Standard Terms and Conditions
1. The Company has agreed to provide you with goods (Goods) on the terms and conditions of these Standard Terms and Conditions (the Agreement).
2. Any terms or conditions contained in, referred to, or endorsed upon the Goods or any correspondence, invoices or documents provided by or connected to the Company or you in connection with this Agreement do not form part of this Agreement, unless the Company expressly agrees otherwise in writing.
3. Where the Company is responsible for the Delivery of Goods, the Company will use commercially reasonable efforts to deliver the Goods to the location (Delivery Point) specified in the relevant document (including an email) issued by you requesting the delivery of certain Goods (Order) by the date specified by the Company (Delivery Date), but does not guarantee that it will meet any such timeframes.
4. You acknowledge and agree that the Company is not liable for any losses, liabilities or costs sustained, incurred or suffered by you or any third party as a result of a failure to deliver the Goods to the Delivery Point or to deliver the Goods by the Delivery Date.
5. After submitting an Order, you are not permitted to cancel, amend or postpone that Order, unless agreed otherwise in writing by the Company.
6. Unless otherwise specified, the fees specified in an invoice are exclusive of all costs associated with the delivery of the Goods to the Delivery Point.
7. Delivery will be taken to have occurred at the time when the Goods are:
7.1 delivered to the Delivery Point (where the Company is responsible for the delivery of the Goods);
7.2 made available to be collected by you or on your behalf; or
7.3 left at the Delivery Point or returned to the Company location in accordance with clause 8 below.
8. If the Delivery Point is unattended at the time delivery is to take place, the Company may either:
8.1. leave the Goods at the Delivery Point; or
8.2. return the Goods to the Company location in which case any costs associated with the return, storage and re-delivery of the Goods will be borne by you.
9. Notwithstanding that the Goods may remain in the possession or control of the Company, risk in the Goods will pass to you at the time delivery is taken to have occurred in accordance with clause 7 above.
10. Title in the Goods passes to you upon payment by you of all amounts due.
11. The Company may elect to deliver Goods by instalments, in which case, failure of the Company to deliver a particular instalment will not entitle you to cancel any other instalments.
Payment and Taxes
12. You must pay each invoice issued by the Company in accordance with the terms specified in the relevant invoice.
13. The Company may charge you interest on any invoices paid late at an annual rate equal to 8% per annum during any period in which an amount payable able under this Agreement remains unpaid. Interest payable under this clause 13 will be compounded every three months.
14. If any authority imposes a duty, tax, levy, or fee upon any transaction under this Agreement, excluding those based on the Company’s net income, then you agree to pay that amount. You are responsible for any personal property taxes for each Good from the date the Company ships the Good to you.
15. Each party will use commercially reasonable efforts to, at that party’s own expense, supply appropriate documentation as reasonably required by the other party in order to ensure appropriate tax treatment of transactions contemplated under this Agreement.
16. You acknowledge and agree that you are not permitted to set off any amounts owed to the Company under this Agreement with any amounts paid by or owed to you by the Company under any other agreement.
17. In this clause:
17.1. words and expressions that are not defined in this Agreement but which have a defined meaning in the GST Law have the same meaning as in the GST Law;
17.2. GST means GST within the meaning of the GST Law and includes penalties and interest; and
17.3. GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
18. Except as otherwise provided in clauses 17 – 22 all consideration payable under this Agreement in relation to any supply is exclusive of GST.
19. If GST is payable in respect of any supply made by a supplier under this Agreement (GST Amount), the recipient must pay to the supplier an amount equal to the GST payable on the supply. Subject to clause 20, the recipient must pay the GST Amount at the same time and in the same manner as the consideration for the supply is to be provided under this Agreement in full and without deduction, set off, withholding or counterclaim (unless otherwise provided in this Agreement). If the rate of GST changes, the supplier may adjust the charge or other amount payable to take into account that change from the date the change becomes effective.
