1 Interpretation and Construction
1.1 Definitions
(a) In these Terms of Trade, the following words have their corresponding meanings, unless the context requires otherwise: “CA” means Dibbsy’s Technical Services and includes its agents, employees, successors in title and permitted assigns. “Client” means any person, company or other entity that has requested the supply of goods and/or services from CA and includes its employees, agents, successors in title and permitted assigns.
(b) “Order” means any order made by the Client for the supply of goods and/or services from CA. “Quotation” means any quotation issued by CA to the Client for the supply of goods and/or services. “Price” means the price payable by the Client for the supply of goods and/or services in accordance with clause 4 of these Terms.
(c) “services” means any services rendered by CA to the Client, at the Client’s request.
(d) “Terms” means these terms of trade which apply to any supply of goods and/or services by CA to the Client, as amended from time to time.
1.2 Construction
(a) a reference to these Terms or another agreement includes any variation;
(b) A reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements;
(c) The singular includes the plural and vice versa;
(d) The masculine includes the feminine and neuter and vice versa;
(e) A reference to a person includes a reference to the person’s executors, administrators, successors, substitutes and permitted assigns;
(f) An obligation, agreement, representation or warranty on the part of or in favour of two or more persons binds, and/or is for the benefit of them jointly and severally;
(g) A reference to anything is a reference to the whole or any part of it; and
(h) References to parties or clauses are, unless otherwise provided, references to the parties and clauses contained in these Terms.
2 Supply of Goods and/or Services
2.1 CA may issue a Quotation upon the Client’s request for the supply of goods and/or services or CA may accept an Order from the Client for the supply of goods and/or services.
2.2CA may refuse to sell the goods (whether or not part of a contract has been performed} where the goods are unavailable for any reason whatsoever, a non-complying order is received or the Client has defaulted under CA’s terms of credit. Quotations are estimates only and are subject to withdrawal, correction or alteration at any time prior to CA’s acceptance of the Client’s order.
2.3 Unless otherwise stated, any Quotation issued by CA remains open for acceptance from the time stated on the Quotation and if no time stated, for 30 days unless withdrawn earlier.
2.4 An Order for the supply of goods and/or services shall identify the goods or services ordered, the quantity required and refer to any Quotation pursuant to which the order is made.
2.5 All drawings, specifications, or descriptions provided by CA with respect to goods and/or services including but not limited to weights, dimensions, or performance or other attributes are approximate only and do not form part of any agreement and any error in such descriptions do not void the agreement between CA and the Client and do not give rise to any claim.
2.6 CA may specify a minimum order value and impose a surcharge should the Client place an Order for goods and/or services value less than the minimum order value.
- 7 CA may supply goods that vary from the goods and/or services ordered by the Client and the Client must accept the goods and/or services supplied by CA provided that any
2.8 CA reserves the right, whether or not an Order has been accepted and without notice to the Client to withhold supply to the Client and will not be liable for loss or damage resulting directly or indirectly from such action where CA has: (a)insufficient goods to fulfil the order; (b)the goods ordered has been discontinued; and/or(c)CA has determined, in its absolute discretion that credit should no longer be extended to the Client.
3 Acceptance
3,1 The Client warrants that it has the power to enter into this agreement, is solvent and able to pay its debts as and when they fall due, this agreement creates a binding and legal
obligation and all information provided to CA by the Client is true and correct in all material respects.
3.2 The Client agrees that it upon receiving a Quotation or malting an Order for the supply of goods and/or services, these Terms apply and. the Client accepts the Terms without
amendment and agrees to be bound by these Terms.
3.3 The Client agrees that the Terms apply over any other document or agreement between the parties to the extent of any inconsistency.
3.4 If the Client accepts the Quotation or places an Order as trustee of a Client then in addition to that entity the trustee agrees to bind all trusts of which the entity is a trustee.
