The use of this website is subject to the following terms and conditions:
On accessing the website on this and on each subsequent occasion you will be deemed to accept all of the terms and conditions that apply to its use. Tsubakimoto Chain Co. reserves the right to alter these terms and conditions at any time and it is your obligation to check if changes have been made. Your use of this website after changes are posted on-line shall constitute acceptance of the new terms and conditions.
You may use, copy, reproduce and print materials contained on our website for your internal commercial purposes. You may not, however, reproduce material obtained from this website on your own website without Tsubaki Australia Pty Limited.'s prior written consent.
Tsubaki Australia Pty Limited gives no warranties, conditions, guarantees or representations, express or implied, as to:
the completeness or accuracy of the information contained on this website or any website to which it is linked in particular goods supplied may vary in some detail from those which are illustrated;
the content of any advertisement and illustrations included on the Tsubaki Australia Pty Limited website
The Tsubakimoto Chain Co. products found on this website can be supplied by Tsubaki Australia Pty Limited or its representatives around the world on the standard terms and conditions of sale of the company or representative from which the products are purchased.
Tsubaki Australia Pty Limited reserves the right to make modifications to the design and dimensions of the products published on this website to meet manufacturing conditions and developments in designs and materials.
Tsubaki Australia Pty Limited does not warrant that this website will be available without interruption, virus or bug free.
Tsubaki Australia Pty Limited shall not be liable for any damages, including without limitation, indirect or consequential damages howsoever arising out of your use of this website or in respect of any of your actions or omissions taken in reliance of any of the advice or information contained on this website or any website to which this website is linked.
This website contains hypertext links to websites operated by parties other than Tsubaki Australia Pty Limited or its associated companies. Tsubaki Australia Pty Limited does not control such websites and is not responsible for their content. Tsubaki Australia Pty Limited's inclusion of hypertext links to such websites does not imply any endorsement of the material contained on the website or of the owners.
All rights, including copyright in the content of these web pages and any photographs displayed on this website from time to time are owned or controlled for these purposes by Tsubaki Australia Pty Limited
All Tsubaki Australia Pty Limited's trade marks, names and logos are the proprietary marks of Tsubaki Australia Pty Limited or its associated companies. Marks identifying third parties are owned or licensed by those third parties or their associated companies. Nothing in these terms and conditions in any way confers on you any license or right under any trade marks, names or logos of Tsubakimoto Chain Co. or any third party.
1. In these terms and conditions:
(a) 'Buyer' means the party identified as the 'Buyer' in the Commercial Account Application which places the order or identified in the order itself;
(b) 'Commercial Account Application' means the application form completed by the Buyer to open a commercial account with the Seller;
(c) 'contract' means the agreement by the Seller to supply goods to the Buyer upon the terms stated in the order read together with these terms and conditions;
(d) 'goods' means those products agreed to be sold and purchased pursuant to an accepted order and/or described in the invoice;
(e) 'Intellectual Property' means the Seller's business names, trade names, trade marks, product names, copyright, patents, designs, industrial processes, trade secrets, know how and other intellectual property rights and any development in such intellectual property rights.
(f) 'order' means an order for goods made by the Buyer which is either in the form of an acceptance of the Seller's quotation or a request to the Seller to purchase goods under specified terms where there is no quotation;
(g) 'PPSA' means the Personal Property Securities Act 2009 as amended; and
(h) 'Seller' means Tsubaki Australia Pty Limited (ABN 45 003 232 639).
2. These conditions of sale apply to all transactions between the Buyer and the Seller, including all quotations, offers, contracts, orders or sales.
3. These conditions (which will only be waived or varied in writing signed by the Seller) will prevail over all conditions of the transaction to the extent of any inconsistency.
4. A contract will be formed by and upon the Seller accepting an order. The Seller may accept an order by written confirmation or notifying the Buyer of delivery of the goods, whichever occurs first. The Seller may refuse to accept an order if it is not made in writing.
5. The Seller must sell and deliver the goods in accordance with the terms of the contract.
6. The Seller may impose minimum quantity order conditions on the Buyer before it agrees to supply the goods. In the case of non-standard orders, the Seller will not accept an order unless the order is in writing, it complies with the minimum quantity order condition set by the Seller, and if required by the Seller, payment of a deposit, a sample of the non-standard good and/or drawing has been approved by us and the end user of the goods or its representative.
7. The Buyer must buy and take delivery of the goods, and pay for the price of the goods, in accordance with the terms of the contract.
8. While the Seller endeavours to keep delivery dates, any delay of delivery, for any reason whatsoever (including without limitation the withholding of the goods by the Seller until all payments demanded under the terms and conditions of this Agreement have been paid to the satisfaction of the Seller), will not entitle the Buyer to claim for any consequential loss or damage or to cancel, rescind or terminate the contract.
