1.1 The words:
(a) “Actech” means Actech International Pty Ltd ACN 053 771 225 / ABN 66 578 680 856;
(b) “Agreement” means the agreement between Actech and the Customer for the supply of Goods by Actech to the Customer and shall be constituted in its entirety by these Terms and Conditions of Sale and, if any, Actech’s quotation and the Credit Application and Agreement;
(c) “Credit Arrangement” means the credit terms available to the Customer pursuant to an application by the Customer for the provision of Goods on credit submitted to Actech using Actech’s standard credit application form and accepted in writing by Actech (referred to as the Confidential Credit Application and Agreement);
(d) “Customer” means the party to whom Actech has agreed to supply Goods pursuant to the Agreement;
(e) “Delivery” means the handing over the Goods from Actech to the Customer either in person or via transport company at the Customer’s nominated address;
(f) “Goods” means the goods and/or services agreed to be supplied by Actech and purchased by the Customer pursuant to the Agreement;
(g) “GST” has the meaning given by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) or, if that Act does not exist means any Act imposing or relating to the imposition or administration of a goods and services tax in Australia and any regulation made under that Act;
(h) “Guarantee” means the guarantee document provided by the Customer or the Customer’s directors, shareholders or principals to Actech to guarantee the performance of the Agreement by the Customer;
(i) “Proprietary Information” means any and all information and intellectual property relating to the Goods or the installation or operation of the Goods including but not limited to patents, designs, drawings, instruction booklets, specifications, circuit drawings, componentry, trade secrets, trade marks and copyright in such information and intellectual property;
(j) “Purchase Order” means the written or oral purchase order by the Customer to Actech for the supply of the Goods;
2.1 Subject to the clause immediately below, quotations from Actech are valid for a period of 30 days from the date of issue or as otherwise specified in the quotation. Prices given in any quotation by Actech are applicable to that quotation only, and will not apply in any other instances. A quotation from Actech is not an offer to sell.
2.2 In order to purchase the Goods, the Customer must place with Actech a Purchase Order setting out an order number, Actech’s quotation number (if applicable), full description of the Goods to be purchased, the delivery date, delivery point and any other information required by Actech. The Purchase Order may be accepted or rejected by Actech at Actech’s sole discretion.
2.3 For an order less than a minimum value, as determined by Actech from time to time, Actech reserves the right either not to accept an order or to charge the Customer a handling fee / surcharge.
2.4 A contract shall be formed by and upon Actech accepting from the Customer a Purchase Order pursuant to the clauses immediately above and each contract shall be governed by the Agreement.
2.5 The Agreement shall take precedence over any other representations, agreements, arrangements or understandings relating to the Goods and any matters in connection with the Goods.
2.6 Any conditions or terms of purchase submitted by the Customer deviating from or inconsistent with the Agreement will not bind Actech, notwithstanding any statement by the Customer in its Purchase Order that its terms and conditions prevail over the Agreement.
2.7 Where the Goods to be supplied contain raw materials, the price and availability of which is unpredictable (eg PVC, copper, steel), and there is a lack of available such raw material either to enable Actech to supply the Goods or to supply the Goods at the prices stated in the Purchase Order, Actech may, at its sole option:
a) expend additional time to make reasonable efforts to attempt to locate raw material, and if raw material cannot be located, serve notice of immediate termination of the Purchase Order under the Agreement; or
b) endeavour to reach agreement with the Customer on an increase in the purchase price for the Goods, and if agreement cannot be reached, serve notice of immediate termination of the Purchase Order under the Agreement; or
c) serve notice of immediate termination of the Purchase Order under the Agreement.
d) In neither case shall Actech have any liability to the Customer as a result of such termination, but the Customer shall pay to Actech the purchase price of Goods actually supplied or to be supplied under the Purchase Order under the Agreement.
3.1 Unless otherwise agreed in writing, Actech accepts Purchase Orders subject to the condition that the Customer agrees to pay the purchase price appearing on Actech’s sales order list for those Goods current as at the date that Actech accepts the Purchase Order.
3.2 The total purchase price, unless otherwise stated in the Purchase Order, may or may not include GST but does not include any delivery charges, packaging, freight, assembly costs, installation costs, all of which may be added to the purchase price or otherwise will be paid by the Customer or reimbursed by the Customer to Actech, as Actech may elect.
3.3 Payment of the purchase price must be made in full within 30 days from the end of month after the date of the invoice or otherwise in accordance with the Customer’s Credit Arrangement.
