The following terms and conditions of sale shall apply to, and govern the agreement between, the sale of goods or services ("goods") by EJ Australia Pty Ltd ("the Supplier") ABN: 48 010 591 956 to the Customer. These terms and conditions of sale replace any previous terms and conditions of sale.
1. DEFINITIONS AND INTERPRETATION
(a) “Australian Consumer Law” refers to the consumer law contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(b) "Customer" means a person whose order for the purchase of goods is accepted by the Supplier.
(c) "GST" means goods and services tax levied pursuant to the A New Tax System, (Goods and Services Tax) Act 1999.
(d) “Implied Terms” means any term, condition, warranty, right or remedy applicable to these terms that is implied or imposed by any statute or regulation which cannot lawfully be excluded, restricted or modified, which may include the Australian Consumer Law and Australian state or territory legislation.
(e) “Other Property” means all the Customer’s present and after-acquired rights and interests in land and any other property, rights and interests that is not Personal Property
(f) “Personal Property” means all of the Customer’s present and after-acquired personal property (as defined in the PPSA and to which the PPSA applies) and all present and after-acquired personal property (as defined in the PPSA and to which the PPSA applies) in which the Customer has rights.
(g) “PPSA” means the Personal Property Securities Act 2009 (Cth).
(h) “Price” means the amount payable for the goods by the Customer
(i) The headings used do not form part of these terms and conditions and are for convenience only.
(j) Where the content admits or requires words importing the singular number shall include the plural number, those denoting a given gender shall include all other genders and those denoting natural persons shall include corporations.
(a) Unless otherwise agreed in writing by the Supplier, these terms and conditions apply to the supply of goods to the exclusion of all other terms proposed by the Customer. If the Supplier agrees (at its sole discretion) to incorporate any terms and conditions proposed by the Customer to the supply of goods (“Customer Terms”), these terms and conditions shall apply to the extent of any inconsistency with the Customer Terms. The Supplier will only be deemed to have accepted the Customer Terms where the Supplier has confirmed the acceptance in writing, signed by a director of the Supplier.
(b) No contract for the supply of goods shall exist between the Supplier and the Customer until a Customer's order for goods has been accepted by the Supplier (such acceptance of Customer's orders may be made and communicated by the Supplier in writing or by overt act of acceptance on the part of the Supplier). The Supplier may accept or refuse any order for goods in its absolute discretion and may make its acceptance of an order conditional upon it receiving a satisfactory credit assessment of the Customer.
(c) The Supplier may change these terms and conditions by notice in writing to the Customer. The Customer agrees that the purchase of any goods after the date of a notice of a change will be deemed to be an acceptance of such changed terms and conditions.
(d) Should there be any change to any of the information supplied by the Customer to the Supplier or in the structure or nature of the Customer's business (such as a change in control or change to the entity operating the business) the Customer shall immediately notify the Supplier in writing. If the Customer intends to restructure its business, such as by changing control or changing the entity operating the business, the Customer must notify the Supplier at least 30 days before the change to the Customer’s business occurs.
(e) These terms and conditions shall be binding on the Customer's personal representatives, successors and permitted assigns and shall be for the benefit of the Supplier’s successors and assigns.
(a) Unless otherwise expressly stated, the Price payable by the Customer under these terms and conditions is exclusive of GST.
(b) Any variations in the invoice or contract price as a consequence of currency fluctuations, taxes, customs duty or other imports shall be to the Customer's account.
(c) The Supplier will be entitled to set off against any money owing to the Customer amounts owed to the Supplier by the Customer on any account whatsoever.
4. ACCOUNT TERMS
(a) The Customer shall pay for all goods within 30 days of the invoice date, unless agreed otherwise.
(b) If GST is imposed on any goods supplied by the Supplier, then the Customer must pay to the Supplier an additional amount equal to the GST payable on or for such taxable supply. Payment of the additional amount will be made at the same time as payment for the goods is required to be made in accordance with these terms and conditions, subject to the provision of a tax invoice.