9. Should circumstances beyond the control of the Seller prevent or hinder delivery, the Seller will be free from any obligation to deliver goods while such circumstances continue. For as long as such circumstances exist, the Seller may, at its option, cancel, rescind or terminate all or any part of the contract or keep the contract on foot until such circumstances have ceased. Such circumstances beyond the control of the Seller include, but are not limited to: strikes, lockouts, rebellions; fire; acts of God; shortages of raw materials; virus outbreaks or pandemics, Government decrees, proclamations or orders; transport difficulties; and failures or malfunctions of computers or other information technology systems.
10. Delivery of the goods will be taken to have occurred when the goods leave the Seller's premises or, where the goods are being consigned direct from a third party, when the goods leave that third party's premises. The Seller can arrange delivery of the goods to the Buyer upon request.
11. The Buyer is responsible for insuring all goods in transit. All freight and handling charges are for the account of the Buyer unless otherwise agreed. The Buyer acknowledges that the freight and delivery charges, and insurance costs (if insurance has been arranged by the Seller on behalf of the Buyer) may vary from time to time.
12. Deliveries by instalments may be agreed between the Buyer and Seller or at the requirement of the Seller.
13. Where the Buyer fails to accept instalment deliveries in accordance with the terms of the contract:
(a) the Seller may store the goods at the risk and cost of the Buyer; and
(b) the Buyer will be deemed to be in default of payment for the delivery.
14. Where goods are ordered for delivery by instalments, each instalment delivery is deemed to be a separate order and a separate contract performed by the Seller upon delivery of that instalment.
15. Risk in each order and to the goods will pass to the Buyer upon delivery of that order to the Buyer or upon collection of that order by the Buyer's agent or courier as the case may be. However, the Seller retains the title in the goods and in each order until and may retain possession of the goods that are in the control of the Seller unless the Seller receives full payment for the goods and any other payments required under these terms and conditions from the Buyer to the Seller's satisfaction.
16. Subject to clause 13, where, in accordance with these terms, the Seller accepts return of any goods, risk in those goods will revert to the Seller upon delivery of the goods to the Seller or upon collection of the goods by the Seller's agent or courier as the case may be.
17. Any property of the Buyer's under the Seller's custody or control will be entirely at the Buyer's risk as regards loss or damage caused to the property or by it.
18. The price of goods will be the prices agreed under the contract. The Seller sets the price by reference to market circumstances prevailing at the time of contract and may vary the price on the basis of such factors such as manufacturer pricing, labour costs, costs of transport and insurance, and exchange rates. Prices contained in a quotation provided by the Seller may vary prior to the acceptance of an order, especially so if the quotation is greater than 30 days old.
19. Unless otherwise agreed in writing, the prices do not include goods and services tax, sales tax, custom duties and other similar taxes and duties imposed on, or in respect of the supply of goods. The Buyer must pay all of these taxes.
20. The Buyer must be ready, willing and able to take and accept physical delivery of the goods at the Buyer's premises or other location nominated by the Buyer, at and from the time the goods are available for delivery.
21. If the Buyer does not take and accept physical delivery of the goods at the Buyer's premises or other location nominated by the Buyer, at and from the time the goods are available for delivery, the Seller may immediately arrange for storage of the goods, and the Buyer must reimburse the Seller for all costs, charges, expenses and fees (Storage Costs) incurred by the Seller in any way connected with or related to storing the goods at a location in Australia. The Storage Costs are payable by the Buyer on demand from the Seller. The Seller will issue an invoice to the Buyer for the purpose of it receiving reimbursement of the Storage Costs.
22. Unless the Seller has agreed to specific terms of credit in writing with the Buyer, the Buyer must pay the full price of each order to the Seller at the later of the date of acceptance by the Seller of an order or as otherwise stipulated by the Seller. The Seller shall be entitled to issue the invoice for an order immediately upon the date of acceptance by the Seller of an order irrespective of whether or not the Buyer later refuses to take and accept delivery of the goods.
23. All invoices issued to the Buyer under these terms and conditions must be paid by the Buyer COD (Cash on delivery) unless expressly stated otherwise by the Seller. The Buyer must pay the Seller on the earlier of the due date for payment as stipulated by the Seller or the date of dispatch of goods from the Seller's premises.
24. If the Buyer does not make full payment on or before the due date:
(a) the Seller may institute legal proceedings to recover the unpaid amounts. The Buyer must indemnify the Seller against all costs of recovery, including without limitation, any legal costs and disbursements on a full indemnity basis;
(b) the Seller may at its sole and absolute discretion, refuse to make arrangements, or refuse to undertake the processing of a transaction, for the purpose of the issue of a manufacturer's warranty for the goods to the Buyer. In such a case, the goods may not be covered by a manufacturer's warranty;
(c) the Buyer must pay a late payment charge equivalent to the greater of 20% per annum of the unpaid amount and accruing on a daily basis from the date the invoice is required to be paid until the date of payment of the overdue amount, or such other late payment charge that may be expressly stipulated by the Seller from time to time, or prior to the acceptance of the order; and
(d) the Seller may without demand retake possession of the goods and may without notice sell the goods on such terms and in such manner as it may determine and will be entitled to deduct all expenses incurred. For the purpose of recovering possession, and without limiting the generality of the foregoing the Buyer hereby irrevocably authorises and licences the Seller and its servants and agents to enter upon any premises where any goods may be stored and to take possession of the goods.