4 Payment, Credit and Price
4.1The Price shall be the Price as determined by CA in its absolute discretion as follows:
(a) the price in accordance with the Quotation issued by CA to the Client;
(b) the price of any invoices provided by CA to the Client; or
4.2 The Client may be required to pay a non-refundable deposit, at the discretion of CA.
4.3 Unless stated otherwise, the Price is taken to be exclusive of goods and services tax (“GST”).
4.4 The Client agrees that GST at the prevailing rate at the date of invoice will be included in the amount due and payable on the Price and is payable by the Client in full at the same time as payment of the Price. The Client must also pay any other taxes or duties that may be applicable in addition to the Price, unless such duties or taxes are expressly included in the Price.
4.5 All amounts and prices stated on the Quotation are those at the date of the Quotation. If the Client requires any variation which affects the cost or rates for insurance, freight, cartage or shipping expenses, duties, exchange rates, sorting and stacking costs, costs of materials or any other amounts used to calculate the price or amounts stated on the Quotation or if those inputs increase in cost before acceptance or during the agreement, any increase in those amounts shall be added to the Client’s account and the Client shall be liable for the increase in Price.
4.6 If the specifications, drawings or particulars for the goods and/or services are provided by the Client, and the price is based on the basis of quantities then if any adjustment in quantities are required, the price provided in any Quotation is adjusted on the unit price as particularised on the Quotation, or otherwise as CA shall reasonably determine having regard to the usual price contained on CA’s current price list at the time of the Quotation.
4.7 Unless stated otherwise, time for payment is of the essence and will be payable as nominated by CA:
(a) on or before delivery of the goods or provision of services;
(b) the date specified on the invoice as being the date for payment;
(c) the date which is 7 days following the date of any invoice provided to the Client by CA.
(d) by way of instalments as per an agreed payment schedule; or
4.8 Payment must be made by cash, personal cheque, company cheque, electronic funds transfer, credit card or by any other payment method nominated by CA from time to time.
4.9 CA may charge a fee for overdue payments in accordance with clause 5 or may charge to the Client bank fees imposed on payments including credit card payments.
4.10 CA may, in its absolute discretion, supply the goods and/or services on credit to the Client in which case these Terms shall apply and the Client acknowledges and agrees that any credit provided to the Client by CA is to be applied wholly or predominantly for commercial purposes.
4.11 The grant of any credit facility or nomination of any credit limit is in the absolute discretion of CA. CA may vary and/or withdraw any credit facility at any time and without any liability to the Client or any other party.
4.12 The Client shall not deduct any sum from the amount due on any invoice or statement for any reason whatsoever.
4.13 CA may, at its discretion charge the Client a surcharge on credit card transactions of 2.5%
5 Unpaid Invoices, Interest and Costs
5.1 If invoices or monies outstanding are not paid in full by the due date for payment, CA may charge the Client interest on the unpaid amount to be accrued daily from the date when payment becomes due until the date of payment at the rate of two and a half percent (2.5%) per calendar month and interest shall compound at that rate both before and after any judgment obtained by CA.
5.2 The Client is not entitled to set off, deduct or otherwise withhold payment of any amount due and owing to CA including in circumstances where the Client has disputed the invoice or alleged amounts are owed or will become owing by CA to the Client.
5.3 The Client is liable with respect of all costs and disbursements incurred by CA or its agents in recovering payment of any outstanding invoice or in enforcing its rights under these Terms, including, but not limited to, legal costs determined on a solicitor/own client basis, internal administration fee, mercantile agents costs and bank dishonour fee.
5.4 CA is entitled to retain any goods or other documents held on the Client’s behalf pending payment of any outstanding monies. If CA has in its possession goods belonging to the Client for repair or modification, pending payment of any outstanding monies, CA shall have a lien on the goods and have the right to retain or sell the good, in accordance with laws relating to the sale or disposal of uncollected goods and the lien shall continue in force notwithstanding CA commencing legal proceeding or obtaining judgment as against the Client for recovery of outstanding monies.
