TERMS AND CONDITIONS OF SALE – REHAU PTY LTD
CONDITIONS OF SALE
In these conditions of sale:
1.1 “Buyer” means the purchaser of the Goods specified overleaf.
1.2 “Conditions” means these conditions of sale.
1.3 “Goods” means the products and, if any, services specified overleaf.
1.4 “Seller” means REHAU Pty Limited (ACN 001 298 577), which is the seller of the Goods.
1.5 These conditions do not exclude, restrict or modify any condition, warranty, guarantee, right or remedy implied by law (including the Trade Practices Act 1974 (Cth)) and which by law cannot be excluded, restricted or modified.
The conditions of sale can only be amended by the Seller by notice in writing to the Buyer.
3. TERMS OF SALE
The Goods are sold by the Seller subject to the conditions of sale which constitute the entire agreement between the Seller and the Buyer and prevail over all statements, representations, catalogues, illustrations, marketing materials or communications of any kind whatsoever made prior to the purchase.
4. SELLER’S QUOTATIONS
Unless previously withdrawn, the Seller’s quotations are open for acceptance within the period stated or, if no period is stated, within sixty (60) days of the quote date.
Notwithstanding anything else herein, the cost of any special packing for the Goods is at the Buyer’s expense and not included in the Seller’s quotation.
The Buyer waives any claim for shortage of any Goods delivered if a claim in respect of short delivery has not been lodged with the Seller within seven (7) days from the date of receipt of the Goods by the Buyer.
7. DRAWINGS, SPECIFICATIONS AND PARTICULARS
7.1 All original designs, specifications, drawings, and particulars of weights and dimensions (“the description‟) submitted to the Buyer are approximate only and any deviation from the description does not form grounds for any claim against the Seller.
7.2 The description submitted by the Seller to the Buyer must not be disclosed or
7.3 Where Goods are manufactured and/or supplied by the Seller for/to the Buyer in accordance with directions, instructions, drawings and/or specifications supplied by the Buyer, the Buyer agrees to defend, protect and completely indemnify the Seller against any claim arising by reason of the design, manufacture, production and use of the Goods, including all claims for actual and alleged infringement of letters patent, trade marks, copyright, design, confidential information or similar protection whether granted by the Commonwealth of Australia or any foreign state or the common law
7.4 Any dies, tools, patterns and other equipment (collectively known as “the equipment‟) used in the manufacture or production of the Goods, which the Seller makes or obtains in order to produce the Goods, shall unless otherwise stated, remain the Seller’s property. If the Seller does not use the equipment for a three (3) year period, then the Seller is entitled to dispose of that equipment.
8.1 Any performance figures given by the Seller are estimates only. The Seller is under no liability for damages for failure of the Goods to attain such figures unless specifically guaranteed in writing. Any such written guarantees are subject to the recognised tolerances applicable to such figures.
8.2 Unless otherwise specified in Australian or any other relevant standards, the following tolerances apply to the Goods:
(a) Thermoplastic sections of width, height and diameter:
(i) up to 6mm: +0.5%;
(ii) between 6.1mm and 30mm: +1.0%;
(iii) between 30.1mm and 120mm: +1.5%; and
(iv) between 120.1mm and 315mm: +2.0%.
(b) Thermoplastic sections of wall thickness:
(i) up to and including 1mm: + 20%; and
(ii) greater than 1mm: + 10%.
(c) Shore A hardness data are subject to a tolerance range of 3% for thermoplastics and 5% for elastomers.
8.3 The Seller is not in any way liable for normal commercial variations in finish, weight and colour, and no condition, warranty or stipulation is made in respect of the colour stability of plastics.
9.1 Unless otherwise agreed in writing, the place for delivery of the Goods shall be the premises specified by the Buyer overleaf.
9.2 If no time for delivery is specified in writing by the Seller, then the Buyer shall be bound to accept the Goods when they are ready for delivery by the Seller.
9.3 It is acknowledged that the delivery times made known to the Buyer are estimates only.
9.4 The Seller is not liable for any loss (including consequential loss), damage or delay occasioned to the Buyer or its customers arising from late or non-delivery of the Goods, regardless of the reason for late or non-delivery.