25. The Buyer undertakes to provide the Seller with audited financial statements when requested by the Seller from time to time if it wishes to receive the benefit of credit terms under the contract.
26. The Seller may at any time at its sole and absolute discretion and without prior notice to the Buyer, terminate or withdraw any credit terms for a buyer, in which case the Buyer must pay cash on acceptance by the Seller of an order.
27. The Seller may require at any time, security from the Buyer before it agrees to extend credit to the Buyer under any contract. The form and type of the security will be determined by the Seller and will depend on the prevailing circumstances.
28. If there is a change in ownership or control of the Buyer, the Buyer must immediately notify the Seller in writing. Any breach of this provision, will entitle the Seller to immediately cancel any contract with the Buyer.
29. The Seller may, at its option and without prejudice to any of its rights, either suspend further deliveries, require payment in advance or terminate any contract by written notice to the Buyer where the Buyer:
(a) defaults on any payment due under a contract;
(b) is unable to meet its debts when they fall due, in which case the Seller may also have a third person attempt a levy execution against the goods;
(c) being a natural person, commits an act of bankruptcy;
(d) being a corporation, is subject to:
(i) a petition being presented, an order being made or a meeting being called to consider a resolution for the Buyer to be wound up, deregistered or dissolved;
(ii) a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Buyer's property and undertaking;
(iii) the entering of a scheme of arrangement (other than for the purpose of restructuring); or
(iv) any assignment for the benefit of creditors. ("Event of Default')
30. If the Seller cancels the contract, the Seller will cease to have any further obligations to the Buyer under the contract, the price for any goods delivered under the contract will become immediately due and payable despite any credit terms agreed prior. It is acknowledged that cancellation, shall not prejudice any other rights the Seller may have against the Buyer arising from or under, the contract.
31. The Buyer may not cancel the order after the Seller has accepted the order, unless the Seller has agreed to the cancellation in writing. Any agreement to a cancellation of an order will be at the sole and absolute discretion of the Seller, and for the avoidance of doubt, the Seller will not allow a cancellation where the goods are in transit from the manufacturer.
32. Notwithstanding delivery of the goods to the Buyer, until the Buyer has effected full payment for the goods and any other goods previously supplied by the Seller:
(a) legal title to the goods will remain with the Seller;
(b) the risk in the goods will pass to the Buyer on delivery to the Buyer or its agent;
(c) the relationship between the Seller and the Buyer will be fiduciary;
(d) the Buyer will:
(i) hold the goods as bailee for the Seller;
(ii) store and keep these goods separate from other goods;
(iii) label the goods so that they are identifiable as the goods of the Seller; and
(iv) insure the goods;
(e) with the Seller's consent (which is given), the Buyer is at liberty to sell the goods, in the ordinary course of the Buyer's business, provided that the money resulting from the sale will:
(i) be held in a separate account with a bank to which the Buyer has not given security, on trust for the Seller, however failure to do so will not affect the Buyer's obligation as trustee;
(ii) not be mingled with other money; and
(iii) not be placed into an overdrawn account; and
(f) in the event that the Buyer uses the goods in some manufacturing or construction process of its own or of some third party then the Buyer will hold such part of the proceeds of such manufacturing or construction process as relates to the goods on trust for the Seller. Such part will be deemed to equal in dollar terms the amount owing by the Buyer to the Seller at the time of receipt of such proceeds.33. The Buyer is not an agent of the Seller in any sale of the goods by the Buyer. The Buyer must allow the Seller reasonable access to the Buyer's premises in order to inspect the goods at any time to ensure the Buyer is complying with its obligations under this contract.
34. After the happening of an Event of Default, in addition to its rights under the PPSA, the Seller may without demand or notice retake possession of the goods and may without notice sell the goods on such terms and in such manner as it determines and will be entitled to deduct all expenses incurred. For the purposes of recovering possession and without limiting the generality of the foregoing, the Buyer irrevocably authorises and licenses the Seller and its servants and agents to enter any premises where any goods may be stored and to take possession of the goods.
