Terms & Conditions of Supply of Goods
ARNEG OCEANIA PTY LTD
ABN 27 076 781 434
The terms and conditions set out below apply to the sale of goods by Arneg Oceania Pty Ltd, in consideration of it agreeing to sell goods.
1.1 In these terms and conditions: Claim against any person means any claim, action, proceeding, loss, damage, cost, expense or liability whatsoever incurred or suffered by, or brought or made or recovered against, that person, no matter how arising (whether or not presently ascertained, immediate, future or contingent); Customer means the purchaser of goods from the Seller; Goods means all goods from time to time ordered from Arneg Oceania Pty Ltd by the Customer; Overdue Rate means the rate of interest per centum per annum that is equal to the day bank rate as published in the Australian Financial Review plus 4%. The Overdue Rate shall be adjusted on the first business day of each month. Seller means Arneg Oceania Pty Ltd ACN 076 781 434 its successors and assigns; and Terms means these terms and conditions.
1.2 These Terms shall prevail over any terms and conditions of the Customer in relation to the purchase of Goods. 1.3 Where 2 or more persons and/or bodies corporate comprise the Customer, the obligations on the part of the Customer in these Terms shall bind them jointly and severally. 1.4 Where the Customer acts in the capacity of trustee of any trust, the obligations on the part of the Customer in these Terms bind the Customer in its own right as well as in its capacity as trustee. 1.5 No person is authorised to make any representations inconsistent with these Terms, and you acknowledge that you have not relied upon any oral promise or representations not expressly agreed in writing by us. Any variation of these Terms must be reduced to writing and signed by the Seller and Customer.
2.1 The price for Goods may be subject to change without notice and is that prevailing at the date of acceptance by the Seller of the Customer’s order for those Goods.
2.2 Unless otherwise agreed by the Seller in writing, the price does not include applicable sales tax, goods and services tax or other taxes. The Customer is to pay and indemnify the Seller against all such taxes.
3.1 The Customer must pay to the Seller in full, without deduction or set-off, all amounts outstanding on invoices within 30 days from the date of the invoice.
3.2 Unless the Customer is an individual who is acquiring the relevant Goods for reasons other than predominantly for business or investment purposes, the Customer shall pay interest at the Overdue Rate on all amounts not paid in accordance with clause 3.1, to be calculated daily and compounded at the end of each month which any such amount remains unpaid.
3.3 The Customer must pay the Seller and indemnifies the Seller against all costs and expenses incurred by the Seller in connection with the recovery of any outstanding amount due and payable by the Customer, including those incurred in instructing collection agents or solicitors on an indemnity basis.
3.4 A certificate signed by an officer or employee of the Seller stating the amount then owing by the Customer will be conclusive evidence of that amount. 3.5 The Seller may terminate these Terms or suspend performance for non-payment by the Customer pursuant to these Terms.
4. RETENTION OF TITLE
4.1 Title to the Goods remains with the Seller until the Seller has been paid in full by the Customer for the Goods and for all other monies owing by the Customer to the Seller.
4.2 Risk in the Goods passes to the Customer on delivery of them to the Customer which is deemed to occur when the Goods leave the Seller’s premises.
4.3 Until title to the Goods pass to the Customer, the Customer: (a) Must hold the Goods as bailee and fiduciary agent for the Seller; (b) Must store the Goods separately; (c) may not sell the Goods but if in breach of this clause the Customer does sell the Goods then the Customer acts as the Seller’s agent (with authority to warrant the Seller's title, but no authority to give any other warranty) and must hold the sale proceeds on trust for the Seller in a separate account, and not mingle them with any other money until after the Seller has been paid in full; (d) Must insure the Goods for their full replacement value noting the interest of the Seller, and, in the event of any of the Goods being damaged, destroyed or lost, any proceeds of the insurance claim must be paid to the Seller.
4.4 If the Customer does not pay for Goods as agreed, or a controller, administrator, liquidator or provisional liquidator is appointed to the Customer or the Customer commits an act of bankruptcy or a similar event occurs, the Customer’s right to possess, sell or otherwise deal with the Goods or collect sale proceeds of the Goods ceases and the Seller may enter on the Customer’s premises and take possession of the Goods.
4.5 If the Goods are mixed or combined with other goods, the Seller is given ownership of the mixed or combined item to sell and to recover the money owing to it.
4.6 If any provision of this clause is a charge, that provision is severable at the Seller’s option without affecting the other provisions.
The Seller shall use reasonable endeavours to ensure that the Goods are supplied to the Customer on or before the date agreed, but the Seller shall not be liable for any Claims if this does not occur.
6.1 If any defect in materials or workmanship in any component of any Goods appears and the Seller is notified in writing of the defect within 12 months (or 30 days in the case of Goods not sold by the Seller as new) from the date of its invoice, then the Seller will replace or (at its option) repair that component. This does not apply to electric components including motors and lighting and glass components. The Seller is not to be responsible for any labour or transport costs. Further, the Seller shall not be responsible for any claim unless the Customer provides full details of the defect and of the Goods concerned including serial number, the date of installation and such other details as the Seller may reasonably require. Further, if the Seller requests, the Customer shall return the Goods to the Seller to its warehouse in Sydney. All freight and labour costs shall be paid by the Customer.