20. The supplier must provide a tax invoice to the recipient before the supplier will be entitled to payment of the GST Amount under clause 19.
21. If this Agreement requires a party to pay, reimburse or contribute to any expense, loss or outgoing suffered or incurred by another party, the amount which the first party must pay, reimburse or contribute is the sum of:
21.1. the amount of the payment, reimbursement or contribution, less any input tax credit in respect of the payment, reimbursement or contribution to which the other party is entitled; and
21.2. if the payment, reimbursement or contribution is subject to GST, an amount equal to that GST.
22. If an adjustment event occurs in relation to a taxable supply under this Agreement:
22.1. the supplier must issue an adjustment note to the recipient within 7 days after becoming aware of the adjustment; and
22.2. any payment necessary to give effect to that adjustment must be made within 7 days after the date of receipt of the adjustment note.
23. The Company warrants that all Goods will be free from defects in workmanship and materials for twelve (12) months from the time delivery is taken to have occurred in accordance with clause 7 above. Additional warranties may be provided by the Company for particular Goods as specified in Appendix 1 to this Agreement.
24. The warranties provided in clause 23 and Appendix 1 (if any) are subject to the following conditions:
24.1. the relevant Good must be transported, stored and installed in accordance with the Company’s technical guidelines and recommendations;
24.2. the relevant Good must not have been damaged by fire or floods, vandalism, accident, impact, alterations, misuse, any climatic or soil conditions or any similar incident that the Company could not reasonably have predicted would likely affect the Good during the warranty period; and
24.3. the damage to the relevant Good must not have been caused by an act or omission by you (including, but not limited to, your negligence).
25. To the maximum extent allowable under applicable law, the warranties provided in clause 23 and Appendix 1 (if any) are the exclusive warranties in relation to the Goods and all other warranties, express or implied, including implied warranties or conditions of satisfactory quality, merchantability, non-infringement, and fitness for a particular purpose are excluded. To the extent any such warranties are not able to be excluded, the remedy for breach of such warranty is limited as set out in clause 26.
26. If a particular Good does not function as warranted in clause 23 or Appendix 1 (if any) during the warranty period, the Company will, in the Company’s sole discretion, endeavour to either repair or replace the relevant Good with a functionally equivalent product. If the Company is unable to do so, you may return the Good to the Company for a refund of the amount you paid for that Good.
Loss or Damage to Goods
27. In the event that any Goods received by you are damaged, not of a suitable standard or are not delivered on the Delivery Date (including, for example, where Goods are lost or damaged during transit), you must provide notice in writing to the Company within fourteen (14) days of the Delivery Date. If you fail to provide such notice within fourteen (14) days of the Delivery Date, the relevant Goods will be taken to be accepted by you.
Personal Property and Securities Act
28. If the Company determines that the Agreement or a transaction contemplated by it is or contains a security interest taken to be granted by you for the purposes of the PPSA, the provisions of clauses 29 – 33 apply.
29. You consent to the Company affecting and maintaining a registration on the register (in any manner it considers appropriate) in relation to the security interest contemplated by this Agreement and agrees to sign any documents and provide all assistance and information to the Company required to facilitate this. The Company may at any time register a financing statement or financing change statement in respect of any security interest created by the arrangements contemplated by this Agreement. You waive the right to receive notice of a verification statement in relation to any registration on the register.
30. You undertake to:
30.1 do anything (including executing any new document or providing any information) that is required by the Company to enable the Company to acquire and maintain a perfected security interest under the PPSA which is enforceable, perfected or otherwise effected against you and third parties;
30.2 not register a financing change statement in respect of any security interest contemplated by this Agreement without the prior written consent of the Company; and
30.3 not register, or permit to be registered, a financing statement or a financing change statement in relation to the Secured Property in favour of a third party without the prior written consent of the Company.
31. If Chapter 4 of the PPSA would otherwise apply to the enforcement of a security interest arising in connection with this Agreement, the following provisions will not apply and you will have no rights under them: section 95, section 121(4), section 125; section 129(2) and 129(3); section 130; section 132(3)(d); section 132(4); section 135; section 142 and section 143.
