TERMS AND CONDITIONS OF SALE (“Terms”)
In these Terms unless the contrary intention appears:
“Additional Charges”includes all delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable by the Customer to AAF arising out of the sale of the Goods/Services.
“Customer”means the person to or for whom the Goods are to be supplied by AAF.
“Goods/Services”means the goods sold to the Customer by AAF and includes any services provided by AAF to Customer.
“PPSA”means thePersonal Property Securities Act 2009 (Cth)
“Purchase Price”means the list price for the goods as charged by AAF at the date of delivery or such other price as may be agreed by AAF and the Customer prior to delivery of the Goods/Services.
1. CUSTOMER’S ACCEPTANCE OF TERMS
The Customer shall be taken to have accepted these Terms without qualification, upon:
- The Customer or any person acting on its behalf placing an order for all or some of the Goods/Services with AAF;
- The Customer or any person acting on its behalf accepting or requesting delivery of the Goods/Services verbally or in writing; or
- The Customer or any such person confirming these Terms by conduct.
These Terms apply (unless otherwise previously agreed in writing) to the supply of Goods/Services by AAF to the Customer from time to time. Any supply of Goods/Services by the AAF to the Customer made after the date of acceptance of these Terms is a supply pursuant to the supply agreement constituted by these Terms and the relevant order accepted by AAF and any such supply does not give rise to a new or separate agreement.
- Any order or offer from the Customer shall constitute an offer to purchase Goods/Services on these terms, notwithstanding anything in that order or offer.
- Notwithstanding any words or conduct by AAF inconsistent with or purporting to vary or reject any of these terms, any contract between AAF and the Customer to purchase Goods/Services is subject to these terms unless and to the extent only that AAF expressly agrees in writing to any variation or has agreed in writing to any terms and conditions inconsistent with these Terms (“Inconsistent Terms”) in which case any such Inconsistent Terms will prevail to the extent of any inconsistency for so long as such Inconsistent Terms remain in force.
- Without limiting the generality of clause 2(b) where a Customer is a party to a separate supply agreement signed by AAF which remains in force, the terms of that agreement shall prevail over any of these terms which are inconsistent.
3. ORDER FOR GOODS
- An order given to AAF is binding on AAF and the Customer, if:
- a written acceptance is signed for or on behalf of AAF; and/or
- the Goods/Services are supplied by AAF in accordance with the order.
- An acceptance of the order by AAF is then to be an acceptance of these Terms by AAF and the Customer and these Terms will override any conditions contained in the Customer’s order. AAF reserves the right to accept a part only of any order by notifying the Customer in writing or by delivering the Goods to the Customer. No order is binding on AAF until accepted by it.
AAF offers limited warranties in respect of some classes of goods and services (“AAF Warranties”). The current terms of the AAF Warranties are displayed in the offices of AAF and copies of the AAF Warranties are available to the Customer from AAF on request. AAF reserves the right to change the terms of the AAF Warranties from time to time in its absolute discretion. The warranty applying to the Goods/Services is the relevant AAF Warranty specified to apply to the class of goods and/or services in which the Goods/Services come within, on the date of delivery.
5. STATUTORY PROVISIONS
- Except as expressly provided in the AAF Warranties or these Terms or as required by law, AAF does not give any other warranty or make any representation whatsoever, including as to the condition, merchantability, correspondence with description or quality of the Goods/Services or as to their suitability or fitness for any use or purpose, and all statutory and implied conditions and warranties are excluded to the full extent permitted by law.
- Where these Terms must, by law, be read and construed subject to any statutory provisions, to the extent permitted by those statutory provisions AAF’s liability for breach of a condition or warranty implied by any statutory provision is limited at AAF’s option to:
- in the case of goods to replacement of the goods or the supply of equivalent goods, or the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- in the case of services to the supply of the services to the supply of the services again or the cost of having the services supplied again.
6. SUITABILITY FOR PURPOSE
The Customer relies on its own skill and judgment and has satisfied itself as to the condition, quality, suitability and fitness of the Goods/Services for the purpose for which the Customer proposes to use the Goods/Services.
7. DELIVERY OF GOODS/SERVICES
- AAF will use reasonable endeavours to meet any delivery or completion date or period quoted but such date or period is an estimate only and is not to be construed as a fixed date or period.