35. Notwithstanding anything to the contrary contained in these terms and conditions, the PPSA applies to these terms and conditions. For the purposes of the PPSA:
(a) terms used in clauses 35 to 40 (inclusive) that are defined in the PPSA have the same meaning as in the PPSA;
(b) these terms and conditions are a security agreement and the Seller has a Purchase Money Security Interest in all present and future goods supplied by the Seller to the Buyer and the proceeds of the goods;
(c) the security interest is a continuing interest irrespective of whether there are monies or obligations owing by the Buyer at any particular time; and
(d) the Buyer must do whatever is necessary in order to give a valid security interest over the goods which is able to be registered by the Seller on the Personal Property Securities Register.
36. The security interest arising under clauses 35 to 40 (inclusive) attaches to the goods when delivery occurs and not at any later time.
37. Where permitted by the PPSA, the Buyer waives any rights to receive the notifications, verifications, disclosures or other documentation specified under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
38. To the extent permitted by the PPSA, the Buyer agrees that:
(a) the provisions of Chapter 4 of the PPSA which are for the benefit of the Buyer or which place obligations on the Seller will apply only to the extent that they are mandatory or the Seller agrees to their application in writing; and
(b) where the Seller has rights in addition to those in Chapter 4 of the PPSA, those rights will continue to apply.
39. The Buyer must immediately upon the Seller's request:
(a) do all things and execute all documents necessary to give effect to the security interest created under these terms and conditions;
(b) procure from any person considered by the Seller to be relevant to its security position such agreements and waivers (including as equivalent to those above) as the Seller may at any time require; and
(c) reimburse the Seller for all costs, expenses, fees and charges incurred by the Seller in registering the security interest over the goods created under these terms and conditions.
40. The Seller may allocate amounts received from the Buyer in any manner that the Seller determines, including in any manner required to preserve any Purchase Money Security Interest it has in goods supplied by the Seller.
41. The Seller warrants to the Buyer that, the Goods will be free from defects due to faulty workmanship and materials during a period of twelve (12) months from the date of delivery or such other longer period expressly agreed ("the Warranty Period"). During the Warranty Period if any such Goods or part thereof are found to be defective, the Seller at its option may repair the Goods or part thereof or supply a replacement for the Goods ("the Warranty").
42. The Warranty does not extend to:
(a) Goods not being used or installed in accordance with the manufacturer's specifications and instructions;
(b) Goods or part thereof (as the case may be) that have been subjected to misuse, neglect, accident or improper installation;
(c) Goods or part thereof (as the case may be) that have been altered, repaired or subjected to any technical attention by any person other than an authorised representative of the Seller;
(d) damage due to normal wear and tear that in the Seller's opinion, appear in the Goods within the Warranty Period;
(e) Goods expressly sold as used goods or second grade goods;
(f) consequential and/or secondary damages or losses of any kind sustained directly as a result of defect in the Goods;
(g) any parts integrated within the Goods which have been provided by the Buyer, or failure of the Goods caused by those parts;
(h) the overall performance of any plant or the result of any process in which the Goods are used.
43. Other than the express warranty provided under this Agreement, the Seller does not make any warranty or representation as to the quality, nature, fitness, suitability, of the goods, or their conformance with description. Any term, condition or warranty implied into a contract by a federal law or state law is expressly excluded from the contract to the extent permitted by law. The Buyer must rely on the express warranty under this Agreement.
44. The Seller will not process any Warranty claim and will not be responsible for a claim unless:
(a) the Buyer provides evidence of purchase, such as an invoice;
(b) the Buyer has arranged the return of the Goods to the Seller at the Buyer's cost, if requested by the Seller;
(c) the claim must be made in writing to the Seller within 14 days of the defect in the Goods being discovered and must set out the reasons for the claim in detail.
45. Should the Seller be called to carry out work to Goods or part thereof (as the case may be) under the Warranty and it be found by the Seller that the defect in the Goods lies outside the terms of the Warranty and therefore outside its responsibility, then any costs incurred by the Seller in investigating the defect/s will be charged to and payable by the Buyer.
46. The Buyer will inspect the goods immediately upon delivery to the Buyer or upon collection of that order by the Buyer's agent or courier as the case may be.
47. All requests for return of the goods must be made in writing by the Buyer within 7 days of receipt of the goods and the notice must set out the reasons for the return. The Seller is not obliged to accept the return of goods if the Buyer does not comply with this clause.
48. The Seller will not and is not obliged to accept return of goods where the goods:
(a) have been imported specifically for the Buyer;
(b) are non-standard products;
(c) are known to be second grade products; or
(d) have been damaged in transit.
If the goods are returned contrary to this clause, the Seller may send the goods back to the Buyer, at the Buyer's account and expense.
49. In the event of justified objection notified by the Buyer to the Seller in accordance with these terms, the Seller may, at its option:
(a) reduce the purchase price by agreement with the Buyer;
(b) accept the return of the goods and, subject to the goods being returned in the same condition as when they were delivered to the Buyer, refund to the Buyer any purchase price paid; or
(c) replace the goods,
and, to the extent permitted by law, no additional claims of any nature whatsoever may be made against the Seller.
