Terms and Conditions of Trade
In these terms and conditions unless the context requires otherwise:
Contract means a contract for the sale of Goods to the Customer, which arises in accordance with clause 2 of these Terms.
Credit Terms means the credit application and terms of the credit agreement between the Supplier and the Customer.
Customer means the customer whose details appear in the Purchase Order and/or the Invoice.
Force Majeure means any event outside a party’s reasonable control including acts of God, declared or undeclared war, act of terrorism, fire, flood, storm, earthquake, hurricane, cyclone, tempest, riot, strike, power failure, industrial action, defaults of manufacturers or suppliers, the inability to obtain equipment, supplies or other facilities that are not caused by a failure to pay, labour disputes, theft, any criminal act or other similar events beyond.
Goods means goods which the Customer has agreed to purchase from the Supplier, details of which are contained in an Invoice.
Invoice means a tax invoice describing the Goods which the Supplier is selling to the Customer.
Price means the price payable in respect of the Goods, as specified in the Invoice.
Purchase Acknowledgement means a written communication from the Supplier to the Customer which confirms that the Supplier accepts the Customer’s order.
Purchase Order means an order for the Goods provided by the Customer to the Supplier.
PPSA means the Personal Properties Securities Act 2009 (Cth).
PPSR means the Personal Properties Securities Register established by the PPSA.
Privacy Law means the Privacy Act 1988 (Cth) and any legislation from time to time in force which affects privacy rights or Personal Information and any rules, regulations, guidelines or orders issued under the legislation, including the Privacy (Credit Reporting) Code.
Supplier means Industrial Building Systems Pty Ltd ABN 83 119 597 518 trading as Advanciv Pty Ltd ABN 17 615 618 936.
Terms means the terms and conditions of sale set out in this document.
Warranty means any manufacturer’s warranty provided to the Customer by the Supplier in relation to the Goods.
2.1. The Customer may order Goods from the Supplier by providing a Purchase Order to the Supplier.
2.2. Following receipt of a Purchase Order, the Supplier will send a Purchase Acknowledgement to the Customer, and upon the Supplier sending the Purchase Acknowledgement a contract arises between the Supplier and the Customer for the supply of the Goods at the Price, based on these Terms.
2.3. These Terms apply to all trade and all contracts between the Supplier and the Customer.
2.4. The Supplier will not supply goods to the Customer on any terms or conditions other than these Terms, which may be reviewed from time to time by the Supplier.
2.5. The Customer is deemed to have read, understood and accepted these Terms at the time it submits a Purchase Order.
2.6. The Supplier shall have full liberty to assign its rights or obligations under the Contract to another party, without the consent of the Customer.
3.1. Unless otherwise expressly agreed in writing, the amount payable for products and services will be the Supplier’s list price as at the date of delivery or collection. The Customer must pay the Price in the manner set out in the Invoice. The Price is exclusive of any freight charges, customs duty, GST or similar taxes, which the Customer will pay in addition to the Price at the same time and in the same manner as the Price.
3.2 The Supplier may vary the Price to reflect any change in costs, taxes or duties incurred by the Supplier. Any such variation in Price will apply to orders not yet accepted by the Supplier.
3.3 Payment terms are strictly thirty (30) days from the month of purchase. If payment should not be received by the due date or in accordance with the credit terms, an interest rate of 2.0% per month is chargeable on overdue balances.
3.4 The Customer may not off set against the Price any amounts due from the Supplier.
4. Collection and Delivery of Goods
4.1 The Customer may arrange to collect the Goods at its cost from the Supplier’s premises and where so agreed by the parties, the Customer must make all arrangements necessary to collect the Goods whenever they are tendered for collection, during standard business hours.
4.2 If the Customer does not collect the Goods within seven (7) days of the Supplier’s notification to the Customer that the Goods are ready for collection, then the Customer acknowledges that the Supplier will store the Goods (externally if necessary) and the Customer agrees to pay the Invoice for the Goods within the terms of that Invoice plus storage costs.
4.3 The Customer acknowledges that the Supplier is not responsible for any loss or damage to the Goods during collection or loading of the Goods and agrees to fully indemnify the Supplier against any claim made against the Supplier in relation to collection or loading of the Goods by either an employee of the Customer or any other person engaged by the Customer to collect and/or load the Goods.
