Tong Metal Pty Ltd – Terms & Conditions of Trade
1.1 “Fabricator” means Tong Metal Pty Ltd ATF Tong Metal Trust T/A Tong Metal Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Tong Metal Pty Ltd ATF Tong Metal Trust T/A Tong Metal Pty Ltd.
1.2 “Client” means the person/s buying the Goods as specified in any invoice, document or order, and if there is more than one Client is a reference to each Client jointly and severally.
1.3 “Goods” means all Goods or Services supplied by the Fabricator to the Client at the Client’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable (plus any GST where applicable) for the Goods as agreed between the Fabricator and the Client in accordance with clause 5 below.
1.5 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the consent of both parties in writing, and shall prevail to the extent of any inconsistency with any other document or contract between the Client and the Fabricator.
2.3 Goods are supplied by the Fabricator only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Client’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
3. Electronic Transactions (Queensland) Act 2001
3.1 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
4. Change in Control
4.1 The Client shall give the Fabricator not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, or business practice). The Client shall be liable for any loss incurred by the Fabricator as a result of the Client’s failure to comply with this clause.
5. Price and Payment
5.1 At the Fabricator’s sole discretion, the Price shall be either:
(a) as indicated on any invoice provided by the Fabricator to the Client; or
(b) the Price as at the date of delivery of the Goods according to the Fabricator’s current price list; or
(c) the Fabricator’s quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
5.2 The Fabricator reserves the right to change the Price if a variation to the Fabricator’s quotation is requested. Any variation from the plan of scheduled Services or specifications (including, but not limited to, any variation as a result of increases to the Fabricator in the cost of materials and labour) will be charged for on the basis of the Fabricator’s quotation and will be shown as variations on the invoice. The Client shall be required to respond to any variation submitted by the Fabricator within ten (10) working days. Failure to do so will entitle the Fabricator to add the cost of the variation to the Price. Payment for all variations must be made in full at the time of their completion.
5.3 At the Fabricator’s sole discretion, a non-refundable deposit may be required.
5.4 Time for payment for the Goods being of the essence, the Price will be payable by the Client on the date/s determined by the Fabricator, which may be:
(a) on delivery of the Goods;
(b) before delivery of the Goods;
(c) by way of instalments/progress payments in accordance with the Fabricator’s payment schedule;
(d) the date specified on any invoice or other form as being the date for payment; or
(e) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Fabricator.
5.5 Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Fabricator.
5.6 The Client shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Client by the Fabricator nor to withhold payment of any invoice because part of that invoice is in dispute.
5.7 Unless otherwise stated the Price does not include GST. In addition to the Price, the Client must pay to the Fabricator an amount equal to any GST the Fabricator must pay for any supply by the Fabricator under this or any other contract for the sale of the Goods. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Price. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
6. Delivery of Goods
6.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Client or the Client’s nominated carrier takes possession of the Goods at the Fabricator’s address; or
(b) the Fabricator (or the Fabricator’s nominated carrier) delivers the Goods to the Client’s nominated address even if the Client is not present at the address.
6.2 At the Fabricator’s sole discretion, the cost of delivery is either included in the Price or is in addition to the Price.
6.3 Any time specified by the Fabricator for delivery of the Goods is an estimate only. The Client must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. The Fabricator will not be liable for any loss or damage incurred by the Client as a result of the delivery being late. In the event that the Client is unable to take delivery of the Goods as arranged then the Fabricator shall be entitled to charge a reasonable fee for redelivery and/or storage.
6.4 Delivery of the Goods to a third party nominated by the Client is deemed to be delivery to the Client for the purposes of this contract.
6.5 The Fabricator may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
7.1 Risk of damage to or loss of the Goods passes to the Client on Delivery and the Client must insure the Goods on or before Delivery.
7.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Client, the Fabricator is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Fabricator is sufficient evidence of the Fabricator’s rights to receive the insurance proceeds without the need for any person dealing with the Fabricator to make further enquiries.
