A.N Cooke Manufacturing Company Proprietary Limited T/A Staetite Fasteners – Terms & Conditions of Trade

Definitions

"Seller" means A.N Cooke Manufacturing Company Proprietary Limited T/A Staetite Fasteners, its successors and assigns or any person acting on behalf of and with the authority of A.N Cooke Manufacturing Company ProprietaryLimited T/A Staetite Fasteners.
"Customer" means the Customer and includes:
- any successors or permitted assigns;
- if the Customer consists of more than one person then both of them jointly and each of them severally; and
- the Guarantor(s) or any Customer.
"Guarantor" means that person (or persons) who agrees to be liable for the debts of the Customer on a principal debtor basis
"Goods" means all Goods supplied by the Seller to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by the Seller to the Customer.
"Services" means all Services supplied by the Seller to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
"Price" means the Price payable for the Goods as agreed between the Seller and the Customer in accordance with clause 4 of this contract.
"Instructions" means any communications from the Customer to the Seller made in writing, verbally or by implication in respect to the provision of Services or to the manufacture, sale or supply of Goods by the Seller.

The Competition and Consumer Act 2010 ("CCA") and Fair Trading Acts ("FTA")

Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the CCA or the FTA in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
Where the Customer buys Goods as a consumer these Terms and Conditions shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.

Acceptance

The receipt by the Seller of Instructions from the Customer constitutes acceptance of the Terms and Conditions contained herein.
Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for compliance with these Terms and Conditions and for payment.
Upon acceptance of these Terms and Conditions by the Customer the Terms and Conditions are binding and can only be amended with the written consent of the Seller.
The Customer shall give the Seller not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by the Seller as a result of the Customer’s failure to comply withthis clause.
Goods are supplied by the Seller only on the Terms and Conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that the Customer purports to place and order seeking to exclude these Terms and Conditions in full or in part.

Price and Payment

At the Seller's sole discretion the Price shall be either:
- as indicated on invoices provided by the Seller to the Customer in respect of Goods supplied; or
- the Seller's Price at the date of delivery of the Goods according to the Seller’s current pricelist; or
- the Seller's quoted Price (subject to clause 4.2) which shall be binding upon the Seller provided that the Customer shall accept the Seller’s quotation in writing within thirty (30) days.
The Seller reserves the right to change the Price in the event of a variation to the Seller’s quotation. Any variation from the specifications of the Goods (including, but not limited to, any variation as a result of increases to the Seller in the cost of materials) will be charged for on the basis of the Seller’s quotation and will be shown as variations on the invoice.
At the Seller’s sole discretion:
- payment shall be due on delivery of the Goods; or
- payment shall be due before delivery of the Goods.
Time for payment shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due thirty (30) days following the end of the month in which the invoice(s) and/or statement is posted to the Customer’s address or address for notices.
Payment will be made by cash, cheque, bank cheque, direct credit, or by any other method as agreed to between the Customer and the Seller.
GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
At the Seller’s sole discretion, the Customer may be entitled to receive a discount on the Price, provided the Seller receives full payment by the due date specified on the invoice. If the Customer does not pay the full invoice price by the due date specified on the invoice any discount previously offered by the Seller to the Customer is withdrawn and the Price is at the Seller’s standard price at the date of the original sale.

Delivery of the Goods

At the Seller’s sole discretion delivery of the Goods shall take place when:
- the Customer takes possession of the Goods at the Seller’s address; or
- the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by the Seller or the Seller’s nominated carrier); or
- the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.
At the Seller’s sole discretion the costs of delivery are:
- included in the Price; or
- in addition to the Price and, where applicable, charged to the Customer’s account.
The Customer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods when they are tendered for delivery then the Seller shall be entitled to charge a reasonable fee for storage of the Goods and redelivery.
Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
The Seller may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these Terms and Conditions.
The failure of the Seller to deliver shall not entitle either party to treat this contract as repudiated.
The Seller shall not be liable for any loss or damage whatsoever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of the Seller.

Risk

Notwithstanding the provisions of clause 7.1 hereof, the risk of loss or damage to the Goods passes to the Customer on delivery.
If any of the Goods are damaged or destroyed following delivery but prior to Title passing to the Customer, the Seller is entitled to receive all insurance proceeds payable for the Goods. The production of these Terms and Conditions by the Seller is sufficient evidence of the Seller’s rights to receive the insurance proceeds without the need for any person dealing with the Seller to make further enquiries.
Where the Customer expressly requests the Seller to leave Goods outside the Seller’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk and it shall be the Customer’s responsibility to ensure the Goods are insured adequately or at all.

