These terms and conditions and any credit application, quotation or proposal to which these terms are attached or in which these terms are referred to (the Agreement) is made between: Allweld Services Pty Limited of 2/8 Yangan Drive, Beresfield in the State of New South Wales (Allweld)
AND the person(s) or company named in the attached or previously signed credit application, quotation or proposal (the Purchaser) AND if the Purchaser is a corporation, the directors of the Purchaser who have signed or otherwise agreed to these terms (the Guarantor).
This Agreement may be accepted by doing either one or more of the following:
(a) Signing these terms and conditions of trade; or
(b) Signing the credit application, proposal or quotation issued by Allweld in which these terms and conditions were attached or referred to; or
(c) Issuing a purchase order or similar request for goods or services in response to the quotation or proposal referred to at (b) above.
THE PARTIES AGREE as follows:
1. Agreement to Buy and Sell
1.1 The parties acknowledge that Allweld will sell and the Purchaser will purchase goods and/or services from time to time (“the supply”) pursuant to these terms and conditions (“the Agreement”). If any future contract or document between Allweld and the Purchaser is inconsistent with this Agreement, then this Agreement will apply unless the subsequent contract is signed by Allweld, refers to and specifically alters this Agreement in writing.
1.2 In the event any credit, account or facility is granted pursuant to the terms of this Agreement, Allweld may not state a limit, or may extend, increase or reduce such credit or facility by serving written notice. If a credit limit is set and then exceeded by Allweld, such excess will not be a breach of this Agreement by Allweld.
1.3 In the event that Allweld serves notice in accordance with clause 1.2 then, apart from any extension, increase or reduction set out in the notice, this Agreement and any supporting guarantee will continue to operate in its amended form.
1.4 Should there be any variation to any of the information supplied by the Purchaser in its credit account application or in the structure of the Purchaser’s business (such as a conversation to or from a company or trust or the appointment of new directors or change in shareholders), Allweld shall be notified in writing. Until a new credit application form is signed and approved in writing by Allweld, the original Purchaser and those person(s) who signed as guarantor(s) shall remain liable to Allweld as though all goods and services were supplied to the original Purchaser.
2. Placement of Orders and Variations
2.1 The Purchaser must order the supply or other goods and services from Allweld in writing, email or other electronic communication acceptable to Allweld (which includes without limitation purchase orders, the acceptance by the Purchaser of a quotation, proposal or variation prepared by Allweld) (“orders”). Upon placement of order, the Purchaser will be bound to proceed with the purchase of the supply.
2.2 Allweld will not be bound by any terms or conditions expressed in orders or acceptances generated by the Purchaser except to the extent that such terms have been expressly agreed upon between the parties in writing and signed by Allweld. For the avoidance of doubt, even where the Purchaser attaches or refers to other terms and conditions in purchase orders or other requests for quotations or supply of goods and/or services, received after this Agreement has been entered into (additional terms), such additional terms are expressly excluded from this Agreement and will be of no force or effect against Allweld unless it expressly agrees otherwise (by notice in writing, signed by a director of Allweld).
2.3 Allweld may decline to accept any order without providing a reason in its absolute discretion.
2.4 If the Purchaser requests or Allweld deems there to be a variation in the scope of the supply, then Allweld may (but is not obliged to) notify the Purchaser in writing of the variation, the price variation, associated delays and any other information Allweld deems relevant.
2.5 Allweld is not obliged to commence any supply associated with any variation identified in accordance with clause 2.4 unless and until the Purchaser acknowledges and accepts in writing the variations contained in that notice
3. Delivery of Orders
3.1 The Purchaser acknowledges that goods delivered to a courier are outside Allweld’s control and Allweld will not be liable for any loss, damage, delay or non-delivery of goods contributed to by a third party, to the extent permitted by law.
3.2 Deliveries shall be made during normal working hours and at the cost and risk of the Purchaser. In the event the Purchaser or the Purchaser’s agent is not on site to accept the delivery, then the driver’s signature denoting the time, date & place of delivery, shall be deemed to be acceptance of the said delivery by the Purchaser.