9.5 If delivery of the Goods is suspended or delayed for a period exceeding four (4) months from any delivery date specified in writing to the Buyer then, unless otherwise agreed in writing, so much of the contract as relates to those Goods shall automatically be rescinded and any monies paid by the Buyer to the Seller for those Goods shall, subject to condition 9.6, be refunded. Any rescission pursuant to this clause shall only be for that part of the contract that relates to the suspended or delayed Goods, and the contract shall remain in force with respect to all other Goods.
9.6 Should the contract be rescinded pursuant to clause 9.5, then the Seller shall be entitled to retain any monies paid by the Buyer with respect to those suspended or delayed Goods and apply those monies towards payment of any other amounts owing by the Buyer to the Seller. If this occurs, then the Seller will inform the Buyer in writing of how these monies were used in paying any other amounts owing. The Buyer has no right to object to monies being set off against other amounts owing in this manner.
9.7 The Seller shall have the right to deliver up to 10% more or less than the quantity of the Goods stated overleaf and the price payable by the Buyer shall be increased or decreased pro rata.
9.8 The Seller may at its option deliver the Goods to the Buyer in any number of instalments unless there is an endorsement overleaf to the effect that the Buyer will not take delivery by instalments.
9.9 If the Seller delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:
(a) it is not a repudiation of the contract of sale formed by these conditions; and
(b) the defective instalment is a severable breach that gives rise only to a claim for compensation.
10. LOSS OR DAMAGE IN TRANSIT
10.1 Although all Goods delivered to the Buyer shall be at the Buyer’s risk from the time of delivery, the Buyer agrees to insure the Goods shipped under this contract against any damage and/or loss.
10.2 The Seller is not responsible to the Buyer or any person claiming through the Buyer for any loss or damage to Goods in transit caused by any event of any kind by any person, whether or not the Seller is legally responsible for the person who caused or contributed to that loss or damage.
10.3 The Seller must provide the Buyer with such assistance as may be necessary to press claims on carriers so long as the Buyer:
(a) has notified the Seller and the carriers in writing immediately after loss or damage is discovered on receipt of Goods; and
(b) lodges a claim for compensation on the carrier within three (3) days of the date of receipt of the Goods.
11.1 All express and implied warranties, representations, promises, conditions or statements made by the Seller or any person who at law is deemed to be an agent of the Seller regarding the Goods, including (without limiting the generality of the foregoing) their merchantability, description, quality, suitability or fitness for any purpose, design, assembly, installation, materials or workmanship or otherwise, are expressly excluded.
11.2 The Seller is not liable for and the Buyer releases the Seller from any claims in respect of faulty or defective design of any Goods supplied unless such design has been wholly prepared by the Seller and the responsibility for any claim has been specifically accepted by the Seller in writing.
11.3 The Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of the Seller’s negligence or in any way whatsoever.
11.4 The Seller’s liability for a breach of a condition or warranty implied by Div 2 of Pt V of the Trade Practices Act 1974 („Cth) (other than s 69) is limited to:
(a) in the case of Goods, any one or more of the following:
(i) the replacement of the Goods or the supply of equivalent Goods;
(ii) the repair of the Goods;
(iii) the payment of the cost of replacing the Goods or of acquiring equivalent Goods;
(iv) the payment of the cost of having the Goods repaired; or
(b) in the case of services:
(i) the supplying of the services again; or
(ii) the payment of the cost of having the services supplied again.
11.5 The Seller’s liability under s 74H of the Trade Practices Act 1974 is expressly limited to a liability to pay to the purchaser an amount equal to:
(a) the cost of replacing the Goods;
(b) the cost of obtaining equivalent Goods; or
(c) the cost of having the Goods repaired, whichever is the lowest amount.
12.1 Unless otherwise stated all prices quoted by the Seller are exclusive of Goods and Services Tax (GST).
12.2 Prices quoted are based on rates of freight, insurance, customs duties, exchange, shipping expenses, sorting and stacking charges, cartage, cost of materials and other charges affecting the cost of production when the quotation is provided.
12.3 The Seller reserves the right to make any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract. Any such alterations to the price of Goods not yet delivered will be charged or credited to the Buyer’s account, depending on whether the variation increases or decreases the price.
13.1 Unless otherwise agreed in writing by the Seller, the full purchase price in relation to Goods, including GST, must be paid in full by the end of the month following the month of invoice.