6 Title
6.1 Until CA receives full payment in cleared funds of all monies outstanding for all goods and/or services supplied by it to the Client, as well as all other amounts owing to CA by the Client and the Client has complied with its obligations in full pursuant to these Terms:
(a) title and property in all goods vests in CA and does not pass to the Client;
9 Warranties
9.1 CA expressly denies and excludes any warranties or conditions which would otherwise be implied to the maximum extent possible by law including but not limited to merchantable quality, suitability, fitness of purpose, quality, suitability, or otherwise. CA acknowledges that these Terms do not exclude any statutory warranties which may be implied pursuant to the Competition and Consumer Act 2010 (Cth) and if the Client is a consumer pursuant to this Act, then CAs liability is limited as provided for in that Act.
11 Release and Indemnity
11.1 The Client hereby releases and indemnifies and agrees· to keep CA indemnified from any and all costs, damages, liabilities, expenses or losses including indirect, consequential losses (including but not limited to loss of profit), that CA may incur in relation to the Client or any third party, where the cost, damage, liability, expense or loss is caused by or contributed to by the goods supplied or services performed, any defect or fault in workmanship or design or their use, a breach of these Terms or for any other reason whatsoever.
12 Limitation of Liability
12.1 The Client agrees, to the fullest extent possible by law, in relation to any cost, damage, liability, expense or loss (including those contributed or cause by CA’s negligence or breach of any condition or warranty):
(a) if the Client is not a consumer pursuant to the Competition and Consumer Act 2010 (Cth), to limit any claim made to CA, in CA’s absolute discretion to:
(i) the value of any express warranty provided by CA to the Client or any warranty to which the Client is entitled;
(ii) replacement of the goods or services and/or the supply of equivalent goods;
(iii) repair of the goods;
(iv) repay the purchase price in the event that the payment has been received from the Client; or
(v) payment of the cost of replacing, repairing or acquiring equivalent goods;
(b) if CA is required to replace the goods pursuant to the Competition and Consumer Act 2010 (Cth) but cannot do· so for any reason whatsoever, CA may refund the Price, if the Price has been paid by the Client.
(c) CA shall not be liable for any loss or expense arising after seven (7) days from the date of delivery (or at all once goods have been unpacked, affixed and/or otherwise used or applied) after which the Client is deemed to have accepted the goods in their present state;
(d) CA shall not be liable for any damages for personal injury or death, any damage to property and/or any contingent, consequential, direct, indirect, special or punitive damages whether due to negligent act or omission of CA or its employees or agents or otherwise and the Client acknowledges this limitation of liability and agrees to limit any claim accordingly; and
(e) no other term, condition, agreement, warranty, representation and/or understanding whether express or implied, in any extending to, otherwise relating to or binding upon CA other than these Terms is made or given by or on behalf of CA.
12.2 CA shall not be liable to the Client for any loss or damage to any persons or property for death or injury caused by any actual omission (including negligent acts or omissions) of CA.
12.3 Notwithstanding clause 12.1 and clause 12.2, a Client shall not be entitled to make any claim upon CA whatsoever if any amounts are outstanding from the Client to CA.
13 Intellectual Property Rights
13.1 The Client acknowledges and agrees that it does not have any intellectual property rights in the goods and that all rights that CA holds in the
intellectual property associated with the goods supplied and has the right to use the intellectual property in the goods including where CA has developed or designed the goods for the Client, remain the property of CA.
13.2 The Client acknowledges that all designs or other specifications or particulars provided by it with respect to the goods will not cause CA to infringe any intellectual property right in provision of the goods and/or services and the Client indemnifies CA against any action taken by a third party against CA with respect to any infringement relating to such design or specifications.
14 Security
14.1 In order to secure the performance by the Client of its obligations under these Terms, the Client, and where the Client is unincorporated each proprietor of the Client, hereby charges with payment of the moneys and compliance with all obligations owed by the Client to CA all beneficial interests (freehold and leasehold) in real and personal property held now or in the future by the Client or proprietor.