50. Any advice, recommendation, information, assistance or service given by the Seller in relation to goods sold or manufactured by the Seller or their use or application is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given, but is provided without any warranty or accuracy, appropriateness or reliability and to the extent permitted by law, the Seller does not accept any liability or responsibility for any loss suffered from the Buyer's reliance on such advice, recommendation, information, assistance or service.
51. The terms in this agreement that exclude or limit the owner's liability will apply only to the extent permitted by law. Provisions of the Competition and Consumer Act 2010 (Cth) (as amended) and other statutes from time to time in force cannot be excluded, restricted or modified or can only be restricted or modified to a limited extent. This agreement must be read and construed subject to any such statutory provisions. If any such statutory provisions apply, then to the extent to which the owner is entitled to do so, its liability under those statutory provisions, to the extent permitted by law, will be limited at the Seller's option to:
(a) the replacement of the goods or the supply of equivalent goods;
(b) the repair of the goods;
(c) the re-supply of the services;
(d) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(e) the payment of the cost of having the goods repaired.
52. The Seller shall, to the extent permitted by law, have no liability whatsoever under this agreement or pursuant to any supply under this agreement for loss of use, production, profit, revenue, business, data, contract or anticipated saving, or for any financing costs or increase in operating costs or any economic loss, or for any special, indirect, or consequential loss or damage.
53. The Buyer shall indemnify and keep indemnified the Seller against any claim by a person against the Seller for any breach or infringement of a third party intellectual property right such as copyright, registered design, trade mark, patent (whether registered or not) or any other similar right, arising from the use by the Buyer of the goods.
54. The Buyer (and Guarantor if applicable) agrees for the Seller to obtain from a credit reporting agency a credit report containing personal credit information about the Buyer and guarantors in relation to credit provided by the Seller. The Buyer and/or Guarantor agree that the Seller may exchange information about the Buyer and the guarantors with those credit providers either named as trade referees by the Buyer or named in a credit report issued by a credit reporting agency for the purposes of assessing a credit application by the Buyer, to notify other credit providers of default, to assess the credit worthiness of the Buyer, to exchange information as to the Buyer's default with other credit providers. The Buyer consents to the Seller being given a consumer credit report to collect overdue payment on commercial credit. The Seller may give information to a credit reporting agency to obtain a credit report about the Buyer or to allow the credit reporting agency to create or maintain a credit information file about the Buyer.
55. All Intellectual Property including plans, drawings, computer programmes, designs or specifications supplied by the Seller to the Buyer will remain the property of the Seller at all times. Any information derived therefrom or otherwise communicated to the Buyer must be treated as secret and confidential. Except strictly for the purposes of the Contract or with the prior written consent of the Seller given or withheld on any terms thought fit by the Seller in its sole and absolute discretion, such information must not be published or disclosed to any third party or made use of by the Buyer. The Buyer will take all steps necessary to protect the confidentiality of such information including without limitation commencing legal proceedings on request of the Seller at the Buyer's cost. The Buyer agrees to do all things reasonable necessary required and execute all documents to ensure the Seller retains ownership in the Intellectual Property.
56. The Buyer must keep confidential all information including these Terms and Conditions, the price of the supply of the goods, and any information which the Seller may reasonably consider is confidential, unless the Buyer is require by law to disclose such information or the information has become public information or with prior written consent of the Seller.
Before we collect personal information from you, there is an obligation (pursuant to the Privacy Act 1988 (Cth) as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012) (Act) to supply you certain privacy information prior to you providing personal information for this credit application.
Name of Credit Provider & Australian Privacy Principle Entity: Tsubaki Australia Pty Limited ABN 45 003 232 639 of Unit E, 95-99 Silverwater Road Silverwater NSW 2128 Phone (02) 9704 2500 Fax (02) 9704 2550
ACKNOWLEDGEMENT OF DISCLOSURE OF CREDIT INFORMATION TO A CREDIT REPORTING BODY
I/We acknowledge that section 21C of the Act allows for the Credit Provider to give a nominated Credit Reporting Body certain personal information about my/our application for credit.
The personal information that may be provided to a Credit Reporting Body may include:
• Such permitted particulars about me/us which allows me/us to be identified
• The fact that I/We have applied for credit and the amount
• The fact that the Credit Provider is a current credit provider to me/us
• Payments which become overdue and advice that payments are no longer overdue
• In specified circumstances, that in the opinion of the above named Credit Provider, I/We have committed a serious credit infringement
• Information about you/your consumer repayment history information as to whether you have met your consumer credit payment obligations on time or whether you have missed a payment.
By virtue of this acknowledgement, I/We understand that the above mentioned Credit Provider has informed me/us of its disclosure policy to a Credit Reporting Body about me/us and I/We so authorise this disclosure.