3.4 The Customer must not set off any money owing or alleged to be owing by Actech against money due by the Customer to Actech.
3.5 If the Customer does not pay money by the due date for payment, without prejudice to any other rights which it may have against the Customer, Actech may require the Customer to pay on demand interest at the Westpac Indicator Lending Rate effective from time to time plus 4% per annum calculated from the due date on daily balances of amounts unpaid.
3.6 If the Customer does not pay money by the due date, the Customer will indemnify Actech against and agree to reimburse it for any expenses it may reasonably incur in recovering or attempting to recover payment from me of the amounts which may from time to time be overdue.
4 Cancellation of orders
4.1 The Customer may not alter or cancel a Purchase Order without Actech’s prior written consent. If Actech agrees to alter or cancel the Purchase Order, the Customer will indemnify Actech against any loss, damage and expense incurred by Actech in relation to the alteration or cancellation of that Purchase Order, including the cost of return freight, return shipping to factory of origin, items purchased from third parties for inclusion in the Goods and all labour and engineering costs incurred by Actech in the execution or part execution of the Goods and including compensation payable to any of Actech’s suppliers and loss of profit.
5.1 The Customer is deemed to have accepted the Goods unless it makes a claim in accordance with the clauses immediately below.
5.2 The Customer may reject any Goods that are wrongly supplied or oversupplied by notifying Actech of the claim and providing full particulars of the claim in writing within 7 days of receipt of those Goods. Actech may dispute any such claim.
5.3 The Customer may return any Goods to Actech for credit if all of the following is complied with:
a) the Goods are returned to Actech’s premises by prior arrangement and with Actech’s written approval within 7 days of delivery, at no cost to Actech, unless delivered as the result of an administrative error by Actech, in which case Actech will bear the cost of return;
b) the Goods are accompanied by a dispatch note stating Actech’s original invoice number and reason for return; and
c) the Goods are returned in an unsoiled, undamaged and resaleable condition in their original packing.
5.4 The Customer must not return any Goods to Actech unless it has complied with the clause immediately above and has done all things necessary to permit Actech to examine the Goods to Actech’s satisfaction within that period.
5.5 If Actech accepts the return of the Goods that have been ordered, Actech may charge the Customer fifteen per cent (15%) of the invoice price as a handling/restocking fee with additional freight costs and risk remaining with the Customer.
6 Delivery and storage
6.1 All quoted delivery or consignment dates are estimates only. Actech is not obliged to meet such dates and will not be liable to the Customer by reason of delays caused by any reason whatsoever.
6.2 Actech is deemed to have delivered the Goods when the Goods are made available to the Customer for physical collection by or on behalf of the Customer at the Customer’s nominated delivery point (“Delivery”). Any unloading or loading shall be the Customer’s responsibility, unless Actech otherwise agrees in writing.
6.3 Actech may deliver the Goods by instalments (where, in Actech’s opinion, this is reasonable) and issue interim invoices to the Customer.
6.4 Without limiting any other provision of the Agreement, failure by the Customer to pay any instalment, or any other amount when due, will entitle Actech to withhold or delay delivery of any remaining Goods ordered.
6.5 If the Customer is unable to receive the Goods at the Customer’s nominated delivery point on the delivery day, Actech may (at its option and without limiting its other rights and remedies) arrange suitable storage of the Goods, whether at its premises or elsewhere, and the Customer must pay or reimburse all costs and expenses of storage, insurance, demurrage, handling and other charges associated with such storage. Notwithstanding the Customer’s inability to receive the Goods, Delivery is deemed to have occurred.
7.1 Title to the Goods shall remain with Actech until all monies owing by the Customer to Actech have been paid in full (whether such monies are payable under a specific contract or on any other account). The Customer hereby consents to Actech registering its rights pursuant to the Personal Property Securities Act 2009 (Cth) according to Section 8 of this Agreement.
7.2 Until such time as the Customer has paid in full all monies owing to Actech, the Customer shall:
a) store the Goods separately and mark them so that they are clearly and easily identifiable as Actech’s property and, if Actech requests, inform Actech of the location of the Goods;
b) hold the Goods as bailee for Actech, subject to the Customer’s right to deal with the Goods in the ordinary course of the Customer’s business (“Bailment”);
c) indemnify Actech against any claim arising out of the possession, use or disposal of the Goods by the Customer or repossession or attempted repossession by Actech.
