(PDF version of document is here)

Tolwong Trading PTY LTD trading as

Powerform Controls

 

TERMS OF TRADE

 

Unless otherwise stipulated by POWERFORM CONTROLS, the Customer is deemed to purchase and/or accept delivery of the Goods upon the following conditions:

 

1       Definitions

 

1.1     In these Terms, unless the contrary intention appears:

“ACL” means the Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010.

“Customer” means the individual who requests POWERFORM CONTROLS to supply the Goods or if the individual represents a company or partnership that company or partnership upon proof that such individual is duly authorised to make such request on behalf of the relevant company or partnership.

“Goods” means the goods supplied or services rendered by POWERFORM CONTROLS pursuant to these Terms.

“GST” has the meaning given to it in A New Tax System (Goods & Services Tax) Act 1999.

“POWERFORM CONTROLS” means Tolwong Trading Pty Limited ACN 164 192 410 and its successors and permitted assigns.

“PPSA” means the Personal Property Securities Act 2009.

“PPSR” means the Personal Property Securities Register.

“Price” means the price of the Goods charged to the Customer.

“Customer Order” means a purchase order or other contractual request for the provision of Goods received by POWERFORM CONTROLS.

“Terms” means the terms of trade as specified in this document.

1.2     Headings are for convenience only.

2.       Orders

2.1     A Customer Order is not binding on POWERFORM CONTROLS until accepted by POWERFORM CONTROLS.

2.2     POWERFORM CONTROLS is not required to accept a Customer Order.

2.3     POWERFORM CONTROLS will confirm its acceptance of a Customer Order by issuing an invoice or order acknowledgement to the Customer.

3.       Price & Adjustment

3.1     Unless otherwise stated, Prices quoted are exclusive of GST, other taxes, duties, charges (including bank fees), insurance excess (if applicable) and the cost of freight and delivery.

3.2     The Customer will not be entitled to make any deduction from the Price in respect of any set-off or counterclaim.

3.3     Prices may vary from those published or quoted from time to time. The Customer will be charged at the price current at the time an order is received as indicated in the POWERFORM CONTROLS invoice.

 

4.       Terms of Payment

4.1     Terms of payment are strictly net cash on day of delivery or receipt of Goods, unless otherwise agreed in writing by POWERFORM CONTROLS. Credit terms commence from earlier of date of invoice and first delivery of Goods. Any deposit required by POWERFORM CONTROLS must be paid at the same time as placing of a Customer Order.

4.2     If the Customer commits any default, all monies due and owing by it to POWERFORM CONTROLS under these Terms, whether by way of credit or otherwise, will become due and payable immediately and all credit terms are thereafter withdrawn.

4.3     The time for payment of any moneys due to POWERFORM CONTROLS is of the essence.

4.4     Receipt of a cheque or other negotiable instrument by POWERFORM CONTROLS will not constitute payment and the Customer will remain liable for the Price until such cheque or negotiable instrument is paid in full in cleared funds.

4.5     Without prejudice to any other rights of POWERFORM CONTROLS, if the Customer fails to pay an invoice by the due date or any other moneys payable by the Customer under these Terms, that failure will constitute a default and interest at the rate of 1% per month calculated on a daily basis will be payable on all moneys outstanding from the date payment is due until the date payment is received by POWERFORM CONTROLS.

5.       Title & Risk

5.1     Title in the Goods will remain with POWERFORM CONTROLS until the Customer has paid the Price in full, together with all other moneys payable to POWERFORM CONTROLS under these Terms.

5.2     For so long as title in the Goods remains with POWERFORM CONTROLS:

          (a)      POWERFORM CONTROLS (or any person authorised by POWERFORM CONTROLS for the purpose) will have the right, with or without prior notice to the Customer, to retake possession of the Goods (and to enter any premises occupied by the Customer without being liable for any damage thereby caused) and POWERFORM CONTROLS may resell the Goods; and/or

          (b)      The Customer will, if so requested by POWERFORM CONTROLS, store separately those Goods in respect of which title is retained by POWERFORM CONTROLS and clearly identify such Goods as the property of POWERFORM CONTROLS.

5.3     Where Goods in respect of which title has not passed to the Customer is sold by the Customer, any book debt created upon the sale of such Goods and the proceeds of sale of such Goods, when received by the Customer, will be held upon trust by the Customer for POWERFORM CONTROLS. Any proceeds of sale so received by the Customer will be placed in a separate bank account and will first be applied towards the satisfaction of all indebtedness of the Customer to POWERFORM CONTROLS.