- AAF shall not be responsible nor accept any liability for delay or non-delivery of the Goods/Services or any part of the Goods/Services and if in any circumstances late delivery or partial delivery is tendered by AAF, due to circumstances beyond its control including strikes, shortages of raw materials and accidents, the Customer shall accept and pay for the same under these conditions. In no case shall AAF be liable for any loss or damage resulting either directly or indirectly from a failure to deliver on any specific date.
- Unless stated otherwise in writing, all Goods/Services are supplied ex-works and AAF’s obligation to deliver is satisfied if AAF makes the goods supplied by AAF or items to which AAF has applied treatment (“Goods”) available for collection by the Customer at AAF’s premises. Any Additional Charges for delivery or special packing requested by the Customer shall be at the Customer’s expense and shall be charged in addition to the Purchase Price of the applicable Goods/Services.
- The Customer must collect the Goods within 7 days of the Customer being notified that they are available for collection or AAF will be entitled to charge the Customer AAF’s reasonable expenses in storing the Goods.
- Once the Goods are collected by the Customer, the Customer is responsible (at its own cost) for the storage of the Goods whilst in transit. AAF is not liable to the Customer for any Goods lost or damaged in transit.
- The Customer shall inspect the Goods on delivery and shall notify AAF in writing of any variation between the description, quality or quantity of that which was ordered by the Customer and the description, quality or quantity of that which is delivered to the Customer, within 10 days of delivery to the Customer. To the extent permitted by law, if the Customer does not so notify AAF, the Customer shall be deemed to have accepted the Goods in the condition so delivered and shall be deemed to have waived all or any rights to claim that at the time of delivery there existed any variance with the description, quality or quantity of the Goods ordered by the Customer and the description, quality or quantity of the Goods actually delivered to the Customer. A delivery docket held by AAF shall be prima facie evidence of the description, quality and quantity of the Goods delivered.
Where any Goods are delivered in re-useable skips (“Skips”), the Skips remain the property of AAF at all times. The Skips must be returned at the Customer’s earliest convenience and at the Customer’s expense in the same condition as that in which they were supplied by AAF. The Customer agrees to pay for any Skips not returned in good order and condition within 14 days of delivery of the Goods.
- Risk of loss or damage in respect of items of the Customer delivered to AAF for the application of treatments and which are owned by the Customer (or by another party for on-delivery to the Customer) will at all times remain with the owner and not AAF.
- Risk of loss or damage to Goods owned by AAF and supplied to the Customer shall pass to the Customer at the earlier of the time and place where the Goods cease to be in actual possession or control of AAF or the expiry of one day from the time AAF notifies the Customer the Goods are ready for delivery/collection.
- Unless agreed between the Customer and AAF In writing title and property in Goods supplied by AAF remains with AAF until the Customer has paid the full Purchase Price to AAF, notwithstanding that risk in those Goods may have passed to the Customer. Until the Customer pays the full Purchase Price for the Goods:
- it holds the Goods as bailee of AAF and acknowledges that a fiduciary relationship exists between them;
- it must at its own expense, store the Goods in a way that clearly manifests AAF’s title;
- it must not pledge or grant any security over the Goods and AAF may (in addition to any of its other rights) enter upon the premises on which the Customer holds the goods for the purpose of recovering or reselling them. Any such recovery of Goods is at the discretion of AAF and the Customer may not return Goods (or any part of them) of its own accord; and
- if the Customer resells the Goods before property in the Goods has passed to it and, as a result of such re-sale property in the Goods passes from AAF, AAF is entitled to the proceeds of such re-sale to the extent of any amount unpaid in relation to the Goods, including any right to or claim for such proceeds and the Customer shall keep full records of any such sales, hold such proceeds of sale on trust for AAF and keep them separate from its other moneys.
- If the Customer fails to pay for the Goods on the Due Date (as defined in clause 13), even though AAF reserves title to the Goods supplied to the Customer and without prejudice to any other rights and remedies AAF may have, AAF may sue the Customer for the Purchase Price of the Goods as a liquidated sum. If AAF has purchased the Goods from a supplier and has agreed with the supplier that title to the Goods will not pass to AAF until the supplier has been paid, then clause 9(a) will not apply until the supplier has been paid.