7.3 If:
a) a payment is not made in accordance with the Agreement;
b) the Customer commits any other breach of the Agreement;
c) the Customer becomes bankrupt, has an administrator, a receiver or a receiver and manager appointed, goes into liquidation (whether voluntarily or otherwise), or is wound up, dissolved or declared insolvent,
d) then Actech may at any time, without notice to the Customer and without prejudice to any other rights that it may have against the Customer:
i. terminate the Agreement and the Bailment;
ii. suspend some or all its obligations to the Customer under the Agreement; and/or
iii. enter upon any premises owned or occupied by the Customer where Actech reasonably believes the Goods may be stored and repossess the Goods without being liable for any damages caused.
7.4 If the Customer sells the Goods before payment in full to Actech, or uses the Goods in a manufacturing or construction process of its own or some third party, the Customer holds the proceeds on trust for Actech in respect of those Goods, and must keep such proceeds in a separate account until the liability to Actech is discharged and must immediately pay that amount to Actech.
7.5 The risk in the Goods passes to the Customer at the time of Delivery.
8.1 Defined terms in this clause have the same meaning as given to them in the PPSA.
8.2 Actech and Customer acknowledge that these Terms and Conditions constitute a Security Agreement and gives rise to a Purchase Money Security Interest (“PMSI”) in favour of Actech over the Goods supplied or to be supplied to the Customer as Grantor pursuant to the Terms and Conditions, and over the Proceeds (including any sale monies or an account for such monies and insurance monies).
8.3 The Goods supplied or to be supplied under these Terms and Conditions fall with the PPSA Classification of “Other Goods” acquired by the Customer pursuant to these Terms and Conditions.
8.4 Actech and Customer acknowledges that Actech as Secured Party, is entitled to register its interest in the Goods supplied or to be supplied to the Customer as Grantor under the Terms and Conditions on the PPSA Register as Collateral.
8.5 To the extent permissible at law, the Customer:
a) Waives its rights to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer, as Grantor to Actech;
b) Agrees to indemnify Actech on demand for all costs and expenses, including legal costs and expenses on a solicitor/client basis, associated with the:
i. Registration or amendment or discharge of any Financing Statement registered by or on behalf of Actech; and
ii. Enforcement or attempted enforcement of any Security Interest granted to Actech by the Customer.
c) Agrees that nothing in sections 103 to 143 of the PPSA will apply to the Terms and Conditions or the Security under the Terms and Conditions;
d) Agrees to waive its rights to do any of the following under the PPSA:
i. Receive notice of removal of an Accession under section 95;
ii. Receive notice of an intention to seize Collateral under section 123;
iii. Object to the purchase of the Collateral by the Secured Party under section 129;
iv. Receive notice of disposal of Collateral under section 130;
v. Receive a Statement of Account if there is no disposal under section 130(4);
vi. Receive a Statement of Account under section 132(3)(d) following a disposal showing amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged;
vii. Receive notice of retention of collateral under section 135;
viii. Redeem the collateral under section 142; and
ix. Reinstate the security agreement under section 143.
9.1 To secure payment of all monies which may become payable by the Customer to Actech, the Customer hereby charged with the due payment of those monies all of the Customer’s interests in real property, both present and future (“Property”) and the Customer consents to Actech lodging a caveat or caveats noting its interests hereunder. If called upon to do so, the Customer will execute and deliver to Actech a charge in registrable form giving effect to the agreement recorded in this clause.
9.2 Customer acknowledges that in order to give affect to Clause 8 and 9 above, Actech may registers its interest in the Goods or the Property on such registers as are provided for at law.
10.1 The Customer must keep the Goods insured against all risks for Goods of that kind from the time the risk in the Goods passes to the Customer until the time that title to the Goods passes to the Customer. The Customer holds the proceeds of that insurance on trust for Actech up to the amount it owes Actech in respect of those Goods, and must keep such proceeds in a separate account until the liability to Actech is discharged and must immediately pay that amount to Actech.
11.1 To the extent permitted by law, Actech makes no warranties or representations to the Customer beyond the minimum threshold provided in the Australian Consumer Law (“ACL”), Competition and Consumer Act 2010 (Cth).
11.2 Where the goods are not manufactured by Actech, and Actech acts as distributor/reseller, Actech will not provide any warranty directly. Actech will use its best endeavours to obtain for the Customer the benefit of any applicable manufacturer’s warranty in respect of such goods not manufactured by Actech.
