STANDARD TERMS AND CONDITIONS (Effective from 1 June 2021)

STANDARD TERMS AND CONDITIONS

(Effective from 1 June 2021)

BETWEEN

Asset Mechanical Engineering Pty Ltd of 61 – 67 Ashwin Parade Torrensville SA 5031 (ABN 24 250 583 833) (AME)

-and-  You the customer (Customer) <<Insert Customer: NAME, ADDRESS and ABN>>

NOW IT IS AGREED

 

  1. Dictionary

In this agreement the following terms have the following meanings

AME means the party or parties so described on page 1 of this Agreement and their heirs, executors, administrators, successors and assigns of such party or parties.

Business Day means a day on which all banks (as defined in the Banking Act 1959) with offices in the City of Adelaide are open for business in the City of Adelaide.

Business Hours means between the hours of 9.00am and 5.00pm (South Australia time).

Confidential information means and includes any information that by its nature is confidential, is designated by a party as confidential, or the recipient knows or ought to know is confidential but does not include information which:

  • is or becomes public knowledge other than by breach of this Agreement;
  • was known by the recipient as at the date of this Agreement; or
  • has been independently developed or acquired by the recipient without reference to the disclosing party’s Confidential Information.

where the burden of establishing any of the exceptions referred to in (a), (b) and (c) shall be upon the recipient.

Customer means the person, partnership, corporation or other entity (including trust) purchasing the Product as identified on page 1 of this Agreement, the Credit Application or Contract for Sale and their heirs, executors, administrators, successors and assigns of such party or parties.

Credit Application means an application for AME’s to supply credit to the Customer for the purchase of Products from AME

GST Law means A New Tax System (Goods and Services Tax) Act 1999 as amended or replaced from time to time and also includes any associated legislation and delegated legislation.

Force Majeure means an act or omission or circumstance over which the party could not have reasonably exercised control or taken steps to anticipate or avoid.

Intellectual Property means all statutory and other proprietary rights in respect of copyright and neighbouring rights, all rights in relation to inventions (including registered and unregistered patent rights), registered and unregistered trademarks, designs, the right to have Confidential Information (including trade secrets and know-how) kept confidential, and all other rights resulting from intellectual activity in industrial scientific, literary or artistic (including musical) fields;

Product means the product(s) AME agrees to supply to the Customer.

Price means the amount the Customer will pay AME for the Product as stipulated in the Sale Contract, or in the absence of a stipulated price then the listed price on AME’s current price list.

Sale Contract means the agreement, in whatever form, whereby the Customer agrees to purchase and AME agrees to sell Product.