14.2 The Client, and where applicable, each proprietor agrees that if demand is made upon it, him or her by CA, the Client or, if applicable, that proprietor will immediately execute a consent to caveat, or a caveat or mortgage, as required by CA to secure the obligations pursuant to this clause 14.
14.3 The Client indemnifies CA in relation to all of its costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising CA’s right pursuant to this clause 14.
14.4 The Client or, if applicable, that proprietor irrevocably and by way of security appoints. CA and any director, credit manager or solicitor engaged by CA to be its, his or her true and lawful attorney to give effect to this clause 14 including but not limited to execute and register all documents.
15 PPSA
15.1 Defined terms in this clause 15 have the same meaning as given to them in the Personal Property Securities Act 2009 (Cth) (“PPSR”)
15.2 CA and the Client acknowledge that this agreement constitutes a Security Agreement and constitutes a Purchase Money Security Interest (PMSI) in favour of CA over the goods supplied or to be supplied to the Client, as Grantor, pursuant to these Terms.
15.3 CA and the Client acknowledge that CA, as Secured Party, is entitled to register its interest in the goods supplied or to be supplied to the Client, as Grantor, under this agreement on the Personal Properties Securities Register as collateral by registering a financing statement or financing change statement.
15.4 The Client expressly waives its right to receive notification of or a copy of any verification statement with respect to the registration of a financing
statement or a financing change statement relating to a security interest granted by the Client to CA.
15.5 The Client agrees to indemnify CA on demand for all costs and expenses, including legal costs and expenses on a solicitor/ client basis, associated with the following:(a) registration, amendment or discharge of any financing statement registered by or on behalf of CA; and(b) enforcement or attempted enforcement of any security interest granted to CA by the Client.
15.6 If the Client is in default of its obligations and CA takes possession of any goods pursuant to its security interest, the Client remains liable for the difference between the market value of the goods at the time they are sold by CA and the amount of the Client’s obligations for which it is in default.
- 7 The Client agrees and undertakes to immediately notify CA of any change to its name, address or personal details and authorises CA to register a
financing change statement without prior consent of the Client.
15.8 The Client agrees and undertakes not to agree, encourage or in any way allow another person or entity to register a financing statement without the prior written consent of CA and the Client shall provide written notice to CA upon becoming aware that of any other person or entity are taking steps to register a security interest with respect to the Client.
15.9 The Client agrees that to the maximum extent permitted by law, sections 130, 142 and 143 of the PPSA will not apply.
15.10 The Client agrees, to the extent possible under law permitted by law to waive the following rights under the PPSA:
(a} receipt of a verification statement pursuant to section 157 and a statement of account where there is no disposal pursuant to section 130(4) or pursuant to section 132 where there is a disposal;
(b} to recover any proceeds pursuant to section 140;
(c) to object to the purchase of the collateral by the secured party pursuant to section 129;
(d) to receive notice of an intention to seize collateral pursuant to section 123;
(e} to receive notice of disposal of collateral pursuant to section 130;
(f) to receive notice of retention of Collateral pursuant to section 134 or to object to that notice pursuant to section 13 7;
(g} to redeem Collateral pursuant to section 142;
(h} to reinstate a security agreement pursuant to section 143;
(i} to receive a notice of removal of accession under section 95; and
(j) any other right in favour of the Client that can be lawfully contracted out of pursuant to section 115 of the PPSA which shall not apply to these Terms or any security.
16 Statement of Debt
16 .1 A certificate signed by a director, secretary, credit manager or any other authorised person of CA shall be prima facie evidence of the indebtedness of
the Client to CA at that time.
17 Privacy and Credit Information
17.1 The Client irrevocably authorises CA to make enquiries exchange, collect and use a Customer’s personal information including credit information and information relating to property, business or other solvency matters from time to time which CA deems necessary including enquiries with persons nominated as trade references, financiers, credit providers, credit reporting bodies, government departments and/or other organisations (“Information Provider”) for the following purposes:
(a) obtaining information on the credit position of the Client;
(b) investigating the credit worthiness of the Client in relation to the credit to be provided by CA;
(c) for marketing purposes (unless the Client has notified CA that it wishes to opt out of direct marketing;
(d) to allow CA to provide a credit facility for the supply of goods and/or services to the Client;
17.2 The Client acknowledges that the information exchanged under clause 17.1 includes any information in relation to the Client’s credit worthiness or credit history.