AGREEMENT/AUTHORITY FOR CREDIT PROVIDER TO PERFORM CERTAIN PERMITTED ACTIONS CONCERNING A CREDIT APPLICATION OR TRANSACTION
1. I/We agree that, if it is considered relevant in assessing my/our application for personal credit, the Credit Provider may obtain a report about my/our commercial activities or commercial credit worthiness from a business which provides information about the commercial credit worthiness of persons.
2. I/We agree that if it is considered relevant in assessing my/our application for commercial credit, the Credit Provider may obtain from a Credit Reporting Body, a credit report containing personal credit information about me/us.
3. I/We agree that, if it is considered relevant to collecting overdue payments in respect of commercial credit provided to me/us, the Credit Provider may receive from a Credit Reporting Body a credit report containing personal information about me/us.
4. I/We agree that the Credit Provider may give to and seek from any credit providers named in the accompanying credit application and any other credit providers that may be named in a personal or commercial credit report issued by a credit reporting body or a commercial credit reporting body respectively, information about my/our personal and commercial credit arrangements. I/We understand this information about my/our credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive under the Act.
Acknowledgement of disclosure of the Credit Provider's collection and handling of personal information and credit eligibility information (information supplied by a Credit Reporting Body)
1. Should the Credit Provider obtain personal information from someone other than the individual, and you may not be aware that the Credit Provider has collected personal information, the Credit Provider will advise you of the collection, the information collected and the circumstances of the collection.
2. The primary purpose of collection of this information is to assess your suitability, as an individual or a guarantor for the provision of credit and future identification. This personal information you supply may be utilised at a later date for Tsubaki Australia Pty Limited, or any of its associated divisions or organisations to market products or services, direct to you/yourselves. You/Yourself may decline at any time to receive promotional material.
3. If you do not supply Tsubaki Australia Pty Limited with the information requested, we may be unable to process your application for credit or assist you if you wish to obtain information by telephone, email or fax at a later date.
4. In certain circumstances Tsubaki Australia Pty Limited may disclose the personal information you supply to:
• A debt collection agency or agent.
• Another credit provider who is bound by the same privacy principles we follow.
• Any person or organisation including relatives and referees named in any application for credit or held on our database.
• Any contractor or organisation that provides administration services or activities on our behalf. In these circumstances we ensure that the third party is bound by the same privacy principles we follow.
• Any organisation we are required or authorised by law to disclose personal information.
• How an individual may access personal information held by Tsubaki Australia Pty Limited and seek the correction of such information.
• How an individual may complain about a breach of the Australian Privacy Principles or the Australian Privacy Principal Code that may bind Tsubaki Australia Pty Limited and how Tsubaki Australia Pty Limited will deal with such a complaint.
• Whether Tsubaki Australia Pty Limited is likely to disclose personal information to overseas recipients.
• If Tsubaki Australia Pty Limited does disclose personal information to overseas recipients - it specifies where those countries are located.
• Your right to request that the Credit Reporting Body not to undertake a pre-screening for the purposes of direct marketing by the Credit Provider.
• Your right to request a Credit Reporting Body not to release information about you if you believe you are victim of fraud.
ACL means the Australian Consumer Law as set out in Schedule 1 of the Act.
Act means the Competition and Consumer Act 2010 (Cth).
Goods means those goods and services described in this Order made by the Purchaser from the Seller.
Order means the purchase order made by the Purchaser to the Seller for the purchase of Goods.
Special Conditions means the terms and conditions specified on the front of this Order and such Special Conditions prevail over these Terms and Conditions to the extent of any inconsistency.Terms and Conditions means the terms and conditions to apply to this Order as set out herein including any Special Conditions.
The Purchaser means Tsubaki Australia Pty Ltd (ABN 45 003 232 639).
The Seller means the person, firm or corporation from whom the Goods have been ordered by the Purchaser.
(a) The Seller agrees that this Order constitutes the entire contract between the Purchaser and the Seller and supersedes any prior contract arrangement or understanding between the Purchaser and the Seller. No local, general or trade custom will affect in any way these Terms and Conditions.
(b) Acceptance of this Order by the Seller shall constitute acceptance of the Terms and Conditions and any addition, amendment or deletion which may appear in the Seller's acceptance or any other statement, written or oral, shall be without effect unless agreed to in writing by an expressly authorised officer of the Purchaser.
(c) No waiver or variation of these Terms and Conditions will be binding on the Purchaser unless signed by both the Purchaser and the Seller. No waiver by the Purchaser of any default, breach or repudiation of these Terms and Conditions affects the rights of the Purchaser in connection with any future or continuing default, breach or repudiation.
(a) Where fixed prices are quoted in this Order, no variations may be made without the Purchaser's prior written consent and commencement of work by the Seller on the Goods comprising this Order will be deemed to constitute acceptance of the prices stated in this Order. If the Order is marked "Price to be agreed", quotations must be submitted and the Purchaser's prior written agreement to the price must be in the Seller's possession before the Goods are invoiced.