  1. These Terms
    • The Customer acknowledges having had fair opportunity to read, understand and negotiate with AME regarding these terms.
    • Subject to any special written offer by AME or as AME’s general manager may agree in writing, these terms form part of each Sale Contract for AME to sell Product to the Customer and these terms negate any terms the Customer may issue.
    • The Customer’s failure to acknowledge these terms is not evidence these terms do not apply.
    • The Customer accepts these terms if after receipt of a copy of these terms or being able to access these terms on a website referred to the Customer by AME, the Customer places an order for Product (whether or not the Customer was issued or uses an account number allocated by AME).
    • At any time AME may change or replace these terms by so notifying the Customer. Any such change or replacement applies to any Sale Contract that forms after the change was so notified.
  2. Product availability
    • At any time AME may change its range of Products on offer without notice.
    • Products AME offers from its inventory are subject to prior sale to other buyers.
  3. Quotations
    • Unless otherwise stated, an AME quotation to sell Product expires after 10 workings days after sent.
    • A quotation for a stated date for delivery, kind or quantity of Product is not valid for a different date, kind or quantity of Product.
    • AME may vary / withdraw its quotation before AME in fact receives the Customer’s acceptance of the quotation.
  4. Demonstration & “On approval” Products
    • If AME supplies Product to the Customer expressly for demonstration purposes or on approval, the Customer must return that Product at its cost no later than the date agreed, or on demand.
    • If the Customer fails to return that above Product when required, or returns them in damaged or incomplete condition, AME may require the Customer buy them at list prices current at that time.
  5. Sale Contract formation
    • A Sale Contract forms only if and when either:
      • the Customer places a firm order for a particular kind and quantity of Product with AME, and AME accepts that order; or
      • AME issues a quotation for a particular kind and quantity of Product and the Customer accepts that quotation by so advising AME before the quotation expires or is withdrawn.
  1. Orders
    • The Customer may place an order orally or in writing – if AME so requires an oral order is not effective until confirmed in writing by the Customer.
    • The Customer may place a “standing order” for repeat quantities of Product, which order remains valid until its revocation is notified to AME.
    • AME may have a minimum order requirement stated in a current price list, and / or require an order be placed a minimum period before the expected date of delivery.
    • An order, if accepted by AME, is effective even if the Customer has not specified a delivery date or method.
    • Any order is subject to AME’s acceptance, and AME may decline an order in full or in part.
    • AME accepts an order (in full or in part) either by so notifying the Customer or by executing the order.
    • After AME accepts an order, the Customer may not modify, delay or cancel the order unless AME agrees in writing.
  2. Prices
    • Unless otherwise stated, prices stated in AME’s then current price list:
      • include any manufacturer’s or importer’s instructions;
      • include usual packaging;
      • are for delivery to occur at AME’s premises, and do not include transport of Product to or at the direction of the Customer;
      • do not include assembly or installation of Product;
      • are exclusive of GST.
    • Unless AME quoted a fixed price AME would invoice an order at list prices current on the day of delivery, which list prices may change without notice.
    • Unless AME quotes otherwise, AME may vary a price after the Sale Contract forms if the Customer varies the quantity of Product contracted for and AME has accepted that change.
    • A price is fully earned when the Product is loaded for dispatch from AME’s premises, subject to clause 10.3.
  3. GST

AME may recover from the Customer an amount equal to any GST for which AME becomes liable by its sale of Product to the Customer. Such amount is payable by the Customer to AME at the same time the price of that Product is payable.

  1. Tax invoice
    • On or as soon as practicable after each sale of Product, AME must issue a tax invoice for that sale.
    • The Customer waives right to dispute anything on an invoice not notified in writing (giving reasonable details) to AME within 10 working days after the Customer receives that invoice.
    • If after delivery of a Product AME is to assemble or install the Product for the Customer, AME may issue separate invoices for such services as work is done. In all events AME may invoice such services on practical completion.
  2. Payment for Product
    • If AME need order in or manufacture Product as to fill the Customer’s order, AME may require the Customer pay a 10% deposit or as specified within a quotation (plus GST thereon) in advance.
    • The Customer must pay for Product on the date of delivery unless AME is then extending credit to the Customer the limit of which is not exceeded by that or any other outstanding price of Product from the Customer, in which latter case the Customer must pay AME’s invoice by the due date shown on the invoice.
    • Unless AME’s general manager agrees in writing, the Customer may not deduct from any price any set off, counterclaim or rebates asserted by the Customer or other sum (such as taxes, charges).
    • AME may require payment of its invoices by electronic transfer in clear funds to a bank account last nominated by AME in writing.
    • Payment by cheque is not made until the cheque clears.
    • If the Customer does not pay for any Product within time, AME may:
      • recover from the Customer daily interest at 10% per annum on the unpaid amount of the price that Product calculated on and from the due date until the date payment in full (plus accrued late payment interest) is made to AME;
      • without liability, cancel or suspend delivery of any Product not fully paid for and yet to be delivered under any Sale Contract;
      • resume possession of the Product not fully paid for and then credit the Customer with AME’s estimated re-sale value of that Product less costs; and / or
      • exercise any other rights or remedies AME has in relation to the default.
    • Interest accrued under term 6.1 and not paid for 30 days adds to the debt (is capitalised), and thereafter attracts interest.
  3. Set off

In addition to rights of set off under the general law, AME may set off any debt or liability the Customer (alone or with others) owes to AME on any account against any debt or liability AME owes to the Customer on any account. If a liability is unliquidated or otherwise unascertained, AME may set off an amount estimated by AME in good faith on account of such liability, without prejudice to the obligation of the parties to account for any shortfall or excess.