7.3 If the Client requests the Fabricator to leave Goods outside the Fabricator’s premises for collection or to deliver the Goods to an unattended location, then such Goods shall be left at the Client’s sole risk.
7.4 Where the Client is to supply the Fabricator with any design specifications (including, but not limited to CAD drawings) the Client shall be responsible for providing accurate data. The Fabricator shall not be liable whatsoever for any errors in the Goods that are caused by incorrect or inaccurate data being supplied by the Client.
7.5 Where the Client has supplied materials for the Fabricator to complete the Services, the Client acknowledges that they accept responsibility for the suitability of purpose, quality and any faults inherent in the materials. The Fabricator shall not be responsible for any defects in the Services, any loss or damage to the Goods (or any part thereof), howsoever arising from the use of materials supplied by the Client.
7.6 Any advice, recommendation, information, assistance or service provided by the Fabricator in relation to Goods or Services supplied is given in good faith, is based on the Fabricator’s own knowledge and experience and shall be accepted without liability on the part of the Fabricator and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Goods or Services.
7.7 The Client acknowledges that Goods supplied may exhibit variations in shade, colour, texture, surface and finish, and may fade or change colour over time. The Fabricator will make every effort to match batches of product supplied in order to minimise such variations but shall not be liable in any way whatsoever where such variations occur.
8.1 The Fabricator and the Client agree that ownership of the Goods shall not pass until:
(a) the Client has paid the Fabricator all amounts owing to the Fabricator; and
(b) the Client has met all of its other obligations to the Fabricator.
8.2 Receipt by the Fabricator of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
8.3 It is further agreed that, until ownership of the Goods passes to the Client in accordance with clause 8.1:
(a) the Client is only a bailee of the Goods and must return the Goods to the Fabricator on request.
(b) the Client holds the benefit of the Client’s insurance of the Goods on trust for the Fabricator and must pay to the Fabricator the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Client must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Client sells, disposes or parts with possession of the Goods then the Client must hold the proceeds of any such act on trust for the Fabricator and must pay or deliver the proceeds to the Fabricator on demand.
(d) the Client should not convert or process the Goods or intermix them with other goods but if the Client does so then the Client holds the resulting product on trust for the benefit of the Fabricator and must sell, dispose of or return the resulting product to the Fabricator as it so directs.
(e) the Client irrevocably authorises the Fabricator to enter any premises where the Fabricator believes the Goods are kept and recover possession of the Goods.
(f) the Fabricator may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Client shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of the Fabricator.
(h) the Fabricator may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Client.
9. Personal Property Securities Act 2009 (“PPSA”)
9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
9.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods and/or collateral (account) – being a monetary obligation of the Client to the Fabricator for Services – that have previously been supplied and that will be supplied in the future by the Fabricator to the Client.
9.3 The Client undertakes to:
(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Fabricator may reasonably require to;
(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
(ii) register any other document required to be registered by the PPSA; or
(iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii);
(b) indemnify, and upon demand reimburse, the Fabricator for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
(c) not register a financing change statement in respect of a security interest without the prior written consent of the Fabricator;
(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods and/or collateral (account) in favour of a third party without the prior written consent of the Fabricator;
(e) immediately advise the Fabricator of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
9.4 The Fabricator and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
9.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
9.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
9.7 Unless otherwise agreed to in writing by the Fabricator, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
9.8 The Client must unconditionally ratify any actions taken by the Fabricator under clauses 9.3 to 9.5.
9.9 Subject to any express provisions to the contrary (including those contained in this clause 9), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
10. Security and Charge
10.1 In consideration of the Fabricator agreeing to supply the Goods, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
10.2 The Client indemnifies the Fabricator from and against all the Fabricator’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Fabricator’s rights under this clause.
10.3 The Client irrevocably appoints the Fabricator and each director of the Fabricator as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Client’s behalf.
11. Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA)
11.1 The Client must inspect the Goods on delivery and must within seven (7) days of delivery notify the Fabricator in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Client must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Fabricator to inspect the Goods.