- Until the Customer pays the full Purchase Price for the Goods:
- it must at its own expense, take all necessary precautions to keep the Goods safe and free from damage by fire, water, accident, vermin or reckless or malicious damage or any cause whatsoever; and
- it must insure the Goods for their full insurable value against loss or damage by fire, theft, accident and other such risks.
11. Personal Property Securities Act 2009 (Cth)
- Terms in this clause have the same meaning as given to them in the PPSA.
- AAF and the Customer acknowledge that these Terms constitute a Security Agreement and entitle the AAF to claim a Purchase Money Security Interest (“PMSI”) in favour of AAF over the Collateral supplied or to be supplied to the Customer as Grantor pursuant to these Terms.
- The goods supplied or to be supplied under these Terms fall within the PPSA classification of ”Other Goods” acquired by the Customer pursuant to these Terms.
- AAF and the Customer acknowledge that AAF, as Secured Party, is entitled to register its Security Interest in the Collateral supplied or to be supplied to Customer pursuant to these Terms on the PPS Register.
- To the extent permissible at law, the Customer:
- waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer to AAF.
- agrees to indemnify AAF on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;
- registration or amendment or discharge of any Financing Statement registered by or on behalf of AAF; and
- enforcement or attempted enforcement of any Security Interest granted to AAF by the Customer;
- agrees that nothing in sections 130 and 143 of the PPSA will apply to these Terms or the Security under these Terms;.
- agrees to waive its right to do any of the following under the PPSA:
- receive notice of removal of an Accession under section 95;
- receive notice of an intention to seize Collateral under section 123;
- object to the purchase of the Collateral by the Secured Party under section 129;
- receive notice of disposal of Collateral under section 130;
- receive a Statement of Account if there is no disposal under section 132(4);
- receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
- receive notice of retention of Collateral under section 135;
- redeem the Collateral under section 142; and
- reinstate the Security Agreement under section 143.
- All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA.
12. RECOVERY OF GOODS
If any payment by the Customer to AAF is overdue, in whole or in part, or the Customer is otherwise in default under these Terms or any contract with AAF, or the Customer becomes bankrupt or commits any act of bankruptcy or compounds with its creditors or has judgment entered against it in any court or, being a company, has a provisional liquidator, receiver or manager appointed or otherwise suffers some form of insolvency administration, all sums then owing by the Customer to AAF in relation to Goods/Services provided by AAF will become immediately due and payable and AAF may (without prejudice to any of its other rights) recover and resell any Goods and may, for that purpose, enter upon the Customer’s premises by its servants or agents, and AAF is irrevocably authorised to effect such entry, including the use of reasonable force if necessary, to recover possession of the Goods and to detach the Goods from any other object to which they have been attached or of which they form a constituent part. Any such recovery of Goods is at the discretion of AAF and the Customer may not return Goods (or any part of them) of its own accord.
Where items are supplied to AAF for the application of treatment and AAF does not own those items AAF shall, subject to any written agreement to provide the Good/Services on credit to the Customer, have a lien over those items until the Goods/Services have been paid for in full.
- The Customer shall pay to AAF the Purchase Price on the payment terms stated on the invoice (“Due Date”), time being of the essence.
- If any payment is not received by the Due Date, the Customer will pay AAF on demand interest at 2% above the Reserve Bank of Australia 10 year Government Treasury Rate prevailing at the Due Date, or other such rate as may be notified in writing from time to time (upon 28 days notice) from the Due Date until payment has been made.
- The Customer shall indemnify AAF on demand for any costs incurred in collecting any moneys payable in relation to the supply of the Goods/Services to the Customer (including without limitation any fees of any mercantile agent or solicitor on a full indemnity basis).
- Without prejudice to any other rights AAF may have, if any payment including interest is not made on the date it is due, AAF may, without further notice, suspend further provision of Goods/Services and its remaining obligations to the Customer under these Terms and any other agreement until the payment due is received by AAF in full.
- The Customer must pay the Purchase Price by providing AAF (or, If the right to receive the Purchase Price has been assigned, the assignee of AAF) with cleared funds without any set-off, abatement, counter-claim, deduction or withholding whatsoever, The Customer must not claim against any such assignee any right of set-off, abatement, counter-claim or other right which the Customer has against AAF. At the request of AAF or the assignee the Customer must sign and deliver to the assignee any document AAF or the assignee reasonably requires for this purpose. The Customer agrees that these obligations will prevail over any other term in any present or future agreement between AAF and the Customer.