(c) If the Customer does not pay the Supplier by the due date, the Customer shall pay interest on monies due, charged on a daily rate at 2% per month from the due date of payment until actual date of payment. If the Customer has an account with the Supplier, the Supplier may debit the Customer’s account monthly or at such times it chooses for such interest.
(d) The Customer further agrees to indemnify the Supplier for any legal costs incurred by the Supplier (including but not limited to charges & commission charged by mercantile agents) in respect of this application, agreements, personal guarantees, securities given or other documentation required whilst credit is being offered in consequence of this application, and the Customer further agrees to indemnify the Supplier for any dishonored fees incurred and in the event that the Customer’s account is in default of the agreed trading terms to indemnify the Supplier against its collection fees & legal costs. In the event the Supplier defaults in making payment and recovery action is undertaken, the Supplier will be responsible for all expenses in relation to the collection of the outstanding amount including, but not limited to, all charges and fees, legal costs on an indemnity basis, and disbursements.
(e) The Supplier may withdraw the Customer's credit facilities at any time or vary the Customer's credit limit by providing notice in writing to the Customer or any guarantor of the Customer.
(a) there is any default or failure by the Customer in making due and punctual payment to the Supplier of any moneys owing by the Customer;
(b) a liquidator or provisional liquidator is appointed in respect of the Customer;
(c) a receiver, receiver and manager or controller is appointed in respect of any assets or group of assets of the Customer;
(d) the Customer goes into bankruptcy or is wound up;
(e) the Customer becomes, admits in writing that it is, or is declared by a court to be unable to pay its debts as and when they fall due, or
(f) there is a breach by the Customer of any of these terms and conditions that has not been remedied within 7 days of the Supplier notifying the Customer of the breach, then all monies payable by the Customer to the Supplier shall at the Supplier’s election become immediately due and payable notwithstanding the due date for payment shall not have expired, and the Supplier may without prejudice to any other rights they may have do any or all of the following:
(a) Goods will be delivered or deemed to be delivered when they are delivered to the delivery place nominated by the Customer. If no such address is nominated then delivery will be deemed to occur at the time when the goods are ready for collection at the Supplier’s premises.
(b) The Customer shall pay to the Supplier packing (other than the standard packing of the Supplier), crating and delivery charges in accordance with the Supplier’s current rates, as at the date of dispatch. If there is no current rate then the Supplier may charge a reasonable amount to the Customer. The Supplier reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Customer within 14 days of a request by the Supplier for such information.
(c) The Customer authorises the Supplier to deliver products to the place nominated by the Customer and to leave the products at such place whether or not any person is present to accept delivery. The Supplier shall not be liable on any basis whatsoever for loss suffered by the Customer after delivery to the nominated delivery place.
(d) The Supplier shall not be obliged to obtain a signed receipt or other acknowledgment from any person at the nominated place for delivery but if a signed receipt or other acknowledgment is obtained from someone believed by the Supplier to be authorized by the Customer to sign or otherwise take delivery on behalf of the Customer, then such signed receipt or other acknowledgment shall be conclusive evidence of the Customer's acceptance of the goods delivered.
(e) Any times quoted for delivery are estimates only and the Supplier shall not be liable to the Customer for any failure to deliver or for delay in delivery of goods occasioned by strike, lockout or other industrial dispute, shortage of stock, shortage of labor, lack of skilled labor, delays in transit, fire, flood, hostility, civil commotion or any other cause whatsoever whether or not beyond the control of the Supplier.
(f) The Customer shall not be relieved of any obligation to accept or pay for goods by reason of any delay in delivery.
(g) The Supplier reserves the right to deliver goods by installments. Failure to deliver any installment or deliver any installment on time shall not entitle the Customer to repudiate the contract in whole or in part.
7. PROPERTY AND RISK
(a) The goods shall be at the sole risk of the Customer as soon as they are delivered or deemed to be delivered in accordance with clause 6.
(b) Property in and title to the goods will not pass to the Customer until:
(i) in respect of goods listed on an invoice given to the Customer, the invoice has been paid for in full; and
(ii) the goods and all other goods supplied by the Supplier to the Customer have been paid for in full; and
(iii) any moneys owing to the Supplier by the Customer have been paid by the Customer and received by the Supplier in full (“Debts”).