5.4     Unless the parties otherwise agree in writing and notwithstanding the provisions of this clause 4, the Goods will be at the Customer's risk from the earlier of:

          (a)      the time at which delivery is deemed to take place pursuant to clause 6; and

          (b)      the time at which title in the Goods passes to the Customer.

5.5     The Customer acknowledges that this Clause 5 is an essential term and condition of supply, which will not be varied by POWERFORM CONTROLS except by agreement with it in writing and the provisions of this Clause will apply despite any arrangement under which POWERFORM CONTROLS grants the Customer credit.

6.       Delivery & Packaging

6.1     POWERFORM CONTROLS will make all reasonable endeavours to supply the Goods on the agreed delivery date but any time or date stated for delivery is given and intended as an estimate only.

6.2     Unless otherwise stated in writing, delivery will be deemed to take place on the earlier of:

          (a)      the physical delivery of the Goods to the Customer's carrier (or its agent);

          (b)      the physical delivery of the Goods to the Customer's nominated delivery address, site or place of business;

          (c)      if applicable the performance of any services.

          (d)      thirty (30) days after POWERFORM CONTROLS notifies the Customer in writing that the Goods are available for collection.

6.3     Signature of any delivery note by any agent, employee or representative of the Customer or, or where delivery is to any independent carrier, by such carrier or its agent, or a third party despatch reference or consignment note will be conclusive proof of delivery. If the delivery address is a building site then the signature of any person from the site office is also conclusive proof of delivery unless POWERFORM CONTROLS is notified in writing before dispatch, of alternative arrangements. Unloading of Goods upon delivery by POWERFORM CONTROLS will be at the cost and risk of the Customer.

6.4     The Customer will be liable for any storage charges, freight and related costs incurred by POWERFORM CONTROLS where delivery is delayed by the Customer. POWERFORM CONTROLS may charge a delay fee of 1% of the invoice value where Customer delivery delays extend greater than 7 days.

6.5     Unless otherwise stated in writing, POWERFORM CONTROLS will be entitled to make partial deliveries or deliveries by such instalments as the POWERFORM CONTROLS may reasonably determine, and may invoice for each partial delivery.

6.6     Packaging of Goods will be by POWERFORM CONTROLS standard packaging material unless otherwise specified by the Customer.

6.7     Minimum quantities or order value may be set from time to time by POWERFORM CONTROLS.

7.       Variations, Delays & Cancellation

7.1     POWERFORM CONTROLS is not liable for delay in delivery occasioned by shortage of stock, delays in transit, accidents, strikes or other unavoidable occurrence. POWERFORM CONTROLS will use its best endeavours to notify the Customer of supply shortages or delays in delivery as soon as it becomes aware of such.

7.2     If POWERFORM CONTROLS is unable to secure the quantity of the Goods required to fill the Customer Order, the Customer agrees to accept whatever reasonable quantity POWERFORM CONTROLS is able to deliver and pay accordingly.

7.3     No Customer Order may be cancelled or varied except with the consent in writing of, and on terms, which will, indemnify POWERFORM CONTROLS against all losses. Any quotation given based on proposed bulk orders, may be amended by POWERFORM CONTROLS should the Customer Order subsequently be varied.

7.4     If a Customer Order is cancelled by the Customer:

          (a)      where design or production of the Goods has not commenced, 10% of the invoice price is payable to POWERFORM CONTROLS; or

          (b)      where design or production of the Goods has commenced, the full invoice price is payable to POWERFORM CONTROLS (less any resale value for the Goods).

8.       Warranties

8.1     The Customer accepts all risk and responsibility for the Goods being fit for purpose and of a particular quality, safety or suitability. Any material published or distributed by POWERFORM CONTROLS containing descriptions, Illustrations, drawings, tolerances, data, dimensions or weights regarding the Goods are given in good faith and are general descriptions only.

8.2     The Customer acknowledges that POWERFORM CONTROLS, its servants and agents have not made any other statement or representation, undertaking or warranty regarding the fitness or condition of the Goods or any such matter which is or might be relevant to the Customer purchasing the Goods.