4.4 Alternatively, where so agreed by the parties, the Supplier will deliver (or arrange for delivery of) the Goods to the Customer’s address as specified in the Purchase Order and/or the Invoice.
4.5 Unless specified otherwise in the Invoice, delivery and freight charges are not included in the Price, and are payable by the Customer at the same time as the Price is due to be paid.
4.6 The Supplier may, in its absolute discretion, charge in addition to the Price any costs incurred as a result of additional site or travel costs, storage of Goods; and/or delays or downtime in excess of 1.5 hours caused by the Buyer, a third party or inclement weather at a rate of $250.00 per hour plus GST.
4.7 Where the Supplier has agreed to deliver or arrange delivery of the Goods, the Customer agrees that:
4.7.1 all Goods are handled, lifted, carried and/or transported entirely at the Customer’s risk;
4.7.2 it is the Customer’s responsibility to arrange for insurance of the Goods and the Customer agrees to fully indemnify the Supplier against any claim made under any such insurance policy or against any other claim made in connection with the Goods by a third party or otherwise; and
4.7.3 the Customer must give the Supplier access to the property for delivery of the Goods or else, it is deemed that the Customer agrees to the Supplier unloading the Goods outside the property entirely at the Customer’s risk.
4.8. If for any reason beyond the Supplier’s control, including without limitation, a Force Majeure event, accident, blockade, governmental or quasi-governmental restraint, unavailability of Goods, loss or destruction of the Goods, delays in transport or an act of God, an order cannot be filled at the time required by the Customer or at all, the Supplier is not required to supply the Goods to the extent and for the period that it is so unable to supply the Goods, and the Supplier is not liable to the Customer in respect of any inability on its part to perform its obligations.
5. Withholding Supply
The Supplier reserves the right to withhold supply of Goods to the Customer, and the Supplier is not liable for loss or damage resulting directly or indirectly from such action where:
5.1 The Supplier has insufficient goods to complete an order; or
5.2 The goods specified in the Invoice have been discontinued.
6. Exchange of Credit Information
The Customer agrees that:
6.1. The Supplier may obtain from a credit-reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Supplier;
6.2. The Supplier may exchange information about the Customer with any credit providers named in the Customer’s application for credit or in a consumer credit report issued by a reporting agency, for the following purposes:
6.2.1. to assess an application by the Customer for credit;
6.2.2. to notify other credit providers of a default by the Customer;
6.2.3. to exchange information with other credit providers as to the status of the Customer’s credit account, where the Customer is in default with other credit providers; and
6.2.4. to assess the credit worthiness of the Customer.
6.3. The Supplier may give information about the Customer to a credit reporting agency for the following purposes:
6.3.1 to obtain a consumer credit report about the Customer; and/or
6.3.2 to allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
7. Return of Goods
Subject to the terms of any Warranty and the Customer’s rights (if any) under the Australian Consumer law:
7.1 The Customer must notify the Supplier if any Goods delivered under a Contract are defective or are otherwise in breach of these Terms within three (3) days of delivery. If the Customer does not give the requisite notice to the Supplier within this time frame, the Customer is deemed to have waived its rights in respect of such Goods; and
7.2 If the Supplier accepts a notice from the Customer in accordance with clause 7.1, the Supplier ‘s sole obligation is, at its discretion, either:
7.2.1 to replace the Goods with non-defective Goods; or
7.2.2 to refund to the Customer such part of the Price paid by the Customer which is referable to the defective Goods.
8.1. The Customer acknowledges and agrees that property in and title to any Goods remains with the Supplier and do not pass to the Customer until the Supplier receives payment in full of all money owing by the Customer to the Supplier on any account.
8.2 The Supplier and the Customer further agree that until property in and title to the Goods pass to the Customer:
8.2.1 the Customer must hold the Goods as the bailee for the Supplier;
8.2.2 if required by the Supplier, the Goods must be kept separate and identifiable;
8.2.3 if the Customer fails to make any payment in accordance with the Contract, the Supplier may give notice in writing to the Customer to return the Goods to the Supplier and, if the Customer fails to return the Goods, the Supplier is hereby authorised to enter the Customer’s premises or the premises of any agent at which the relevant Goods are located, without liability for trespass or any resulting damage, and retake possession of the Goods, and either keep or resell the Goods;
8.2.4 the Customer may sell the Goods to a third party in the ordinary course of the Customer’s business, provided that:
188.8.131.52 the Customer must hold all proceeds from the sale or disposal of the Goods on trust for the Supplier in a separate account from the Customer’s own money; and
184.108.40.206 the Customer must account to the Supplier for the proceeds of the sale or disposal of the Goods until the Customer’s total indebtedness to the Supplier is discharged;
8.2.5 in the event that the Goods are converted into or intermingled with other products, property in and title to the end products vest in the Supplier; and
8.2.6 the Customer may not charge the Goods in any way nor grant or otherwise give any interest in the Goods.