Title

The Seller and Customer agree that Title in the Goods does not pass to the Customer until:
- the Customer has paid the Seller in full for the Goods; and
- the Customer has met all other obligations due by the Customer to the Seller in respect of all contracts between the Seller and the Customer
Receipt by the Seller of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Seller’s Title, ownership and rights in respect of the Goods shall continue.
It is further agreed that:
- the Customer shall keep the Goods separate and identifiable until the Seller has received payment of the Price in full and all other obligations of the Customer have been met; and
- until such time as ownership of the Goods shall pass from the Seller to the Customer the Seller may give notice in writing to the Customer to return the Goods or any part of them to the Seller. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
- the Seller shall have the right at any time to stop the Goods in transit whether or not delivery has been made; and
- if the Seller has given notice to the Customer set out in clause 7.3(b) and the Customer fails to return the Goods to the Seller then the Seller or the Seller’s agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods; and
- the Customer is only a bailee of the Goods and until such time as the Seller has received payment in full for the Goods the Customer shall hold on trust for the Seller any proceeds from the sale or disposal of the Goods, up to and including all amounts owed by the Customer to the Seller for the Goods; and
- the Customer shall not deal with the money of the Seller in any way which may be adverse to the Seller; and
- the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of the Seller; and
- the Seller can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
- until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that the Seller will be the owner of the products into which the Goods are converted.

Personal Property Securities Act 2009 ("PPSA")

In this clause:
- financing statement has the meaning given to it by the PPSA;
- financing change statement has the meaning given to it by the PPSA;
- security agreement means the security agreement under the PPSA created between the Customer and the Seller by these Terms and Conditions; and
- security interest has the meaning given to it by the PPSA.
Upon assenting to these Terms and Conditions in writing the Customer acknowledges and agrees that these Terms and Conditions:
- constitute a security agreement for the purposes of the PPSA; and
- create a security interest in:
  - all Goods previously supplied by the Seller to the Customer (if any);
  - all Goods that will be supplied in the future by the Seller to the Customer.
- The Customer undertakes to:
  - promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Seller may reasonably require to:
    - register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
    - register any other document required to be registered by the PPSA; or
    - correct a defect in a statement referred to in clause 8.3(a)(i) or 8.3(a)(ii);
  - indemnify, and upon demand reimburse, the Seller for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby;
  - not register a financing change statement in respect of a security interest without the prior written consent of the Seller;
  - 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 prior written consent of the Seller; and
  - immediately advise the Seller of any material change in its business practices of selling the Goods which would result in a change in the nature of proceeds derived from such sales.
The Seller and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these Terms and Conditions.
The Customer hereby waives its rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by the Seller, the Customer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
The Customer shall unconditionally ratify any actions taken by the Seller under clauses 8.3 to 8.5.

Security and Charge

Despite anything to the contrary contained herein or any other rights which the Seller may have howsoever:
- If the Customer (and if the Customer is more than one person then any of them) is the registered proprietor of any real estate or any other asset capable of being mortgaged or charged, the Customer thereby mortgages and/or charges in favour of the Seller all of his/her or their joint and/or several interest in the real estate and/or other asset to secure all amounts due to the Seller pursuant to these Terms and Conditions. The Customer acknowledges and agrees that the Seller (or the Seller’s nominee) shall be entitled to lodge a caveat over the Title to such real estate which caveat shall be withdrawn until all monies due to the Seller pursuant to these Terms and Conditions have been paid in full.
- should the Seller elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify the Seller from and against all the Seller’s costs and disbursements including legal costs on a solicitor and own client basis.
- the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint the Seller or the Seller’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 9.1.

Defects

The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify the Seller of any alleged defect, shortage in quantity, damage or failure to comply with any description or quote. If the Customer notifies the Seller accordingly, the Customer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which the Seller has agreed in writing that the Customer is entitled to reject, the Seller’s liability is limited to either (at the Seller’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Competition and Consumer Act 2010 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
Any claim by the Customer in respect of quality or quantity of the Goods supplied by the Seller does not entitle the Customer to fully or partially withhold payment of the invoice rendered by the Seller in respect of the Goods.