  1. Credit account
    • If AME extends credit to the Customer, AME does so based on written information provided in the Credit Application or last provided to AME by or for the Customer.
    • If at any time that information changes materially and adversely, within 2 working days the Customer must advise the change in writing (giving reasonable details) to AME’s general manager.
    • A credit account is personal to the Customer and not transferable to a third party.
    • If AME is extending credit to the Customer, at any time and without giving reason, AME may reduce, suspend or terminate the credit account by so advising the Customer. Such advice may be oral or written.
    • A credit account terminates automatically if the Customer does not trade with AME for 12 months or becomes insolvent.
    • Within 5 working days after being advised of a reduction / suspension / termination of the credit account, the Customer must pay to AME any amount the Customer owes to AME in excess of the current credit limit.
  2. Security to AME
    • If at any time AME is to extend or is extending credit to the Customer it may be a condition of that credit that the Customer execute and deliver to AME a deed (in form AME requires) that grants to AME either:
      • a general lien of all or some only of the Customer’s personal property at any time in AME’s possession or control;
      • a pledge of all or some only of the Customer’s personal property at any time in AME’s possession or control;
      • a charge of all or some only present and after acquired real property and / or personal property of the Customer,
    • as security for money due or to become due to AME under any Sale Contract.
    • Any above security interest would add to and not derogate from any other rights or remedies AME might at any time have over any property or against any third party.
    • Note: Those other rights might include: (a) a purchase money security interest under the Personal Property Securities Act 2009 for Product supplied on credit; (b) a common law particular possessory lien for improving personal property; (c) a statutory lien under the Warehouse Liens and Storage Act 1990.
  3. Purchase Money Security Interest
    • A purchase money security interest (PMSI) is defined under section 14(1)(a) of the Personal Properties Securities Act 2009 (PPSA) as varied.
    • In accordance with clause 14.3 and 14.4 AME may register in relation to a PMSI one or more financing statements/ financing charge statements on the register maintained under the PPSA.
    • To any extent AME at any time requests within 2 working days the Customer must do all things necessary to assist such registration/s and/or ensure the PMSI priority over any other security interest (present or future) over the same Product or its proceeds granted by the Customer to a third party.
    • The parties agree to contract out of the following provisions of the PPSA 118, 121(4), 123, 125, 128, 129, 130, 132, 135, 142 and 143, at the time of this contract and their equivalent in as amended and as permitted by law.
    • if at any time a third party secured party should give AME a notice under section 64(2) of the PPSA in relation to proceeds of any Product as original collateral, AME may decline to supply further Product on credit to the Customer.
  4. Promotional material

Any promotional materials (other than official manufacturer’s technical specifications) AME publishes only give a general idea of Products on offer and cannot be relied on for any purpose.