8.3 If the Supplier takes possession of any Goods in accordance with clause 8.2.3, the Customer remains liable to pay the Invoice.
9. Personal Properties Securities Act 2009
9.1. The Customer acknowledges that these Terms together with any Purchase Order and Invoice:
9.1.1. constitute a security agreement for the purposes of the PPSA; and
9.1.2. create a Security Interest in all Goods described in the Purchase Order and/or the Invoice.
9.2. The Customer acknowledges and agrees that the Supplier may effect a registration on the PPSR in relation to any Security Interest arising under or in connection with any Contract.
9.3. The Customer agrees that it must:
9.3.1. promptly sign any further documents and/or provide any further information where the Supplier may reasonably require to:
220.127.116.11 register a Financing Statement or Financing Change Statement in relation to a Security Interest on the PPSR;
18.104.22.168 register any other document required to be registered by the PPSA; and
22.214.171.124 correct a defect in a statement referred to in clause 126.96.36.199 or 188.8.131.52;
9.3.2 indemnify, and upon demand reimburse the Supplier for all expenses incurred in registering a Financing Statement or Financing Change Statement on the PPSR or releasing any Goods charged thereby;
9.3.3 not register a Financing Change Statement in respect of any Security Interest without the Supplier’s prior written consent; and
9.3.4 not register, or permit to be registered, a Financing Statement or a Financing Change Statement in relation to the Goods in favour of a third party without the Supplier’s prior written consent.
9.4. The Customer hereby waives its right to receive any notice under the PPSA (including notice of a verification statement), unless such notice is required by the PPSA and cannot be excluded.
9.5. If chapter 4 of the PPSA applies to the enforcement of a Security Interest arising under or in connection with this Agreement, the Customer agrees that the following provisions of the PPSA will not apply to the enforcement of that Security Interest:
9.5.1. section 95 (notice of removal of accession), to the extent that it requires the Supplier to give the Customer a notice; section 96 (when a person with an interest in the whole may retain an accession); section 121(4) (enforcement of liquid assets – notice to grantor); section 125 (obligation to dispose of or retain collateral); section 130 (notice of disposal), to the extent that it requires the Supplier to give the Customer a notice; section 132(3)(d)(contents of statement of account after disposal); section 132(4)(statement of account if no disposal); section 142 (redemption of collateral); section 143 (reinstatement of security agreement).
9.6 Where a person is a controller in relation to the Goods, Part 4.3 of the PPSA does not apply to the enforcement of any Security Interest in the Goods by that controller.
9.7 Expressions used in these Terms and in the PPSA have the same meanings as when used in the PPSA.
10.1 Risk in the Goods passes to the Customer upon the Goods being either collected by the Customer (at either the Supplier’s premises or any other location where the Goods are stored) or when dispatched for delivery by the Supplier) and the Customer accepts all risk involved in the use and/or possession of the Goods.
10.2 The Customer must insure the Goods against all loss or damage, and the Supplier’s interest must be noted on such insurance policy.
11. Exclusion of Warranties
11.1 This clause 11 only applies if the Australian Consumer Law does not apply to the Contract, for example if:
11.1.1 the Goods are purchased for the purpose of resupply or for the purpose of being used up or transformed in trade or commerce;
11.1.2 the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption; and/or
11.1.3 the Price is higher than $40,000.00. Nothing in these Terms is intended to have the effect of excluding or limiting any consumer guarantees given by the Supplier under the Australian Consumer Law.
11.2 Subject to clause 11.1, except as provided in these Terms and any Warranty and to the extent permitted by law, and except where conditions and warranties as to the supply of goods are implied by any statute or rule of law, all implied conditions, guarantees and warranties (including guarantees or warranties as to merchantability and fitness for purpose) are expressed excluded.
11.3 Subject to clause 11.1, the Supplier makes no representation or warranty in relation to any Goods not manufactured by the Supplier, all of which (to the extent permitted by law) are sold to the Customer “as is”. The Customer agrees to look solely to the Warranty (if any).