Returns

Returns will only be accepted provided that:
- the Customer has complied with the provisions of clause 10.1; and
- the Seller has agreed in writing to accept the return of the Goods; and
- the Goods are returned at the Customer’s cost within fourteen (14) days of the delivery date; and
- the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
The Seller may (at their sole discretion) accept the return of Goods for credit but this may incur a handling fee of up to ten percent (10%) of the value of the returned Goods plus any freight costs.
Non-stocklist items or Goods made to the Customer’s specifications cannot be returned by the Customer.
The Seller will not accept return of Goods which have not been stored or used in an appropriate manner.

Warranty

Subject to the conditions of warranty set out in clause 12.2 the Seller warrants that if any defect in any workmanship of the Seller becomes apparent and is reported to the Seller within twelve (12) months of the date of delivery (time being of the essence) then the Seller will either (at the Seller’s sole discretion) replace the Goods or remedy the defect.
The conditions applicable to the warranty given by clause 12.1 are:
- the warranty shall not cover any defect or damage which may be caused or partly caused by or arise through:
  - failure on the part of the Customer to properly maintain any Goods; or
  - failure on the part of the Customer to follow any instructions or guidelines provided by the Seller; or
  - any use of any Goods otherwise than for any application specified on a quote or order form; or
  - the continued use of any Goods after any defect becomes apparent or would have become apparent to a reasonably prudent operator or user; or
  - fair wear and tear, any accident or act of God.
- the warranty shall cease and the Seller shall thereafter in no circumstances be liable under the terms of the warranty if the workmanship is repaired, altered or overhauled without the Seller’s consent
- in respect of all claims the Seller shall not be liable to compensate the Customer for any delay in either replacing or remedying the workmanship or in properly assessing the Customer’s claim.
For Goods not manufactured by the Seller, the warranty shall be the current warranty provided by the manufacturer of the Goods. The Seller shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.

Export Contracts

FOB (Free On Board) means the Seller fulfils their obligation to deliver when the Goods have passed over the ship’s rail at the named port of shipment. This means that the Customer has to bear all costs and risks to loss of or damage to the Goods from that point. The Seller is required to clear the Goods for export.
CIF (Cost, Insurance and Freight) means the Seller is obligated to pay the costs and freight necessary to bring the Goods to the named port of destination, and is further obligated to procure and pay for marine insurance against the loss Customer’s risk of loss or damage to the Goods during carriage. The Seller is required to clear the Goods for export.
In the event that the Goods are exported from Australia, delivery of the Goods may be subject to either FOB or CIF contract.
In the event of a FOB contract the following shall apply;
- the Goods shall be delivered to the Customer by way of delivery to and placement upon the Customer’s nominated form of transport on the delivery date. The Seller shall promptly notify the Customer that the Goods have been delivered aboard. Risk in the Goods shall pass to the Customer upon such delivery being effected. The Seller shall promptly provide the Customer with a clean shipped bill of lading and an invoice in respect of the Goods.
- the Customer shall reserve the necessary space on its nominated form of transport and give the Seller due notice of the location (including, if necessary, loading berth) of that transport. The Customer shall bear any additional costs incurred by the Seller and/or Customer as a result of the Customer’s nominated form of transport being unavailable to load the Goods on the delivery date.
In the event of a CIF contract the following shall apply:
- the Goods shall be delivered to the Customer by delivery to and placement upon the Customer’s nominated form of transport on or before the delivery date. The Seller shall procure a contract of carriage and insure the Goods from dispatch until delivery on terms current in the trade for the benefit of the Customer. The Goods shall be at the risk of the Customer as they are loaded on board. The Seller shall promptly tender to the Customer a clean shipped bill of lading, the insurance policy and an invoice in respect of the Goods.
- the Customer shall accept the documents tendered by the Seller if they correspond to this contract and take delivery of the Goods at the port of destination and bear all other costs and charges arising out of shipment of the Goods to the port of destination.

Intellectual Property

The Customer warrants that it owns all intellectual property rights in all designs or instructions to the Seller and will not cause the Seller to infringe any patent, registered design, trademark or other intellectual property rights of any other party in the execution of the Customer’s order and the Customer agrees to indemnify the Seller against any action taken by a third party against the Seller in respect of any such infringement.