(c) Until the Debts have been paid in full:
(i) the Customer will hold the goods as fiduciary and bailee for the Supplier and the Customer must not charge or grant an encumbrance over the goods or sell the goods otherwise than in accordance with clause 7(c)(iii);
(ii) the goods must be stored separately and in a manner enabling them to be identified as goods of the Supplier and cross-referenced to particular invoices and the Customer acknowledges that if it should process or mix the goods with other products or items such that the goods are no longer separately identifiable then the Customer and the Supplier will be owners in common of the new product;
(iii) if the Customer sells the goods in the ordinary course of its business as bailee for the Supplier:
(iv) the Supplier may require the Customer to return the goods to it on demand; and
(v) the Customer grants the Supplier a licence to enter any premises of the Customer where the goods are stored to inspect or repossess any goods supplied to the Customer (whether paid for or not).
(d) The Customer shall insure the goods against theft or any damage until such goods have been paid for or until they are sold by the Customer whichever occurs first and the Supplier will be entitled to call for details of the insurance policy. If the Customer does not insure the goods or fails to supply details of its insurance policy, the Customer will reimburse the Supplier for the cost of any insurance which the Supplier may reasonably arrange in respect of the goods supplied to the Customer.
8. DRAWINGS AND SPECIFICATIONS
(a) The Customer warrants to the Supplier that all drawings and specifications and other design information provided to the Supplier for the manufacture of special orders or tooling are accurate and correct in all respects and do not infringe upon the intellectual property rights of any third party including any copyright, patents, designs or trademarks of a third party.
(b) If the Customer provides any drawings, designs or specifications in relation to the provision of the goods, the Customer:
(i) indemnifies the Supplier against all claims associated with any infringement of the intellectual property rights of third any person; and
(ii) grants the Supplier a non-exclusive, irrevocable, perpetual, royalty free and worldwide licence to any intellectual property rights associated with the provided drawings, designs or specifications for the purpose of the supply of the goods in connection with these terms and conditions.
9. RETURN OF GOODS
(a) Subject to clause 10 and to Implied Terms, unless agreed in writing by the Supplier, the Supplier will not accept the return of goods. If the Supplier agrees to accept goods (at its absolute discretion) the Customer may be charged to recover restocking and repackaging costs. The amount of this charge will be determined by the Supplier and shall be deducted from the amount of the credit allowed for the return.
(b) The original invoice number must accompany all goods returned to the Supplier.
(c) Subject to any Implied Terms, the Customer is not entitled to return any goods pursuant to this clause 9 which have been custom made, custom processed or custom acquired for the Customer.
(d) All claims for the Supplier’s failure to comply with the Customer's order (whether due to shortfall, defect, incorrect delivery or otherwise) must be made by giving written notice to the Supplier within fourteen (14) days from the date of delivery. If the Customer fails to provide such notice, then the Customer shall be deemed to have accepted the goods.
(e) Any goods returned to the Supplier must be in a good and saleable condition, and will attract a handling charge that will be payable by the Customer.
10. CLAIMS UPON SUPPLIER
(a) These conditions limit the application of any Implied Terms to the maximum extent permitted by law and all conditions, warranties and undertakings other than Implied Terms are expressly excluded;
(b) The Supplier’s liability for breach of an Implied Term is limited at the Supplier’s option in the event of a minor failure of the goods, or the Customer’s option in the event of a major failure of the goods, to any one of the following:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of the goods; or
(iii) the payment of the cost of providing replacement goods or of acquiring equivalent goods.
(iv) the payment of the cost of having the goods repaired.
(c) To the maximum extent permitted by law, the Supplier shall not be liable for any direct or indirect loss whatsoever, including consequential loss, loss of profits, loss of opportunity or loss of use.
11. FITNESS FOR PURPOSE
The Customer agrees that it does not rely on the skill or judgment of the Supplier in relation to the suitability of any goods for a particular purpose. Any advice, recommendation, information or assistance provided by the Supplier is provided without any liability by the Supplier whatsoever.