  1. Warranties
    • AME warrants that Product when loaded for dispatch from AME’s premises:
      • conforms to the order as to the kind and quantity / volume of Product;
      • conforms to any samples AME previously gave for the order;
      • conforms to the description for that kind of Product under Australian trade usage;
      • is in packaging to usual Australian trade standards;
      • is of merchantable quality;
      • is free of third party security interests.
    • A description of weight / volume means weight / volume when loaded for dispatch from AME’s premises.
    • Subject to law and these terms, AME does not give any other warranty, condition or guarantee in connection with its supply of Product.
    • If AME specially manufactures Product to the Customer’s own specifications without express reliance upon AME’s expertise, the use of those specifications is at the Customer’s risk.
  2. Supply
    • AME may deliver less than a quantity ordered if unable to deliver the full quantity. In that case the unit sale price of the Product remains the same, but if applicable any transport costs included in the price relative to quantity would be adjusted in a fair proportion.
    • AME may deliver an order by instalment, but if AME fails to deliver a particular instalment by a date specified the Customer may not rescind the Sale Contract.
  3. Delivery
    • If AME need order in or manufacture Product as to fill the Customer’s order, any delivery date or time AME quotes or proposes is an estimate only.
    • Unless otherwise agreed, the Customer must take delivery of Product at AME’s premises.
    • If at the Customer’s request AME agrees to procure transport of Product to or at the direction of the Customer, then:
      • if the Customer does not specify a method of transport or particular carrier, AME may decide the method or carrier, but all carriers will be the Customer’s agents only;
      • the Customer bears the risk of loss / damage / deterioration in Product in transit;
      • AME does not guarantee a particular arrival date or time;
      • a receipt signed by an apparently responsible person at the nominated destination is sufficient evidence of arrival of the Product unless proved to the contrary;
      • AME need not provide proof of arrival unless the Customer made written request of proof of arrival;
      • AME may recover the agreed cost of transport from the Customer or, if that cost was not agreed in advance, a reasonable cost;
      • If AME provides pallets for that purpose, then:
        • If AME knows the Customer a/c number with Loscam or CHEP, AME may debit that a/c with those pallets, and the Customer must confirm that transaction within 30 days; or
        • Within 90 days of their arrival at the nominated destination the Customer must either return them in the same condition (fair wear and tear excepted) or bring to AME identical pallets sourced by the Customer, and in default AME may recover from the Customer the replacement cost of any pallets AME provided that are damaged or not returned / swapped;
      • If AME provides reusable bulk containers (such as bulk bags, ISO tanks, bulk bins and tanktainers for that purpose, then:
        • Such remain AME’s property;
        • While in the Customer’s custody such must not be used for any commodity other than that contained in the containers at the time of delivery to the Customer;
        • Such must be returned to AME in the same condition (fair wear and tear excepted) within 30 days – in default AME may recover from the Customer a reasonable hire charge, or the cost of repairing/replacing the container.
      • the Customer fails to take delivery of Product for at least 14 days after the agreed date for delivery (or if there was no such agreed date for at least 14 days after AME advises the Customer the Product is in store), thereafter in addition to its other rights and remedies AME may store the Product at the Customer’s cost and risk pending actual delivery or termination of the Sale Contract.
  1. Risk of loss
    • Risk of loss / damage / deterioration in Product passes from AME to the Customer when the Product is loaded for dispatch from AME’s premises even if AME is required to transport, install or commission the Product or provide other service in connection with them.
    • After risk passes, the Customer must insure the Product for full insurable value and have that insurance extend to AME’s ownership of the Product until ownership passes. At any time AME may require evidence of that insurance. The Customer holds on trust for AME any proceeds of any insurance claim in respect of AME’s property.
  2. Ownership
    • Ownership of Product sold passes from AME to the Customer only when that Product is fully paid for. Until that time the Customer holds the Product for AME as owner and, if AME so requires, the Customer must store that Product in a way it can be identified as AME’s property.
    • If the Customer’s payment for any Product is voided or conceded to be voidable or void, AME resumes ownership of that Product
  3. Returns
    • Subject to any special offer by AME, the Customer may not return any Product (not defective for reasons that are AME’s responsibility) except:
      • with AME’s general manager’s prior written consent and at the Customer’s cost, including any incoming freight and re-stocking fee;
      • where Product is received back in the same condition and packaging as when delivered to the Customer;
      • less a handling fee of 15% of their price (before GST) and in some instances when relevant, the returns re-stocking fee may be dictated from original point of purchase supplier and subsequently be greater than 15%.;
  1. On-sales and other use of Product
    • The Product is not provided to the Customer for resale.
    • The Customer must not use, on-sell or otherwise supply any Product not fit for purpose at that time.
    • Subject to term 26, as a continuing obligation the Customer indemnifies and holds harmless AME against any claim for any loss, damage, personal injury or death to the extent caused by the Customer’s improper storage, handling, distribution or use of Product or any other reasons that are not AME’s responsibility.
  2. Product recall
    • A recall of Product might be initiated by government, AME or the Customer for perceived health, hygiene or safety reasons.
    • A party who becomes aware of a recall must immediately notify the other party (with reasonable details).
    • If a recall occurs for reasons that are AME’s responsibility, AME bears the reasonable costs of transport, repair (if feasible) or replacement of the Products recalled.
  3. Short delivery

A claim that a delivery of Product was not of the kind or quantity of Product contracted for is not valid unless advised in writing (with reasonable details) to AME’s general manager within 2 working days after the delivery was first available for inspection by the Customer or their agent.