(b) If the Order is subject to price escalation, any price escalation agreed to by the Purchaser must not apply beyond the delivery date.
A notice of dispatch must be sent by the Seller to the Purchaser at the time the Goods are dispatched to the Purchaser. The notice must state the number of the Order, the Goods, the Seller's name and the address and the method and date of dispatch.
(a) Subject to Clause 5 (b) the Purchaser will pay all freight charges unless otherwise agreed to by the parties in writing.
(b) The Seller will be accountable for any freight charges in connection with the Seller's failure to comply with the Purchaser's dispatch instructions.
(a) Subject to this clause, the Seller must deliver the Goods on the date specified in this Order.
(b) Delivery of all Goods is subject to inspection by Purchaser upon arrival at the ultimate destination irrespective of payment being made for all or part of Goods prior to such arrival. If within fourteen (14) days of delivery to the Purchaser's premises, the Purchaser in its sole and absolute discretion considers that the Goods:
(1) are not of merchantable quality or fit for their purpose; or
(2) are not of the standard of design, material, workmanship or quality specified by the Purchaser in this Order; or
(3) do not correspond with the sample or description provided by the Seller;
the Purchaser may, without prejudice to any other rights conferred on the Purchaser by law including the ACL, within that time by notice to the Seller elect to:
(i) return the Goods to the Seller at the Seller's expense and risk; or
(ii) have the Goods repaired at the Seller's expense and risk; and
(iii) have the Seller repay all amounts paid by the Purchaser to the Seller on account of the Goods.
(c) The Purchaser reserves the right to inspect all or part of the Goods and the Seller agrees to provide access to its premises for such purposes upon reasonable notice at any stage of production before dispatch. The Purchaser may inspect the Goods in any manner it thinks fit in its sole and absolute discretion and on such inspection may require the amendment or alteration of anything which does not comply with this Order or to reject all or part of the Goods of which it may disapprove. If any Goods are rejected on such inspection, the Seller will immediately at its own expense provide new Goods to the sole and absolute satisfaction of the Purchaser. Such inspection will not release the Seller from liability (including without limitation for breach of any warranties expressly given by the Seller under any statute or by-law) or imply acceptance of the Goods by the Purchaser.
(d) The Purchaser may adopt any means it thinks fit in its sole and absolute discretion to satisfy itself that proper materials or workmanship are or have been used.
(a) In the event of the Seller's failure to deliver the Goods by the date specified by the Purchaser in this Order, then in addition to any other rights in these Terms and Conditions or available by law, the Purchaser may refuse to accept the Goods.
(b) In the event of the Seller's failure to deliver the Goods by the date specified in the Order or failure to supply the Goods in accordance with this Order, then in addition to any other rights in these Terms and Conditions or available at law, the Seller will upon demand by the Purchaser pay reasonable damages in respect of the loss or expense (direct or indirect) suffered or incurred by the Purchaser including without limitation loss of profit.
Title to and risk in the Goods will pass upon acceptance of delivery of the Goods by the Purchaser. The Purchaser will be under no obligation to insure the Goods until such time as they are accepted by the Purchaser.
Before placing orders on sub-contractors, the Seller must notify the Purchaser of the names of the sub-contractors for the Purchaser's sole and absolute approval. The Purchaser may request further information regarding any sub-contractor. The Seller's engagement of a sub-contractor will not release or relieve the Seller from its obligation to properly carry out this Order. The Purchaser reserves the right to inspect all sub-contracted work and these Terms and Conditions will apply hereto.
The Goods must comply with any standards of the Standards Association of Australia (or equivalent replacement body) and the requirements of any government or any other authority in Australia.
(a) The ACL in certain circumstances implies guarantees into contracts for the supply of goods. The Purchaser has the benefit of all such conditions and warranties, whether they are capable of being excluded by the Seller or are mandatory, together with the benefit of the warranty against defects in clause 11(b).
(b) Warranty against defects:
Without derogating from the express and implied terms and conditions in this Order, the Seller is liable for a period of 12 months from the date on which the Goods are delivered to the Purchaser's premises to repair or replace on notice from the Purchaser any Goods which are defective (latent or patent) in design, material, workmanship or quality specified by the Purchaser in this Order.
(c) Express warranty:
Without derogating from the implied guarantees referred to in clause 11(a), the Seller expressly warrants to the Purchaser that:
(1) the Seller is the legal and beneficial owner of the Goods and the Goods are not subject to any mortgage, lien, charge, security interest or other encumbrance:
(2) the Goods are of merchantable quality, fit for their purpose and will correspond with the description or sample:
(3) the supply of the Goods does not infringe any Australian patent, registered design, trademark or copyright: and
(4) the Goods will be produced, supplied and delivered to the Purchaser in compliance with all applicable laws and regulations.