11.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (NonExcluded Guarantees).
11.3 The Fabricator acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
11.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Fabricator makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. The Fabricator’s liability in respect of these warranties is limited to the fullest extent permitted by law.
11.5 If the Client is a consumer within the meaning of the CCA, the Fabricator’s liability is limited to the extent permitted by section 64A of Schedule 2.
11.6 If the Fabricator is required to replace the Goods under this clause or the CCA, but is unable to do so, the Fabricator may refund any money the Client has paid for the Goods.
11.7 If the Client is not a consumer within the meaning of the CCA, the Fabricator’s liability for any defect or damage in the Goods is:
(a) limited to the value of any express warranty or warranty card provided to the Client by the Fabricator at the Fabricator’s sole discretion;
(b) limited to any warranty to which the Fabricator is entitled, if the Fabricator did not manufacture the Goods;
(c) otherwise negated absolutely.
11.8 Subject to this clause 11, returns will only be accepted provided that:
(a) the Client has complied with the provisions of clause 11.1; and
(b) the Fabricator has agreed that the Goods are defective; and
(c) the Goods are returned within a reasonable time at the Client’s cost (if that cost is not significant); and
(d) the Goods are returned in as close a condition to that in which they were delivered as is possible.
11.9 Notwithstanding clauses 11.1 to 11.8 but subject to the CCA, the Fabricator shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
(a) the Client failing to properly maintain or store any Goods;
(b) the Client using the Goods for any purpose other than that for which they were designed;
(c) the Client continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
(d) the Client failing to follow any instructions or guidelines provided by the Fabricator;
(e) fair wear and tear, any accident, or act of God.
11.10 In the case of second hand Goods, unless the Client is a consumer under the CCA, the Client acknowledges that it has had full opportunity to inspect the second hand Goods prior to delivery and accepts them with all faults and that to the extent permitted by law no warranty is given by the Fabricator as to the quality or suitability for any purpose and any implied warranty, statutory or otherwise, is expressly excluded. The Client acknowledges and agrees that the Fabricator has agreed to provide the Client with the second hand Goods and calculated the Price of the second hand Goods in reliance of this clause 11.10.
11.11 Notwithstanding anything contained in this clause if the Fabricator is required by a law to accept a return then the Fabricator will only accept a return on the conditions imposed by that law.
12. Intellectual Property
12.1 Where the Fabricator has designed, drawn or developed Goods for the Client, then the copyright in any designs and drawings and documents shall remain the property of the Fabricator. Under no circumstances may such designs, drawings and documents be used without the express written approval of the Fabricator.
12.2 The Client warrants that all designs, specifications or instructions given to the Fabricator will not cause the Fabricator to infringe any patent, registered design or trademark in the execution of the Client’s order and the Client agrees to indemnify the Fabricator against any action taken by a third party against the Fabricator in respect of any such infringement.
12.3 The Client agrees that the Fabricator may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which the Fabricator has created for the Client.
13. Default and Consequences of Default
13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Fabricator’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
13.2 If the Client owes the Fabricator any money the Client shall indemnify the Fabricator from and against all costs and disbursements incurred by the Fabricator in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Fabricator’s contract default fee, and bank dishonour fees).
13.3 Further to any other rights or remedies the Fabricator may have under this contract, if a Client has made payment to the Fabricator, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Fabricator under this clause 13 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this contract.
13.4 Without prejudice to the Fabricator’s other remedies at law the Fabricator shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Fabricator shall, whether or not due for payment, become immediately payable if:
(a) any money payable to the Fabricator becomes overdue, or in the Fabricator’s opinion the Client will be unable to make a payment when it falls due;
(b) the Client has exceeded any applicable credit limit provided by the Fabricator;
(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
14.1 Without prejudice to any other remedies the Fabricator may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Fabricator may suspend or terminate the supply of Goods to the Client. The Fabricator will not be liable to the Client for any loss or damage the Client suffers because the Fabricator has exercised its rights under this clause.