12. Limitation of Liability
12.1. This clause 12 only applies if and to the extent that the Australian Consumer Law does not apply to the Contract. Clause 12.1 describes Contracts to which the Australian Consumer Law does not apply. Nothing in these Terms is intended to have the effect of limiting the Supplier’s liability under the Australian Consumer Law.
12.2. Subject to clause 12.1, the Supplier accepts no responsibility and is not liable for any direct or indirect, special or consequential loss or damage or injury to any person, corporation or other entity in connection with a Contract or the Goods, howsoever caused.
12.3. The Supplier accepts no responsibility and is not liable for any loss incurred in connection with the storage of any goods by the Supplier.
12.4. To the fullest extent permissible by law and subject to clause 12.1 and the terms of any Warranty, the Supplier’s liability to the Customer is limited to the lesser amount of:
12.4.1. the cost of replacing the Goods; and
12.4.2. the cost of repairing the Goods, provided always that the Supplier’s liability will not exceed the amount paid or payable by the Customer under the relevant Contract.
13. Dispute Resolution
13.1. If a dispute arises out of or relating to a Contract (a Dispute), either party may notify the other party of the nature and particulars of the Dispute, and the parties must, within 7 days of the delivery of such notice, commence discussions to attempt to resolve the Dispute in good faith, without the necessity of resorting to any formal proceedings.
13.2. If the Dispute is not resolved within the next 10 days, either party may refer the Dispute to mediation in accordance with, and subject to, the mediation rules of the Australian Commercial Disputes Centre (ACDC). The parties agree that they must bear the costs of mediation under this clause 13 equally.
13.3. If neither party refers the dispute to mediation within 24 days of delivery of the initial notice of the Dispute, either party may commence court proceedings in respect of the Dispute.
14.1 Once the Customer has placed a Purchase Order with the Supplier for customised Goods, the Customer may not cancel a Purchase Order at any time thereafter.
14.2 Where the Customer has placed a Purchase Order for standard Goods, the Customer may cancel the Purchase Order until such time as the Supplier has issued a Purchase Acknowledgement in respect of that Order.
14.3 The Supplier may cancel any contract or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer and refunding payment made by the Customer in respect of the Price. The Supplier is not liable for any loss resulting from such cancellation.
15. Intellectual Property
15.1. The Customer acknowledges that no rights to any intellectual property in the Goods (including, without limitation, patent, trademark, design, copyright or plant breeder’s rights) are transferred to the Customer.
15.2. The Customer must notify the Supplier immediately if the Customer’s use of the Goods results in an actual or alleged infringement of a third party’s intellectual property rights.
15.3. The Customer is solely responsible for any infringement of the intellectual property rights of any third party resulting from the Customer’s use of the Goods, and the Customer must indemnify the Supplier for any costs, expenses, damages or liability incurred by the Supplier arising from any such infringement.
16. Enforcement Expenses and Costs
The Customer agrees that it must pay to the Supplier on demand any expenses, fees and disbursements incurred by the Supplier in recovering any amount owing to it by the Customer, including any reasonable debt collection agency fees and legal expenses and any costs incurred by the Supplier in respect of any order cancelled by the Customer.
Any Terms and Conditions and any Contract resulting between the parties are to be interpreted in accordance with and governed by the laws of the state of New South Wales. The Supplier and the Customer agree to a non-exclusive jurisdiction of the courts of the State of New South Wales and any courts which may hear appeals from those courts in respect of any proceedings in connection with any Contract.
If any of these Terms is invalid or unenforceable in any jurisdiction, that Term must be read down for the purposes of that jurisdiction, if possible, so as to be valid and enforceable, and is otherwise capable of being severed to the extent of the invalidity or unenforceability, without affecting the remaining Terms or affecting the validity or enforceability of that Term in any other jurisdiction.
The non-exercise of or delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of a power or right preclude any other or further exercise of it or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
20. Entire Agreement
These terms, together with the Purchase Order, the Purchaser Acknowledgement and if applicable, the credit terms any other document issued by the Supplier in respect of a Purchase Order, constitute the entire agreement of the parties on the subject matter. The only enforceable obligations and liabilities of the parties in relation to the subject matter are those that arise out of the provisions contained in the Agreement. All representations, communications and prior agreements in relation to the subject matter are merged in and superseded by this Agreement.