3.3 If a date for delivery is nominated by the Purchaser, Allweld will not be bound to deliver the supply by that date unless it expressly agrees to do so in writing, signed by Allweld, in which case, it will be deemed to agree to use reasonable endeavours to deliver by the relevant date. Allweld shall be excused from any failure to deliver which is contributed to by causes beyond its reasonable control and the time specified for completion of delivery shall be extended commensurately. Delay in delivery or completion shall not constitute a breach of this Agreement, nor shall it affect any other provisions of this Agreement to Allweld’s disadvantage.
3.4 It is the responsibility of the Purchaser to carefully inspect the goods immediately after they are delivered. Any claims with respect to damage or defect will only be considered if made in the first instance by phone within 7 days of receipt, and also in writing within 7 days of delivery.
3.5 Some orders will require a percentage of the order price to be paid up front by the Purchaser to Allweld, some or all of which may be non refundable. This will be notified to the Purchaser after the order is placed.
4. Supply of Services
4.1 Allweld will, subject to complying with its obligations under this Agreement, exercise its independent discretion as to the most appropriate and effective manner of providing any services it is contracted to provide as part of the supply.
4.2 The Purchaser must notify Allweld of any defective services or any damage caused by or during the provision of services (the Faulty Services) within 48 hours from the completion of the performance of the services. In the absence of such notice, to the extent permitted by law, the Purchaser waives all of its rights under this Agreement and at law in respect of those Services.
4.3 In addition to those obligations under clause 4.2, the Purchaser must allow Allweld or its nominee to inspect the Faulty Services and perform any additional services Allweld or its nominee thinks fit.
4.4 The Purchaser at all times is responsible to ensure suitable and safe access to site. The Purchaser further indemnifies and saves harmless Allweld, and or it’s servants or agents against any loss or damage, in the event the Purchaser fails to provide suitable and safe access to site for delivery or performance of services.
4.5 The Purchaser acknowledges that on occasion, it is more effective and practical for the Purchaser’s goods to be delivered to Allweld for the services to be conducted at Allweld’s premises. In these instances, the Purchaser acknowledges that Allweld accepts no liability for loss, damage or theft of any goods belonging to the Purchaser during transportation or whilst in the care, custody or control of Allweld. For this reason, the Purchaser hereby releases Allweld from any claim, action, suit or other liability arising out of such loss, damage or theft and will ensure it maintains adequate insurance over all goods, extending to periods where such goods are at Allweld’s premises or in the care, custody or control of Allweld.
5. Payment and Price
5.1 All supplies are made at the price current at the time of delivery or completion. The price of the supply is EXW (Incoterms 2010) from Allweld’s site (22 Kinta Drive, Beresfield in the State of New South Wales). Costs and charges for freight and handling at the point of delivery to the Purchaser or the Purchaser’s agent are payable by the Purchaser unless otherwise stated on the quote/order form. All quotes remain current for 14 days only from the date of quote but are not fixed. NOTE pricing may vary from time to time subject to exchange rate variations and/or material increases outside the control of Allweld.
5.2 The Purchaser must pay to Allweld the price in relation to each supply as set out in the corresponding tax invoice. Terms are strictly 30 days from the end of the calendar month in which an invoice is dated unless otherwise agreed in writing between the parties.
5.3 Allweld may withdraw credit facilities to the Purchaser at any time without notice. Without limiting Allweld’s rights to withdraw credit,
Allweld reserves the right to stop & place the account and any supply on hold until the account is returned to the agreed trading terms, and Allweld agrees to recommence supply.
5.4 The Purchaser agrees to pay to Allweld an account service fee of 10 per cent per annum in relation to any invoices which are not paid strictly in terms of this Agreement, calculated daily and compounding monthly. The Purchaser acknowledges this service fee is a genuine pre estimate of the additional cost and damage suffered by Allweld in the event of a failure by the Purchaser to adhere strictly to the terms of this Agreement.
