or sabotage;
- strikes, labour disputes and other forms of industrial disturbance;
- explosion; and/or
- power shortage, breakdown of plant, machinery of equipment;
“PPSA” means Personal Property Securities Act 2009 (Cth);
“Intellectual Property” means all inventions, know-how, patents, patent applications, registered and unregistered trade marks, services marks, registered and unregistered designs, including the Design, copyrights and all other rights resulting from intellectual activity in, but not limited to, the industrial, scientific, literary or artistic fields;
“Practical Completion” means when the Supplier notifies the Customer that supply and installation of the Deliverables is complete except for minor omissions and minor defects which do not prevent the Deliverables from being reasonably capable of being used for their intended purpose;
“Security Agreement” means the security agreement under the PPSA created between the Customer and the Supplier;
“Security interest” has the meaning given to it by the PPSA; and
“Supplier” means Truflow Spray Booths (Aust) Pty Ltd (ACN 156 396 753) and/ or its assigns.
“Warranty Terms” means the Truflow Spray Booths (Aust) Pty Ltd Warranty Terms provided to the Customer by the Supplier.