Default and Consequences of Default

Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Seller’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by the Seller.
If the Customer defaults in payment of any invoice when due, the Customer shall indemnify the Seller from and against all costs and disbursements incurred by the Seller in pursuing the debt including legal costs on a solicitor and own client basis and the Seller’s collection agency costs.
Without prejudice to any other remedies the Seller may have, if at any time the Customer is in breach of any obligation (including those relating to payment) the Seller may suspend or terminate the supply of Goods to the Customer and any of its other obligations under these Terms and Conditions. The Seller will not be liable to the Customer for any loss or damage the Customer suffers because the Seller has exercised its rights under this clause.
If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied by the Seller for administration fees which sum shall thereupon be immediately due and payable in addition to all other amounts due and payable by the Customer to the Seller.
Without prejudice to the Seller’s other remedies at law the Seller shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to the Seller shall, whether or not due for payment, become immediately payable in the event that:
- any money payable to the Seller becomes overdue, or in the Seller’s opinion the Customer will be unable to meet its payments as they fall due; or
- the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
- a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.

Cancellation

The Seller may cancel any contract to which these Terms and Conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Seller shall repay to the Customer any sums paid on account of the Price. The Seller shall not be liable for any loss or damage whatsoever arising from such cancellation.
In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by the Seller (including, but not limited to, any loss of profits) up to the time of cancellation.
Cancellation of orders for Goods made to the Customer’s specifications or non-stocklist items will definitely not be accepted, once production has commenced.

Privacy Act 1988

The Customer hereby authorises the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Customer in relation to credit provided by the Seller.
The Customer agrees that the Seller may exchange information about the Customer with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
- to assess an application by the Customer; and/or
- to notify other credit providers of a default by the Customer; and/or
- to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
- to assess the creditworthiness of the Customer. The Customer understands that the information exchanged can include anything about the Customer’s creditworthiness, credit standing, credit history or credit capacity that credit providers are allowed to exchange under the Privacy Act 1988.
The Customer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
The Customer agrees that personal credit information provided may be used and retained by the Seller for the following purposes (and for other purposes as shall be agreed between the Customer and Seller or required by law from time to time):
- the provision of Goods; and/or
- the marketing of Goods by the Seller, its agents or distributors; and/or
- analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to the provision of Goods; and/or
- processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Customer; and/or
- enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
The Seller may give information about the Customer to a credit reporting agency for the following purposes:
- to obtain a consumer credit report about the Customer;
- allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
The information given to the credit reporting agency may include:
- personal particulars (the Customer’s name, sex, address, previous addresses, date of birth, name of employer and driver’s licence number;
- details concerning the Customer’s application for credit or commercial credit and the amount requested;
- advice that the Seller is a current credit provider to the Customer;
- advice of any overdue accounts, loan repayments, and/or any outstanding monies owing which are overdue by more than sixty (60) days, and for which debt collection action has been started;
- that the Customer’s overdue accounts, loan repayments and/or any outstanding monies are no longer overdue in respect of any default that has been listed;
- information that, in the opinion of the Seller, the Customer has committed a serious credit infringement (that is, fraudulently or shown an intention not to comply with the Customers credit obligations);
- advice that cheques drawn by the Customer for one hundred dollars ($100) or more, have been dishonoured more than once;
- that credit provided to the Customer by the Seller has been paid or otherwise discharged.

General

If any provision of these Terms and Conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
If any provisions of these Terms and Conditions are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.
These Terms and Conditions and any contract to which they apply are governed by the laws of Victoria and are subject to the exclusive jurisdiction of the courts of Victoria, Australia.
The Seller shall be under no liability whatsoever to the Customer for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by the Seller of these Terms and Conditions.
In the event of any breach of this contract by the Seller the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price.
The Customer shall not be entitled to set off against, or deduct from the Price, any sums owed or claimed to be owed to the Customer by the Seller nor to withhold payment of any invoice because part of that invoice is in dispute.
The Seller may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
The Customer agrees that the Seller may review these Terms and Conditions at any time. If, following any such review, there is to be any change to these Terms and Conditions, then that change will take effect from the date on which the Seller notifies the Customer of such change. The Customer shall be under no obligation to accept such changes except where the Seller supplies further Goods to the Customer and the Customer accepts such Goods.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
The failure by the Seller to enforce any provision of these Terms and Conditions shall not be treated as a waiver of that provision, nor shall it affect the Seller’s right to subsequently enforce that provision.