8.3     The Customer acknowledges that POWERFORM CONTROLS is not responsible for any statement or representation, undertaking or warranty made or given by the Customer to third parties in relation to the Goods.

8.4     Subject to this Clause, POWERFORM CONTROLS will, on behalf of the Customer enforce any warranties and/or guarantees given by a third party manufacturer or supplier of the Goods. POWERFORM CONTROLS’s liability under a warranty claim is limited to the repair or replacement of the Goods that are defective under normal use and working conditions and which have not be altered, repaired or otherwise tampered with by a third party or the Customer.

8.5     POWERFORM CONTROLS will not be liable for any loss, other expense, inconvenience or consequential damages, occasioned by the Goods, or the failure of the Goods, their design or construction.

8.6     Subject to all rights and remedies which are provided pursuant to legislation and which cannot be excluded, restricted or modified by agreement, all terms, conditions, warranties and representations (whenever made and whether expressed or implied by circumstances, legislation, common law or otherwise) not expressed in these Terms are hereby negatived and excluded.

8.7     To the extent that the supply of Goods to a Customer falls within the ACL, POWERFORM CONTROLS acknowledges that the Goods come with guarantees that cannot be excluded under the ACL. The Customer is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.

9.       Claims

9.1     Subject to clause 8, no claim regarding shortages, the state or condition of the Goods will be accepted by POWERFORM CONTROLS unless it is received by POWERFORM CONTROLS within 7 days of delivery and POWERFORM CONTROLS is given reasonable opportunity to investigate the claim.

9.2     Goods returned following acceptance of a claim to POWERFORM CONTROLS, must be accompanied by the original invoice or delivery docket and must be unaltered and in the original packaging.

9.3     Any credit for goods returned is at the discretion of POWERFORM CONTROLS.

10.    Indemnity and Limitation of Liability

10.1   The parties agree to indemnify each other from any and all actions, claims, demands, cost, losses, damages and expenses which may be brought against the other as a result of any act or omission, negligent or otherwise, by the other.

10.2   Neither party will be liable to the other or third parties for any loss of profits, loss of production or consequential or indirect loss or damage.

10.3   POWERFORM CONTROL’S liability for any claim whether under these Terms or otherwise is limited to the Price paid by the Customer for the Goods under the Customer Order.

11.    Default

11.1   If the Customer:

          (a)      defaults in the due payment of any moneys payable to POWERFORM CONTROLS, whether under these Terms or otherwise; or

          (b)      is in default in the performance of its obligations under these Terms or any other agreement between POWERFORM CONTROLS and the Customer; or

          (c)      commits any act of bankruptcy, enters into any composition or arrangement with its creditors or (in the case of a company) does any act which would render it liable to be wound up or a resolution passed or a petition is filed for the winding up of the Customer or if a receiver is appointed over all or any of its assets,

          POWERFORM CONTROLS may, at its option, suspend or terminate the supply of any further Goods, and payment for Goods supplied up to the date of such suspension or termination and any other moneys payable pursuant to these Terms or any other agreement between the parties, will immediately become due and payable.

12.    PPSA

12.1   The Customer acknowledges that these Terms create a security interest under the PPSA and that it has received value as at the commencement of these Terms. The Customer and POWERFORM CONTROLS have not agreed to postpone the time for attachment of the security interest granted to POWERFORM CONTROLS under these Terms.

12.2   The Customer:

          (a)      must at POWERFORM CONTROLS’s request, promptly execute any documents and do anything required to register POWERFORM CONTROLS’s security interest in the Goods on the PPSR;

          (b)     must indemnify, and upon demand reimburse POWERFORM CONTROLS for all expenses incurred in registering a financing statement on the PPSR;

          (c)      must keep full and complete records of the Goods;

          (d)     must not without the prior written consent of POWERFORM CONTROLS, sell, lease, dispose of, create a security interest in, mortgage or part with possession of the Goods or any interest in them (or purport or attempt to purport to do such a thing) or permit any lien over the Goods;

          (e)      without limiting any other right POWERFORM CONTROLS may have, must immediately return the Goods if requested to do so by POWERFORM CONTROLS following non-payment of any amount owing by the Customer to POWERFORM CONTROLS or following breach of any other obligation of the Customer to POWERFORM CONTROLS;

          (f)       gives POWERFORM CONTROLS the right to inspect the Goods or any part of it at all reasonable times;

          (g)     must not change its name, address or contact details without providing POWERFORM CONTROLS prior written notice; and

          (h)      must not register a financing change statement or a change demand without the prior written consent of POWERFORM CONTROLS.