11.3 Actech warrants the Goods to be free from defects in workmanship and materials under normal use and service for a variable period of time according to the Goods supplied from the Delivery (“Warranty Period”). This warranty does not cover costs of recovery of the Goods from the site or damage, fault, failure or malfunction due to external causes including accident, abuse, misuse, mechanical or electrical overload, abrasion, corrosion, incorrect installation, failure to perform required preventative maintenance or normal wear and tear.
11.4 Actech will investigate and determine, in its discretion, whether the goods and their components are defective. While the goods are in the custody of Actech for investigation or repair, they will be at the risk of the Customer and Actech will not be liable for any damage to the goods.
11.5 During the Warranty Period, to the extent permitted by law, the Customer’s sole remedy with respect to breach of warranties set out in the clause immediately above will be to repair or replace (as Actech may elect) any such defective Goods at Actech’s expense. The replacement or repaired Goods shall be covered by the unexpired portion of the Warranty Period in respect of the original Goods or for a period of 90 days, whichever is the greater.
11.6 For equipment forming part of the Goods, which equipment is not manufactured by Actech, the original manufacturer’s warranty will apply. Actech’s liability for such equipment shall not exceed the liability of the manufacturer.
11.7 In respect of Goods that are not ordinarily acquired for personal, domestic or household use or consumption, the liability of Actech for a breach of any condition or warranty implied by law is limited at Actech’s option to the repair the Goods or supply replacement Goods.
11.8 Actech’s liability under the Agreement will be reduced by the amount of any contributory loss or damage to the extent caused by the Customer’s act or omission.
11.9 The Customer acknowledges and agrees that, to the extent permitted by law, Actech has no liability in contract, tort (including negligence or breach of statutory duty), by statute or otherwise for loss or damage (whether direct or indirect) of profits, opportunity, revenue, goodwill, bargain, production, contracts, business or anticipated savings, corruption or destruction of data or for any indirect, special or consequential loss or damage whatsoever.
11.10 Actech’s total liability under any contract and the Agreement shall not exceed the total dollar amount of the Goods purchased by the Customer under each contract. All costs, including cartage and installation, must be paid by the Customer.
12.1 The Customer acknowledges that all Proprietary Information and all right, title and interest therein are the sole property of or licensed by Actech and the Customer shall gain no right, title or interest in the Proprietary Information whatsoever. The Customer specifically acknowledges Actech’s exclusive rights to ownership of any modification, translation or adaptation of the Proprietary Information and any other improvement or development based thereon, whether developed, supplied, installed or paid for by or on behalf of the Customer or any buyer of the Customer or otherwise.
12.2 The Customer must not and must not permit any person reasonably within its control nor procure any person to modify, copy, clone or reverse engineer the Goods, or copy, modify or decompile any of Actech’s documentation relating to the Goods.
13.1 The Goods supplied are intended for use only in Australia, unless Actech otherwise agrees. If the Customer exports or re-exports the Goods, it is the Customer’s responsibility to ensure that the Goods and the use to which they are put comply with the laws of the destination.
14.1 The fact that Actech fails to do, or delays in doing, something it is entitled to do under the Agreement, does not amount to a waiver of its right to do it. Actech must agree in writing to any waiver.
14.2 If a clause or part of a clause can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from the Agreement, but the rest of the Agreement is not affected.
14.3 Actech shall not be liable for any failure to fulfil or any delay in fulfilling any obligation arising under the Agreement if the failure or delay has been caused directly or indirectly by any act of God, war or other civil commotion, strikes, lockouts, stoppages and restraints of labour, breakdown of machinery, inability to obtain raw materials or fuel, fire or explosion, any government action or any other cause beyond Actech’s reasonable control and not as a consequence of Actech’s negligence.
14.4 Any notice to be given to a party under the Agreement must be in writing and must be sent by post, facsimile or email to the address of that party shown in the quotation, Purchase Order or Sales order acknowledgment. Notice is deemed to have been given at the time it would have been received in the normal course of post if sent by post, or if otherwise given at the time it was actually received.
14.5 The Agreement is governed by and must be interpreted in accordance with the laws of the State of Victoria where Actech’s head office is based. The Customer unconditionally submits to the jurisdiction of the courts of the State of Victoria determined in accordance with this clause.
14.6 Where there is more than one Customer then the liability of each shall be joint and several.
14.7 The rights and remedies provided in the Agreement will not affect any other rights or remedies available to Actech.
14.8 The Customer shall not assign this Agreement without Actech’s prior written consent.