17.3 The Client consents and irrevocably authorises:
17 .4 Notwithstanding this clause 17, to the maximum extent permitted by law, Client agrees, unless the Client otherwise withdraws consent, to waive all
rights under the Privacy Act 1988 (Cth}.
18 Default
18.1 Without prejudice to any other remedies available to CA, if the Client becomes insolvent or appoints an administrator, receiver, receiver and manager, liquidator or trustee in bankruptcy or is in breach of any these Terms (including term for payment), all monies become immediately due and owing to CA and CA may immediately:
(a) terminate or suspend supply of goods and/or services;
(b) retain all monies paid and/or take immediate possession of goods which have not been paid for;
(c) cease all future deliveries;
(d) cancel all or any part of any order unfilled; and/or
(e) recover from the Client any loss of profits arising as a result of the default of the Client.
18.2 If CA exercises its rights pursuant to clause 18.1, it is not liable to the Client for any consequential loss or damages suffered by the Client.
19 Force Majeure
19.1 CA shall not be or be deemed to be in default or breach of any agreement as a result of force majeure. Force Majeure includes national emergency, war,
prohibitive government regulations or any other cause beyond the reasonable control of CA including strike and lockouts or trade disputes which means that the goods and/or services which are the subject of the Quotation and/or Order cannot be provided by CA to the Client.
20 Customer Restructure
20.1 The Client shall notify CA immediately in writing of any change to its structure or management including change of director, shareholder, partnership, trustee or management or its details (including changes to name, address or contact details}. The Client agrees that if it fails to comply with this clause 20, it is liable and shall indemnify CA for any resulting loss suffered by CA.
21 Miscellaneous
21.1 Notices. A notice, demand, wavier, approval or other document given or required to be given pursuant to these Terms must be in writing and may be
given to the recipient by way of personal service, prepaid post, facsimile transmission or email transmission at the address of the party as provided from time to time.
21.2 Severance. In the event that any term or provision or part of a term or provision of these Terms cannot be given effect or is declared void for any reason then the term or provision or part which cannot be given effect shall be severed and read down restrictively and the remaining terms and provisions shall remain valid, binding and enforceable on the parties in all respects.
21.3 Waiver. No rights under these Terms will be waived unless agreed in writing and signed by CA. CA does not waive a right by giving an extension or forbearance to the Client. No waiver of these Terms shall be construed as a continuing waiver of the term or provision. A waiver by CA of any matter does not prejudice its rights in respect of any matter. Any non-exercise or partial exercise of or any delay in exercising any right or remedy does not constitute a waiver of that right or remedy.
21.4 Variation. All goods and/or services sold by CA are sold and supplied on these Terms, as amended from time to time by CA in its absolute discretion or otherwise agreed by CA in writing. The Client agrees that it shall be deemed to have notice of change to these terms and be bound by any subsequent versions of the terms as they appear on CA’s website from time to time, whether or not the Client has actual notice of any variation.
21.5 Assignment. The Client is not entitled to assign the benefits or obligations under this agreement to any entity without CA’s prior written consent, which may be given in CA’s absolute discretion. CA may assign all or any part of the benefits and obligations under this agreement without the requirement for the Client’s consent.
21.6 Jurisdiction. These Terms and any contract between CA and the Client shall be governed by the laws of State where CA has its principal place of
business and each party irrevocably submits to the non-exclusive jurisdiction of the courts of the said state.
21.7 Entire Agreement. These terms supersede all previous agreements, discussions and representations between CA and the Client and constitute the
entire agreement in relation to the agreement for provision of goods and/or services between CA and the Client.
22 Special Conditions