12.3   So far as permitted by the PPSA, the Customer waives its right:

          (a)      to receive a copy of any verification statement or financing change statement or a statement of account on sale of the Goods;

          (b)     to receive any notice required under the PPSA, including a notice that POWERFORM CONTROLS intends to sell the Goods or to retain the Goods on enforcement of the security interest granted to POWERFORM CONTROLS;

          (c)      to object to a proposal by POWERFORM CONTROLS to retain the Goods in satisfaction of any obligation owed by the Customer to POWERFORM CONTROLS;

          (d)     where any Goods become attached to other goods and are deemed an accession as defined in the PPSA, to not have any goods damaged when POWERFORM CONTROLS removes the accession, to receive notice of removal of the accession and to apply to the court for an order concerning the removal of the accession, under the PPSA.

12.4   By submitting a Customer Order, entering into a POWERFORM CONTROLS credit application, or acceptance of delivery of Goods, the Customer acknowledges that it has entered into a security agreement as defined by the PPSA and that POWERFORM CONTROLS may register its security interest in the PPSR.

13.    Intellectual Property

13.1   Any Goods supplied by POWERFORM CONTROLS to the Customer may be subject to intellectual property in the form of patents, designs, copyright, trademarks, trade names, licensing hardware or software codes of third parties and the Customer agrees to protect and keep safe such intellectual property.

13.2   The Customer indemnifies POWERFORM CONTROLS against any damage, loss, costs or expenses (including legal expenses on an indemnity basis) incurred by POWERFORM CONTROLS arising from the Customer’s breach of any third party licence agreement relative to the intellectual property.

13.3   The Customer agrees not to reverse engineer or offer any of POWERFORM CONTROLS. Goods for reverse engineering or be involved in any manner with any aspect of copying, improving or modifying designs, electronic hardware or circuitry that may be contained within any of POWERFORM CONTROLS Goods including any third party components.

14.    Exclusion of Customer Conditions

14.1   The placing of an order by the Customer with POWERFORM CONTROLS for Goods includes the acceptance of these Terms as the sole basis of sale to the exclusion of any conditions of sale appearing on any document of the Customer.

14.2   These Terms will not be modified by any condition expressed in any document unless such modification is accepted in writing by POWERFORM CONTROLS.

15.    Notices

15.1   Any notice required under these Terms will be deemed effectively given if:

          (a)      Mailed to the registered company or (if the recipient is not a company) last known principal place of business of the recipient, in which case notice will be deemed received 3 working days after mailing.

          (b)      Delivered by hand to the registered office or (if the recipient is not a company) last known principal place of business of the recipient.

          (c)      In the case of facsimile transmission, on production of a transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the addressee.

16.    Privacy & Confidentiality

16.1   The Privacy Act 1998 allows POWERFORM CONTROLS to give a credit-reporting agency personal information contained in a credit application. Information which may be given includes particulars of the Customer’s identity (including name, sex, date of birth, address, both current and previous, and in the case of an individual, driving licence number and employer’s name).

16.2   The Customer consents to and authorises POWERFORM CONTROLS:

          (a)      to obtain information about the Customer’s credit worthiness from its bank or any trade reference and/or any other credit provider and/or credit reporting agency; and

          (b)     to give a credit reporting agency information about the Customers credit.

16.3   Each party will keep information it receives under this contract concerning the other party in the strictest of confidence.

17.    General

17.1   These Terms may be varied from time to time by POWERFORM CONTROLS in its absolute discretion. Such variation will either be sent to the Customer by fax, email, post, with an invoice or be publicly posted on the POWERFORM CONTROLS website at www.powerformcontrols.com.au.

17.2   The Customer will not assign or transfer any of its benefits or obligations under these Terms.

17.3   If any provision of these Terms shall be void or unenforceable by reason of law, those provisions will be deleted and the remaining provisions of these Terms will continue in full force and effect.

17.4   These Terms and POWERFORM CONTROLS order acceptance or invoice constitute the entire agreement between the parties.

17.5   These Terms and the contract that is created between the parties will be construed with, and governed in all respects by, the laws of New South Wales, Australia.