(d) The Seller indemnifies the Purchaser on demand against any loss, damage or expense (direct or indirect) sustained or incurred by the Purchaser by reason of any breach of this Order or any act or omission on the part of the Seller, its employees, sub-contractors or agents (including without limitation negligence) in connection with this Order or the Goods.
Where delivery time is critical and later delivery is expected to result in financial loss to the Purchaser, liquidated damages for late delivery will be negotiated in good faith.
All Intellectual Property including plans, drawings, computer programmes, designs, specifications and any other documentation supplied by the Purchaser to the Seller will remain the property of the Purchaser. Any information derived therefrom or otherwise communicated to the Seller in connection with this Order must be treated as secret and confidential. Except in connection with the execution of this Order or with the prior written consent of the Purchaser in its sole and absolute discretion, such information must not be published or disclosed to any third party or used by the Seller. The Seller will take all steps necessary to protect the confidentiality of such information including without limitation if requested by the Purchaser commencing legal proceedings at the Seller's cost.
(a) If the Goods are standard stock merchandise of the Seller, the Purchaser in its sole and absolute discretion may by notice at any time cancel any un-dispatched portion of this Order without further obligation except to pay for Goods already dispatched prior to receipt of such notice.
(1) If this Order covers merchandise manufactured to the specifications of the Purchaser, then at any time prior to completion of the work, the Purchaser may in its sole and absolute discretion by notice cancel this Order and upon receipt of such notice, the Seller must stop all work except as otherwise notified by the Purchaser.
(2) Upon receipt of such notice, the Purchaser will pay to the Seller the Seller's actual out of pocket expenses to date of receipt of any notice, including its reasonable costs in connection with cancellation of any sub-contracts approved by Purchaser AND five per cent (5%) of such costs.
In no event will the total amount to be paid exceed the purchase price AND provided further that if the Seller at the time of receipt of such notice is in default in delivery or under any other terms or conditions of this Order, the Seller will not be entitled to the five per cent (5%) of its actual out of pocket expenses.
(3) Upon such payments, any materials or uncompleted portion of the Goods will become the property of the Purchaser and subject to its control.
(c) This Order may be cancelled in whole or in part by the Purchaser by notice at any time prior to dispatch without further obligation if between the date of this Order and the date of dispatch new requirements are imposed by any government or other authority in Australia in respect of the Goods and the Goods do not comply with such requirements.
(d) If in the sole and absolute opinion of the Purchaser the quantity of Goods dispatched or the date of dispatch from the Seller differs significantly from the quantity or date of dispatch specified by the Purchaser in this Order the Purchaser may by notice in writing cancel this Order in whole or part without further obligation except to pay for Goods already dispatched prior to the Seller's receipt of such notice.
(e) Without limiting any other rights of the Purchaser under the Terms and Conditions the Purchaser may elect to cancel this Order without further obligation, by notice to the Seller upon:
(1) any application to make the Seller bankrupt, or to dissolve the Seller, or to wind up the Seller;
(2) the Seller resolving to enter into any form of insolvency administration;
(3) a receiver, a receiver and manager, provisional liquidator, special investigator or official manager being appointed to the Seller;
(4) the Seller failing to remedy a breach of these Terms and Conditions within 7 days notice from the Purchaser;
(5) cancellation or termination will not affect any antecedent breach by the Seller;
(6) the rights of the Purchaser under this clause are in addition to any rights of the Purchaser by law;
(7) apart from this clause, the Seller will not be entitled to any damages (including without limitation loss of profit) in connection with any cancellation or termination of this Order.
(a) In respect of any matter or thing which must be done by the Seller within a stipulated period, time is of the essence.
(b) If any of these Terms and Conditions is illegal, unenforceable or void then to the extent of such illegality, unenforceability or invalidity that term will be considered independently of and severable from the other Terms and Conditions in any way whatsoever.
(c) A certificate by an employee of the Purchaser as to any act or omission of the Seller shall be accepted by the Seller in all courts and at all times to be prima facie evidence of the matters stated therein.
(d) These Terms and Conditions will be construed and interpreted in accordance with the laws of New South Wales and the Seller irrevocably agrees to submit to the non-exclusive jurisdiction of the courts of that State.
(e) All notices under these terms and conditions must be in writing. A notice given by the Purchaser to the last known place of business of the Seller will be deemed received on delivery or the business day in New South Wales following posting, whichever is the earlier.
(f) In the event of a complete or partial stoppage of work at the Purchaser's premises due to force majeure (including without limitation, fire, power, failure, strike, lock-out, floors, riot, civil commotion, government action or any other reasonable cause) this Order may be partially or wholly suspended by the Purchaser in its sole and absolute discretion by notice to the Seller at any time during or after such stoppage.
(g) Headings in these Terms and Conditions are for convenience only and do not affect their interpretation.
20 April 2020