14.2 The Fabricator may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Client. On giving such notice the Fabricator shall repay to the Client any money paid by the Client for the Goods. The Fabricator shall not be liable for any loss or damage whatsoever arising from such cancellation.
14.3 In the event that the Client cancels delivery of Goods the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Fabricator as a direct result of the cancellation (including, but not limited to, any loss of profits).
14.4 Cancellation of orders for Goods made to the Client’s specifications, or for non-stocklist items, will definitely not be accepted once production has commenced, or an order has been placed.
15. Privacy Act 1988
15.1 The Client agrees for the Fabricator to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, previous credit applications, credit history) about the Client in relation to credit provided by the Fabricator.
15.2 The Client agrees that the Fabricator may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
(a) to assess an application by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
15.3 The Client consents to the Fabricator being given a consumer credit report to collect overdue payment on commercial credit.
15.4 The Client agrees that personal credit information provided may be used and retained by the Fabricator for the following purposes (and for other agreed purposes or required by):
(a) the provision of Goods; and/or
(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Goods; and/or
(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
(d) enabling the collection of amounts outstanding in relation to the Goods.
15.5 The Fabricator may give information about the Client to a CRB for the following purposes:
(a) to obtain a consumer credit report;
(b) allow the CRB to create or maintain a credit information file about the Client including credit history.
15.6 The information given to the CRB may include:
(a) personal information as outlined in 15.1 above; (c) whether the credit provider is a licensee;
(d) type of consumer credit;
(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
(f) advice of consumer credit defaults, overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Fabricator has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
(g) information that, in the opinion of the Fabricator, the Client has committed a serious credit infringement;
(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150). 15.7 The Client shall have the right to request (by e-mail) from the Fabricator:
(a) a copy of the information about the Client retained by the Fabricator and the right to request that the Fabricator correct any incorrect information; and
(b) that the Fabricator does not disclose any personal information about the Client for the purpose of direct marketing. 15.8 The Fabricator will destroy personal information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this contract or is required to be maintained and/or stored in accordance with the law.15.9 The Client can make a privacy complaint by contacting the Fabricator via e-mail. The Fabricator will respond to that complaint within seven
(7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
16. Unpaid Seller’s Rights
16.1 Where the Client has left any item with the Fabricator for repair, modification, exchange or for the Fabricator to perform any other service in relation to the item and the Fabricator has not received or been tendered the whole of any monies owing to it by the Client, the Fabricator shall have, until all monies owing to the Fabricator are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
16.2 The lien of the Fabricator shall continue despite the commencement of proceedings, or judgment for any monies owing to the Fabricator having been obtained against the Client.
17. Service of Notices
17.1 Any written notice given under this contract shall be deemed to have been given and received:
(a) by handing the notice to the other party, in person;
(b) by leaving it at the address of the other party as stated in this contract;
(c) by sending it by registered post to the address of the other party as stated in this contract;
(d) if sent by facsimile transmission to the fax number of the other party as stated in this contract (if any), on receipt of confirmation of the transmission;
(e) if sent by email to the other party’s last known email address. 17.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.
18.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland, the state in which the Fabricator has its principal place of business, and are subject to the jurisdiction of the courts in Queensland.
18.3 Subject to clause 11, the Fabricator shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Fabricator of these terms and conditions (alternatively the Fabricator’s liability shall be limited to damages which under no circumstances shall exceed the Price of the Goods).
18.4 The Fabricator may licence and/or assign all or any part of its rights and/or obligations under this contract without the Client’s consent.
18.5 The Client cannot licence or assign without the written approval of the Fabricator.
18.6 The Fabricator may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Fabricator’s sub-contractors without the authority of the Fabricator.
18.7 The Client agrees that the Fabricator may amend these terms and conditions by notifying the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Fabricator to provide Goods to the Client.
18.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.9 Both parties warrant that they have the power to enter into this contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this contract creates binding and valid legal obligations on them.