13.2 If payment for the Goods is not made in accordance with clause 13.1 above, the Buyer agrees to pay interest on all overdue amounts, at a rate of 10% p.a. calculated daily from the date of issue of the Seller’s invoice for payment up until and including when the outstanding balance is paid.
13.3 The Seller is at liberty to change the rate of interest referred to in clause 13.2 at any time and on as many occasions as it determines, so long as the Buyer is given written notice of any such variation (”the new interest rate‟). The new interest rate shall then apply to any subsequent orders placed with the Seller by the Buyer.
14. RETENTION OF TITLE AND SECURITY INTEREST
14.1 Property in and legal and beneficial ownership of the Goods shall remain with the Seller until the Buyer has made payment in full in cleared funds of the contract price of those Goods and any other money owing by the Buyer to the Seller, and pending such payment the Buyer:
(a) shall hold the Goods as fiduciary bailee and agent for the Seller;
(b) shall retain the Goods in a manner such that they are readily identifiable as the Seller’s property;
(c) shall not in any way deal with, or part with possession of, the Goods or part thereof or attempt to do so;
(d) shall not make any new object from the Goods, or mix or incorporate them into or with other Goods;
(e) shall handle and store the Goods with due care; and
(f) shall not use the Goods for any purpose whatsoever.
14.2 (a) If the Buyer defaults in payment of the contract price or any other money owing by the Buyer to the Seller, the Seller and its nominees shall have the right to enter the premises where the Goods are believed to be stored to take possession of all or any of the Goods, and for this purpose the Buyer shall grant or cause to be granted reasonable access rights and the Seller shall be entitled to do all things required to secure possession of the Goods.
(b) Upon taking possession of Goods the Seller shall thereafter be entitled to sell and dispose of them or any of them, either together or in parcels, at such time or times, and place or places, and either by public auction or private contract or partly by one and partly by the other, to any person or persons, for such price or prices as the Seller may deem proper or expedient, with power for the Seller to make any other terms and conditions in regard to such sale or sales as the Seller may think proper, without being answerable or accountable for any loss, diminution in price, costs or expenses occasioned by any such sale.
(c) The Seller shall be entitled to apply the net proceeds of sale in reduction of the money owing by the Buyer to the Seller (including that referred to in subparagraph (d)(iii) below), and shall pay any surplus to the Buyer.
(d) If the Seller exercises any of these rights, the Buyer:
(i) will not have any claim whatsoever against the Seller for breach of contract or otherwise;
(ii) shall indemnify the Seller from and against any claim against the Seller arising out of its taking possession of the Goods; and
(iii) reimburse the Seller on demand in respect of the costs and expenses incurred by the Seller in exercising or attempting to exercise those rights including, without limitation, costs of taking possession, storage and transportation.
14.3 Despite clause 14.1, if the Buyer supplies any of the Goods to any person before all monies payable by the Buyer have been paid to the Seller:
(a) the Buyer shall hold the proceeds of that supply of the Goods on trust for and as agent for the Seller immediately when they are receivable or are received; and
(b) the Buyer must either pay the amount of the proceeds of supply to the Seller immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for the Seller.
14.4 Notwithstanding clause 14.1, if the Buyer makes any new object from the Goods, or incorporates or mixes them into or with other Goods, before all monies payable by the Buyer have been paid to the Seller:
(a) those new or other Goods or objects will be held on trust for the Seller; and
(b) if those new or other Goods or objects are supplied by the Buyer to any other person, the Buyer shall hold the proceeds of that supply of the goods or objects on trust for and as agent for the Seller immediately when they are receivable or are received, and the Buyer must either pay the amount of the proceeds of supply to the Seller immediately when they are received or pay those proceeds into an account with a bank or financial institution or deposit-taking institution as trustee for the Seller.
14.5 The Buyer acknowledges and agrees that by assenting to these Conditions, the Buyer grants a security interest to the Seller in all Goods now or in the future supplied by the Seller to the Buyer (or to its account) during the continuance of the relationship between the Seller and the Buyer.
14.6 The Buyer will, whether before or after Goods are supplied under these Conditions, do such acts and provide such information (which information the Buyer warrants to be complete, accurate and up to date in all respects) as in the opinion of the Seller (acting in its absolute discretion) may be required or desirable to enable the Seller to perfect under the Personal Property Securities Act 2009 (Cth) (as amended or replaced from time to time) (PPSA) the security interest created by these Conditions.