6.2 To the extent permitted by law, all warranties, guarantees and conditions relating to the Goods are excluded. If the law does not permit this exclusion, then to the extent permitted, the Seller's liability is limited to replacing the Goods or the cost of replacing or acquiring equivalent goods.
6.3 The Seller has no liability for any defect caused or contributed to in the installation or use of the Goods or where the Goods have been altered, added to, repaired or otherwise subjected to technical attention by any person other than the Seller's authorised representative.
6.4 To avoid doubt, the Seller is not liable for any loss or damage due to accident, misuse or fair wear and tear, or for any indirect loss or damage such as loss of profits or other economic loss.
6.5 In no circumstances shall the Seller be liable to pay compensation for any loss or damage sustained by any person.
6.6 Further, the Seller is not responsible for any claim (including any warranty claim) or in any way liable to the Customer (to the extent permitted by law) unless the Customer has paid for the Goods in full in accordance with the Terms.
7. FUTURE SUPPLY
The Seller may at any time suspend the supply of further Goods on credit or otherwise to the Customer, without being required to give reasons and the Seller will not be responsible in any way for any loss suffered or incurred by the Customer due to such suspension.
8.1 Any credit facility granted to the Customer is so granted on the basis of information provided to the Seller.
8.2 In the event of the information materially changing to the possible prejudice of the Seller, the Customer shall advise the Seller immediately after the change.
9. GOVERNING LAW
New South Wales law applies to these Terms. The Customer submits to the jurisdiction of the courts of that State.
10. INSOLVENCY OF CUSTOMER
10.1 If the Seller reasonably considers that the Customer is or may be about to become insolvent or the Customer is unable to perform its obligations under the Terms, the Seller is entitled to cancel this contract or suspend delivery of Goods without any liability to the Customer.
10.2 In this event, if Goods have been delivered to the Customer but not yet paid for, the amounts due shall become immediately due and payable notwithstanding any other provision in these Terms.
11.1 Any notice to be given under these Terms shall be in a durable format addressed to such address as may be notified in writing.
11.2 No waiver by the Seller of any breach of these Terms by the Customer shall be considered as a waiver of any subsequent Terms by the Customer.
11.3 If any provision of these Terms is held by a competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Terms and the remainder of the provisions in question shall not be affected.
12. PERSONAL PROPERTIES SECURITIES ACT 2009 (CTH)
12.1 The Customer acknowledges the Terms constitute a security agreement for the purposes of section 20 of the Personal Property Securities Act 2009 (PPSA) and that a security interest as defined in the PPSA exists and/or is granted in the Goods by the Customer (Security Interest). The Customer further acknowledges the Security Interest is a Purchase Money Security Interest as defined in section 14 of the PPSA.
12.2 The Customer agrees to execute all documents and take such reasonable steps as may be required for the Seller to register the Security Interest.
12.3 The Customer agrees that the following provisions (which would otherwise apply in any enforcement of the Security Interest) do not apply and the Customer waives its rights under these provisions of the PPSA: (i) To receive a notice of intention of removal of an accession (section 95); (ii) When a person with an interest in the whole may retain an accession (section 96); (iii) To receive a notice of enforcement action against liquid assets (section 121(4)); (iv) The Seller’s obligation to dispose of or retain collateral (section 125); (v) To receive a notice of disposal of goods if the Seller purchases the Goods (section 129); (vi) To receive a notice to dispose of the Goods (section 130); (vii) To receive a statement of account following disposal of Goods (section 132(2)); (viii) To receive a statement of account if no disposal of the Goods for each 6 month period (section 132(4)); (ix) To receive notice of any proposal of by the Seller to retain the Goods (section 135(2)); (x) To object to any proposal of by the Seller to either retain or dispose of the Goods (section 137(2)); (xi) To redeem the Goods (section 142); (xii) To reinstate the security agreement (section 143); and (xiii) To receive a notice of any verification statement (sections 157(1) and 157(3)).
12.4 The Customer agrees that where the Seller has rights in addition to those under Chapter 4 of the PPSA, those rights will continue to apply.
12.5 Until ownership of the Goods passes to the Customer, the Customer must not give the Seller a written demand or allow any other person to give the Seller a written demand requiring the Seller to register a financing change statement under the PPSA or enter into (or allow any other person to enter into) the register of personal property securities a financing change statement under the PPSA.
12.6 The Customer acknowledges that it has received value as at the date of first delivery of the Goods and has not agreed to postpone the time for attachment of the Security Interest.
12.7 The Customer irrevocably grants the Seller the right to enter upon the Customer’s property or premises (and without being in any way liable to the Customer or any third party) if the Seller has cause to exercise any of its rights under sections 123 and/or 128 of the PPSA, and the Customer shall indemnify the Seller from any claims made by any third party as a result of such exercise.