  1. Defective Product
    • Subject to applicable laws (if any):
      • a claim that Product is defective for reasons that are AME’s responsibility is not valid unless advised in writing (with reasonable details) to AME within 2 working days after the defect was first known to the Customer or their agent; and
      • no later than 14 days after making a claim the Customer must advise AME what action (if any) the Customer requires to resolve the claim;
      • AME may decline a claim for defective Product if the Customer does not take reasonable steps to preserve the Product (or the balance of the delivery) pending an inspection by AME’s agent, if AME requires inspection.
    • If a claim for defective Product is found or admitted to be without merit, AME may recover from the Customer as a debt all reasonable costs AME incurs investigating the claim.
    • To avoid doubt, this term 26 applies to alleged cork taint, leakage, oxidation, adhesive deterioration, microbiological instability, default in packaging appearance, glass breakage.
    • If the Customer is a consumer (as defined in the Australian Consumer Law) in relation to the Sale Contract, the following provisions of this term 4 apply in relation to that Sale Contract as to comply with section 102 of the Australian Consumer Law and regulation 90 of the Competition and Consumer Regulations 2010:
      • AME is the person giving the warranty.
      • A defect in the Product must appear within 12 months or within the period of warranty as specified by the original equipment manufacturer for the Customer to be entitled to claim the warranty against defects.
      • To claim the warranty the Customer must notify AME as stated in term 26.1 and make the Product available to AME – if AME so requires, bring the Product to AME’s business address.
      • The Customer bears the expense of claiming the warranty against defects.
      • If the Product is defective AME honours its warranty against defects by taking one or more of the actions stated in term 28.2.
      • The benefits to the Customer given by the warranty are in addition to other rights and remedies of the Customer under a law in relation to the goods or services to which the warranty relates
  1. Time bar

Subject to applicable laws, any claim for any short delivery / defective Product not made within time is barred for all purposes.

  1. Vendor liability
    • If Product AME delivers was not of the kind or quantity contracted for then AME’s total liability is limited to prompt delivery of the kind of Product contracted for or prompt delivery of the shortfall quantity, as applicable, and at AME’s cost.
    • If Product AME delivers otherwise does not conform to the Sale Contract or (for reasons that are AME’s responsibility) is defective, then AME’s total liability is limited to (at AME’s choice and at AME’s cost):
      • prompt delivery of replacement Product or equivalent goods; or
      • prompt repair of the Product; or
      • payment of the cost of the Customer acquiring equivalent goods or having the Product repaired;

provided that if both:

  • the Customer is a consumer (as defined in the Australian Consumer Law) in relation to the Sale Contract; and
  • that Product is of a kind ordinarily acquired for personal, domestic or household use or consumption
  • then these terms do not exclude, restrict or modify the statutory guarantees the Australian Consumer Law implies in the Sale Contract and this term 2 does not limit AME’s liability under those statutory guarantees as regards that particular Product.
    • If AME is to replace Product that is or likely to be defective for reasons that are AME’s responsibility:
    • AME retains or resumes ownership of the original Product;
    • AME may collect the original Product from the Customer or require that original Product be transported, dumped or otherwise dealt with at AME’s reasonable cost.
  • Subject to the Australian Consumer Law if it applies, in no case is AME liable for any loss of revenue / profits / goodwill or any incidental, consequential or punitive damages as a result of any claim in connection with its supply of Product.
  1. Vendor rights

In addition to AME’s other rights and remedies, AME may suspend or cancel a Sale Contract and retake possession of Product not fully paid for if either:

  • AME reasonably believes the Customer to be insolvent or to have ceased permanently to trade; or
  • the Customer is in default under any Sale Contract with AME.

AME may resell Product it repossesses as it sees fit and then apply the net proceeds of resale in reduction of any debt the Customer owes to AME

  1. Customer-supplied specifications / materials

If AME is to manufacture or package any Product using specifications / materials sourced from the Customer, then:

  • the Customer warrants that such specifications do not infringe third party rights or applicable law, and that such materials are fit for purpose and will be delivered to AME in the form and within the time AME requires:
  • AME is not obliged to check those specifications or test those materials before use; and
  • the use of those specifications / materials is wholly at the Customer’s risk
  1. Enforcement Costs
    • A party (Party 1) may recover from the other party (Party 2) all reasonable costs or expenses Party 1 incurs in recovering or attempting recovery of moneys owing by Party 2 under a Sale Contact or in otherwise enforcing Party 1’s rights under a Sale Contract. Such costs may include legal costs on a solicitor / client basis.
  2. Brands

AME retains all ownership in its brands and the goodwill of the Products, and may restrict the Customer’s use of AME’s brands.