12. TRUST AND TRUSTEES
Where the Customer acquires the goods as a trustee:
(a) The Customer agrees to produce a copy of the trust deed (with all amendments) if and when requested by the Supplier; and
(b) The Customer warrants that it has the full power and authority to enter into these terms and conditions on behalf of the trust and that it shall be bound by these terms and conditions both personally and as trustee, irrespective of whether or not it discloses to the Supplier that it is a trustee at the time of entering into any credit agreement with the Supplier.
13. LAWS TO GOVERN PROVISIONS OF AGREEMENT
(a) Unless varied by notice in writing by the Supplier, these terms and conditions shall be governed by and construed in accordance with the laws of Queensland and the parties submit to the exclusive jurisdiction of the courts in the central district of that State.
(b) The parties agree that proceedings may be commenced in any Court in Queensland and consent to that Court having jurisdiction by virtue of clause 14(a) even though the Court would not otherwise have such jurisdiction without this consent.
(a) Notice to be given by the Customer to the Supplier may be delivered personally or sent to the credit manager of the Supplier at the Suppliers' address at 2/354 South Pine Road, Brendale 4500, QLD and unless the contrary is proved shall be taken as delivered when received by the Supplier. Notice to be given to the Customer by the Supplier may be delivered personally, or sent to the Customer's last known postal address, facsimile or electronic mail address and unless the contrary is proved shall be taken as delivered on the second business day following posting or on the date that such facsimile or electronic mail was sent.
(b) Invoices and statements are deemed received by the Customer on the second business day after posting by ordinary prepaid post but otherwise on the date of transmission by facsimile or electronic mail.
In the event that the whole or any part or parts of any provisions in this agreement should be held to be void or unenforceable in whole or in part such provision or part thereof shall to that extent be severed from these terms and conditions but the validity and enforceability of the remainder of these terms and conditions shall not be affected.
A statement in writing signed by the Supplier’s credit manager stating monies payable by the Customer to the Supplier shall be prima facie evidence of the amounts so payable.
17. INTELLECTUAL PROPERTY
The sale to and purchase by the Customer of any goods and services does not confer on the Customer any license to the intellectual property rights of the Supplier.
Any failure by the Supplier to insist upon strict performance of any conditions herein shall not be deemed a waiver thereof of any right that the Supplier may have and shall not be deemed to be a waiver of any subsequent breach of any condition.
Tooling manufactured for use by the Supplier (notwithstanding that the Customer may have contributed to the cost of development or manufacture of such tooling) will, unless otherwise agreed in writing, be and remain the property of the Supplier and the Supplier shall be entitled to deal with such tooling as it so determines.
(a) The Supplier at all times retains the right of possession of any of the Supplier’s owned boxes, pallets or skips used for delivery of the goods and the Customer agrees to indemnify the Supplier in respect of any boxes, pallets or skips not returned in good order and condition to the Supplier within 14 days of delivery of the goods.
(b) Unless otherwise indicated, the Price includes standard packing by the Supplier. If the Supplier charges for returnable packing, the Customer will only be entitled to a credit with respect to their account if the packing is returned in good and reusable condition.
21. MINIMUM ORDER PRICE
The Supplier may set a minimum Price for any one order at its absolute discretion.
(a) All terms defined in the PPSA have the same meaning where capitalized in these terms and conditions.
(b) For the purpose of securing payment of the Price and the performance of the Customer’s obligations under these terms and conditions, the Customer:
(i) grants a Security Interest in the Personal Property to the Supplier; and
(ii) charges the Other Property to the Supplier by way of fixed charge (Charge).
(c) The Customer does this as beneficial owner unless the Customer has informed the Supplier that the Customer enters into these terms and conditions as trustee of a trust. If the Customer enters into these terms and conditions as trustee of the trust, the Customer does this as sole trustee of the trust for all the Collateral comprising the trust fund of the trust and the Customer does this as beneficial owner for all the other Collateral.