6. Passing of Title and Risk
6.1 Allweld reserves the following rights in relation to all goods forming part of the supply until all outstanding amounts owed by the Purchaser to Allweld are paid in full:
(a) title of all goods; and
(b) entry into the Purchaser’s premises (or the premises of any associated company or agent where goods are located) without liability for trespass or any resulting damage to retake possession of the goods; and
(c) to keep or resell any goods repossessed pursuant to clause 6.1(b).
6.2 If the Purchaser:
(a) resells the goods; or
(b) sells products manufactured using the goods; then
the Purchaser must hold an amount of the proceeds of the sale reflective of the invoice price of the goods sold or used in the manufacture of the goods sold in a separate identifiable account as the beneficial property of Allweld. The Purchaser must pay such amount to Allweld upon request.
6.3 Notwithstanding clauses 6.1 and 6.2, Allweld may take action against the Purchaser for the purchase price and all risk regarding the goods will pass to the Purchaser upon delivery.
6.4 In the event that the Purchaser is in default of this Agreement or in the event that an administrator, liquidator or trustee in bankruptcy is appointed to the Purchaser or the Guarantor, the Purchaser will appoint Allweld as the Purchaser’s attorney to secure performance of the Purchaser’s obligations under this Agreement.
6.5 Risk in all goods forming part of the supply will pass to purchaser on delivery.
7. Security and PPSA
7.1 For the purposes of this clause, “PPSA” means the Personal Property Securities Act 2009 (Cth) as amended from time to time. Where a particular section or term from the PPSA is used in this Agreement, it is deemed to be that section or term as amended, renumbered or replaced from time to time.
7.2 To the extent permitted by law, and for better securing payment of the Contract Price plus any costs or charges, the Purchaser hereby charges all of its real and personal present and after-acquired property in favour of Allweld.
7.3 The Purchaser acknowledges and agrees that this Agreement constitutes a security agreement in relation to Allweld’s security interest in all present and after-acquired goods in accordance with the PPSA. The Purchaser agrees to grant a “Purchase Money Security Interest” to Allweld.
7.4 The Purchaser also acknowledges and agrees that the PPSA applies to Allweld’s separate security interests set out in clause 6 and at 7.2 above.
7.5 To the extent permitted by law, the following provisions of the PPSA do not apply, and for the purposes of section 115 of the PPSA are contracted out of this Agreement:
(a) sections 95 (notice of removal of accession), to the extent that it requires Allweld to give a notice to the Purchaser, 96 (retain of accession) and 125 (obligation to dispose of or retain collateral);
(b) section 130 (notice of disposal), to the extent that it requires Allweld to give a notice to the Purchaser;
(c) section 132(3)(d) (contents of statement of account after disposal);
(d) section 132(4) (statement of account if no disposal);
(e) section 135 (notice of retention);
(f) section 142 (redemption of collateral);
(g) section 143 (reinstatement of security agreement).
7.6 For the purposes of section 14(6) of the PPSA, the Purchaser (and Allweld) agree that any payments received from the Purchaser pursuant to or in any way connected with this Agreement, will be applied in the following order of priority:
(a) Firstly, if there are any debts or obligations outstanding to Allweld which are not secured by clause 6 or this clause 7, then to those debts or obligations, in the order they arose;
(b) Secondly, if there are debts or obligations outstanding to Allweld which are secured, but are not classified as purchase money security interests (for the purposes of the PPSA), then to those debts or obligations, in the order they arose or were incurred; and
(c) Lastly, to any obligations or debts to Allweld secured by purchase money security interests (as defined by the PPSA).
7.7 The Purchaser consents to:
(a) and agrees to execute any other document or instrument required to give effect to the security interests created by this Agreement; and
(b) the registration with the relevant authority or public register of any security interest created by this Agreement or any other document required to give effect to a security interest created by this Agreement, including without limitation the registration of a financing statement or financing change statement on the Personal Property Securities Register.
7.8 The Purchaser must pay all costs of and incidental to the preparation, execution and registration of any instrument which is executed for the purposes of giving effect to this clause and must also pay all costs incidental to the withdrawal, discharge or release of such instrument.