14.7 To the extent permitted by law the Buyer waives any right to receive a copy of a verification statement under the PPSA and agrees as to any contract between the Seller and the Buyer for the supply of Goods governed by these Conditions, to the extent permitted by law, to contract out of section 115(1) of the PPSA, except section 115(1)(g), to the intent that the Seller will preserve its right to seize collateral, and the Buyer agrees to waive its rights referred to in section 115(1).
14.8 The Buyer agrees to pay the costs, charges and expenses of and incidental to the need for, or desirability of registration of, a financing statement or financing change statement or any action taken by the Seller to comply with the PPSA or to protect its position under the PPSA. The Buyer agrees to pay any costs incurred by the Seller, including, but not limited to, legal costs on a solicitor-own client basis, arising from any disputes or negotiations with third parties claiming an interest in any Goods supplied by the Seller.
14.9 Notwithstanding anything else herein, if the Seller at any time has any reasonable doubts as to the solvency of the Buyer or the Buyer’s ability to make payment for the Goods, the Seller may refuse to make any further delivery of Goods under this contract or any other contract, unless it receives cash in payment of the Goods or security for payment satisfactory to the Seller, without prejudice to any other rights of the Seller.
15. BUYER’S PROPERTY
Any property of the Buyer under the Seller’s possession, custody or control is completely at the Buyer’s risk as regards to loss or damage caused to the property.
The Seller reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Buyer within fourteen (14) days of a request by the Seller for such instructions. The parties agree that in these circumstances the Seller may charge for storage from the first day after the Seller requests the Buyer to provide delivery instructions.
17. RETURNED GOODS
17.1 The Seller does not have to accept the return of any Goods, or give any refund, credit or exchange if the Buyer:
(a) changes their mind;
(b) decides they do not like the Goods;
(c) decides they have no use for the Goods;
(d) has discovered they can buy the Goods at a cheaper price elsewhere;
(e) examined the Goods before buying and ought to have seen an obvious fault or defect; (vi) had the defect drawn to their attention before buying; or
(f) damaged the Goods by unreasonable or unintended use.
17.2 The Seller is entitled to ask for proof of purchase when Goods are returned, and if such a request is made, then the Buyer will furnish such information.
17.3 The Seller is not liable if:
(a) the Goods become unfit for a particular purpose after leaving the Seller’s control, or
(b) if it is unreasonable for the Buyer to rely on the Seller’s skill and judgment.
17.4 The Buyer must return Goods within a reasonable period of time. If not, the Seller is under no obligation to accept the Goods.
17.5 The Seller may ask the Buyer to demonstrate that the problem with the Goods was/is not the Buyer’s fault, and if such a request is made, then the Buyer will provide the requested demonstration.
18. GOODS SOLD
All Goods to be supplied by the Seller to the Buyer are as described on the purchase order agreed by the Seller and the Buyer and the description on such purchase order modified as so agreed prevails over all other descriptions including any specification or enquiry of the Buyer.
19. CANCELLATION AND TERMINATION
19.1 No order may be cancelled by the Buyer except with consent in writing and on terms which will indemnify the Seller against all losses.
19.2 The Seller shall be entitled to terminate this contract upon the happening of the following events:
(a) The Buyer’s failure to pay any sum due to the Seller;
(b) The Buyer’s breach of any other clause of these Conditions; and
(c) any other event occurs or circumstance arises, financial or otherwise, which, in the reasonable opinion of the Seller, is likely materially and adversely to affect the ability of the Buyer to observe any of its payment obligations to the Seller, and in any such event the Buyer shall be deemed to be in breach of its obligations under these Conditions.
20.1 Neither the Seller nor the Buyer will disclose information of the kind referred to in section 275(1) of the PPSA.
20.2 The Buyer will not authorise the disclosure of any information of the kind referred to in section 275(1) of the PPSA at any time.
The whole or any part of a clause of these Conditions shall be capable of severance without affecting the rest of these Conditions.
If the Seller elects not to exercise any of its rights arising as a result of a breach of these Conditions, that will not constitute a waiver of any rights of the Seller relating to any subsequent or other breach.
23. PLACE OF CONTRACT
20.3 This contract for sale of the Goods is made in the state of New South Wales.
20.4 The parties submit all disputes arising between them to the courts of New South Wales,