(d) Where the Customer holds the Collateral jointly with one or more others, whether or not named in these terms and conditions and whether in partnership, joint venture or otherwise, and the Supplier holds a Security Interest from all such other persons, whether under these terms and conditions or under any other security instruments, the Customer acknowledges that such Security Interests constitute a Security Interest over all the assets of the firm, partnership or joint venture.
(e) The Customer agrees upon request by the Supplier, to deliver to the Supplier an executed mortgage over any property subject to the Charge (Mortgaged Property) or instrument of encumbrance in registrable form that incorporates the Supplier’s standard covenants as prepared by the Supplier’s solicitors, and as the Supplier may require to be executed by the Customer. In the event that the Customer should neglect or fail to deliver the requested instrument or security, the Customer hereby irrevocably appoints the Supplier and any solicitor nominated by the Supplier severally to be the Customer’s lawful attorney to execute, obtain and/or register a mortgage or caveat, withdrawal of caveat or other security to support the Charge in respect of the Mortgaged Property. If the Charge created by this clause is or becomes void or unenforceable, it may be severed from these terms and conditions without any effect on their validity and the Customer will not be exonerated from complying with these terms and conditions in whole or in part.
(f) For the avoidance of doubt, the Supplier’s interest in the unpaid for goods supplied constitutes a Purchase Money Security Interest (PMSI). The PMSI will continue for any future goods coming into existence or for the Proceeds from the sale of the goods.
(g) The Customer agrees to do anything that the Supplier requires for the purposes of
(i) ensuring that any security interest granted to the Supplier is enforceable under the PPSA;
(ii) enabling the Supplier to gain highest possible priority for all security interests granted by the Customer; and
(iii) enabling the Supplier to exercise rights in connection with any security interest.
(h) The Customer agrees and acknowledges that:
(i) these terms and conditions constitute a security agreement for the purposes of the PPSA and that a Security Interest exists in all goods previously supplied by the Supplier to the Customer and their proceeds (if any); in all future goods that may be supplied by the Supplier (and their proceeds) and in all products into which the goods are incorporated, processed or comingled (and their proceeds);
(ii) where the Customer is paid in respect of the goods so delivered, the Customer must, as the Supplier’s fiduciary, keep any such proceeds in a separate account and account to the Supplier in respect of those proceeds;
(iii) the Customer contracts out of and waives its rights under the following provisions of the PPSA, to the extent permitted, sections 95, 96, 117, 118, 121(4), 129, 130, 132(2), 132(3)(d), 132(4), 134(2), 135, 136(3)-(5), 137(2), 138, 142, 143 and the right to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded;
(iv) until ownership of the goods passes, the Customer must not give the Supplier a written demand or allow any other person to give the Supplier a written demand requiring the Supplier 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;
(v) 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 to the Supplier under these terms and conditions;
(vi) the Customer irrevocably grants to the Supplier the right to enter upon the Customer’s property or premises, without notice, and without being in any way liable to the Customer or to any third party, if the Supplier has cause to exercise any of the Supplier’s rights under sections 123 and/or 128 of the PPSA, and the Customer agrees to indemnify the Supplier from any claims made by any third party as a result of the Supplier exercising such right;
(vii) pursuant to section 275(6) of the PPSA, the Customer agrees it will not disclose to an interested person any of the matters described in section 275(1) of the PPSA without prior approval of the Supplier; and
(viii) if the Customer defaults in the performance of any obligation owed to the Supplier, the Supplier may enforce its Security Interest in any goods by exercising all or any of its right under these terms and conditions, or the PPSA.
(i) the Customer agrees that where the Supplier has rights in addition to those under part 4 of the PPSA, those rights will continue to apply.
(a) Joint and Several
An obligation of two or more persons under these terms and conditions binds them jointly and severally and every expressed or implied agreement or undertaking by which two or more persons derive any benefit in terms of these terms and conditions will take effect for the benefit of those persons jointly and severally.
(b) Entire Agreement
These terms and conditions govern the entire agreement between you and us and supersede all prior representations, agreements, statements and understandings between the Customer and the Supplier.