  1. Confidentiality

If AME contracts on the basis of a discount or rebate to its current list prices, during and for 12 months after the Sale Contract the Customer must not disclose that pricing to a third party except as necessary to perform or enforce the Sale Contract or as required by law.

  1. Force majeure

A party is not liable for a failure to perform a Sale Contract to the extent its performance is prevented by a circumstance not within that party’s reasonable control and without its negligence.

  1. Dispute resolution
    • Except as this term allows, any dispute in connection with a supply of Product must not be the subject of litigation or arbitration pending the party raising the dispute notifying the other party as to the nature of the dispute (with reasonable details), what action the party giving notice thinks will resolve the dispute, and inviting the other party to a meeting of the parties’ respective agents at some mutually convenient location with a view to resolving the dispute.
    • At such meeting each party must send to the meeting an agent with authority to resolve the dispute, and at the meeting make a good faith attempt to resolve the dispute.
    • This term does not prejudice the right of a party to seek a Court order to prevent immediate and irreparable harm, nor to suspend or terminate a Sale Contract where the basis for doing so is not in dispute.
  2. About the Customer
    • If in a Sale Contract the Customer is more than 1 person, that Sale Contract binds each such person jointly and severally, and each of them is taken to have authority to bind the other/s in connection with the Sale Contract, including that a notice to / from any such person is notice to / from all of them.
    • The Customer must notify AME within 14 days if:
      • The Customer is a partnership and any of the partners change; or
      • The Customer is a company or contracts as trustee and there is a change of control as applied to that company or trust (where control has its meaning in the Corporations Act 2001).
  1. About a Sale Contract
    • These terms and the relevant order (as accepted by AME) together are the whole contract (Sale Contract) between the parties about AME’s sale and supply of Product to the Customer.
    • Any provision of a Sale contract found to be unenforceable must be read down to the extent necessary to avoid that result or if it cannot be read down it must be severed without affecting the validity and enforceability of the remainder of the Sale Contract.
    • Any Sale Contract may only be modified (includes delayed) or cancelled as the parties agree in writing.
    • To be valid, a waiver under any Sale Contract must be in writing signed by the party granting the waiver.
    • The Customer may not assign any Sale Contract except with AME’s prior written consent.
    • Upon notice to but with need for consent of the Customer, AME may assign any Sale Contract to a person who acquires AME’s business in succession to AME.
    • The laws in South Australia govern a Sale Contract, and AME has exclusive right to nominate the court in which any legal action is to be commenced and conducted. The parties irrevocably submit to the jurisdiction of those courts, and any courts that have jurisdiction to hear appeals from those courts.
    • A notice required or authorised to be given or served on a party under this Agreement must be in writing and may be given or served by facsimile, express or registered post, electronic mail (email) or hand to that party at its facsimile number, email address or address as the party may have last notified the other party or parties in writing. Notices sent via post are deemed to arrive in two business days. Notices via email or Facsimile are deemed to arrive the next business day.
  2. Intellectual property
    • Subject to the terms of this Agreement, the AME grants the Customer an non-exclusive licence to use Intellectual Property embodied in the Products for the purpose of using the Products, provided that the Customer complies with clause 2 and 38.3.
    • For the avoidance of doubt, nothing in this Agreement will give the Customer the right to use any of the AME’s trade marks (whether registered or unregistered) without express prior consent.
      • Use of AME Intellectual Property
    • The Customer shall:
      • use AME’s Intellectual Property only for the purpose of using the Products during the Term;
      • have no other rights in or to AME’s Intellectual Property;
      • notify the AME promptly of any possible infringement of AME’s Intellectual Property, which comes to its notice; and
      • not purport to assign its right under clause 38.1, which is personal to

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