32. Unless otherwise agreed and to the extent permitted by the PPSA, the Company and you agree not to disclose information of the kind referred to in section 275(1) of the PPSA to an interested person, or any other person requested by an interested person. You agree to waive any right it may have, or but for this clause may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.
33. In this Agreement, PPSA means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it, and the following words have the respective meanings given to them in the PPSA: collateral; financing change statement, financing statement, interested person, register, registration, security agreement, and verification statement.
Liability and indemnity
34. Subject to clauses 35 and 36 below, neither party (nor its related bodies corporate) will be liable, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, under or in connection with this Agreement for any special, incidental, exemplary, indirect or economic consequential damages, or lost profits, business value, revenue, goodwill or anticipated savings, even if such Party has been advised of the possibility of such loss or damage, including any loss, not arising naturally, that is according to the usual course of things, from the relevant breach act or omission, whether or not such loss may reasonably be supposed to have been in the contemplation of the parties, at the time they entered the agreement, as the probable result of the relevant breach.
35. Subject to clause 35 and 36 below, the Company’s entire liability for all claims related to this Agreement will not exceed the amount of any actual direct damages incurred by you or any third party up the amounts paid by you for the Good that is the subject of the claim, regardless of the basis of the claim.
36. Clauses 34 and 35 above do not apply to damages a party is legally liable to pay that cannot be limited under applicable law.
37. The Company may sub-contract, assign, novate, transfer or otherwise dispose of any or all of its rights and/or obligations under this Agreement by written notice to the Company.
38. No variation of this Agreement is effective unless made in writing and signed by both parties. None of its terms can be varied, waived or released at law or in equity unless both parties agree in writing.
39. This Agreement (including any documents incorporated by reference, as amended from time to time) constitutes the entire agreement between the parties in respect of its subject matter.
40. This Agreement is governed by, and must be construed in accordance with, the laws of New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that State.
41. If there is any ambiguity, conflict or inconsistency between the documents comprising this Agreement, the following order of precedence shall apply: (a) the terms of this Agreement; (b) terms contained in any invoice; and (c) any other document incorporated by reference.
Appendix 1 to Standard Terms and Conditions
Additional warranties applicable to Steel-Flex® Road Edge Guide Posts and Lane-Flex® Reboundable Lane Dividers
1. Subject to clauses 23 – 26 of the Agreement, the Company warrants to you that:
1.1. each Steel-Flex ® Road Edge Guide Post (Guide Post):
1.1.1. is designed to comply with Australian Standard AS 1742.2:2009 and British and European Standard EN 12899-3:2008; and
1.1.2. when installed in accordance with the standards described in subsection 1.1.1 above, will retain 85% of colour, appearance and physical properties as outlined in the Company’s official published specifications for ten (10) years from the time delivery is taken to have occurred in accordance with clause 7 of the Agreement;
1.2 each Lane-Flex ® Reboundable Lane Divider (Lane Divider):
1.2.1. is designed to comply with British and European Standard EN 13422:2004/7.8, 7.9 and 7.10; and
1.2.2. when installed in accordance with the standards described in subsection 1.2.1 above, will retain 85% of colour, appearance and physical properties as outlined in the Company’s official published specifications for three (3) years from the time delivery is taken to have occurred in accordance with clause 7 of the Agreement.
2. You acknowledge and agree that the Guide Posts and Lane Dividers incorporate certain components (including reflective film and vinyl), which are manufactured and separately warranted by third parties (for example, 3M and Avery Dennison) (Third Party Components). The Company will, subject to clause 24 of the Agreement, endeavour to pass on the benefit of any such third party warranties to you for those Third Party Components, however the Third Party Components are otherwise provided ‘as-is’ and without warranties of any kind. The remedy for any breach of a warranty in relation to Third Party Components will be provided directly by the original manufacturer.