15. PRICE OR PRODUCT VARIATION
- AAF reserves the right to vary or modify the Purchase Price of Goods/Services at any time prior to acceptance of an order by AAF.
- Where the Customer orders Goods/Services to be delivered in instalments, AAF reserves the right to vary or modify the Purchase Price of Goods/Services in relation to any uncalled instalments at any time prior to the Customer notifying AAF that it requires the next instalment.
- AAF reserves the right to alter the specifications and performance data of the Goods/Services in any way prior to acceptance of an order by AAF.
- In the event that there is a change in the Purchase Price of the Goods/Services in accordance with sub-clauses (a) or (b), or a change in the specifications or performance data of the Goods/Services in accordance with sub-clause (c) which substantially alters the nature of the Goods/Services provided, the Customer may cancel the order or, in the case of sub-clause (b), the remaining instalments, but only if the Customer notifies AAF that it wishes to cancel the order within 2 business days of receiving notice of the change in Purchase Price or specification/performance data of the Goods/Services.
16. NOTIFICATION OF CHANGE IN CONTROL
The Customer shall at least 14 days prior to the change notify AAF in writing of any change in the ownership of the business of the Customer or (if the Customer is a company) any change in shareholding or in the composition of the board of directors of the company which has the consequence that the persons in control of the business of the Customer change.
- AAF reserves the right to assign or novate its rights or obligations pursuant to any agreement formed on these terms by giving written notice to the Customer to that effect.
- The Customer must not assign its obligations under these Terms without AAF’s prior written consent.
18. RETURNING OF GOODS
- The Customer can only return Goods to AAF upon written authorisation by AAF. AAF is not obliged to authorise the return of any Goods in any circumstances. The Customer must quote the number of the invoice under which the Goods/Services were purchased.
- Transportation costs, both in delivery to AAF and return of any Goods to the Customer, are the responsibility of the Customer.
Subject to Clause 20, the Customer may not cancel any order or any undelivered part thereof except with the prior written approval of AAF. For each cancellation, AAF may, whilst reserving all its rights including any claim for loss, charge an administration fee of the greater of $150 or 50% of the value of all finishing plus 100% of the metal portion of the order or part thereof cancelled.
20. CUSTOM ORDER GOODS
- Where Custom Order Goods are supplied under these Terms by AAF, if the Customer wishes to terminate the supply agreement or cease trading with AAF, the Customer agrees to purchase all Goods purchased, stored or on future order by AAF for the Customer as agreed as part of the requirement in supplying the Goods to the Customer, provided that the Goods are in good order and condition and title in the Goods passes to the Customer upon payment.
- Cost of Custom Order Goods is dependent on international aluminium markets (LME) and Australian currency changes. AAF reserves the right to adjust pricing from time to time taking into account significant fluctuations in these cost elements.
- For the purpose of this Clause ‘Custom Order Goods’ means those bespoke goods made to the Customer’s specifications which AAF is unable to readily supply to other customers in the normal course of its business.
AAF shall not be under any liability to the Customer in respect of any loss or damage (including consequential loss or damage however caused) which may be suffered or incurred or which may arise directly or indirectly in respect of the Goods/Services or the failure or omission on the part of AAF to comply with its obligations under these conditions.
AAF is entitled to charge Goods and Services Tax (“GST”) at the prevailing rate of GST on any Goods/Services subject to GST on the Purchase Price payable by the Customer for such Goods/Services and for any Additional Charges.
A notice, demand, certification, process or other communication Including an invoice or statement will be deemed to be properly communicated as required by these Terms if it is left at or sent by prepaid ordinary mail to the party’s address, or transmitted to the party’s facsimile number or e-mail address or via any other form of written electronic communication, as stated most recently in documentation, correspondence or other written communication.
These terms and conditions shall be governed by the laws of New South Wales and the Customer agrees to submit to the jurisdiction of the courts of that state.
If any of these Terms is held by a competent authority to be unlawful, invalid or unenforceable in whole or in part then the validity of the other provisions of these Terms and the remainder of the provision in question will not be affected and will continue to be valid and enforceable to the fullest extent permitted by law.
Failure by AAF to enforce at any time any of these Terms will not be a waiver of AAF’s rights and will not prejudice AAF’s right to take subsequent action.