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.
(a) ACL means the Australian Consumer Law as set out in Schedule 1 of the Act.
ACLR means the Competition and Consumer Regulations 2010 (Cth).
Act means the Competition and Consumer Act 2010 (Cth).
Buyer means the person, firm or corporation named in the Quotation / Invoice or Order and in the case of an individual, his executors, administrators and assigns, and in the case of a corporation, its successors and assigns.
Consumer has the meaning given to that term in Section 4B of the Act;
Contract Price means:
(1) in the case where a Quotation has been issued by the Seller to the Buyer for the supply of the Goods, such amount as the Seller has specified in the Quotation as being the Contract Price; and
(2) in any other case, the price determined by the Seller and specified in the Seller's Invoice in respect of the relevant Goods.
Goods means those goods and services the subject matter of and particularised in the relevant Quotation or Invoice, as the case may be.
G.S.T. means any goods and services tax under A New Tax System (Goods and Services Tax) Act 1999 ("GST Act").
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.
Invoice means any invoice given by the Seller to the Buyer in connection with its supply to the Buyer of the Goods that are subject to these Terms and Conditions.
Order means an order to buy the Goods from the Seller made by the Buyer to the Seller.
PPSA means the Personal Property Securities Act 2009 (Cth).
Quotation means any quotation given by the Seller to the Buyer for the Seller to supply to the Buyer the Goods and subject to these Terms and Conditions.
Seller means Tsubaki Australia Pty Ltd (ABN 45 003 232 639).
Special Conditions means those terms and conditions of the Seller (if any) in addition to these Terms and Conditions set out in the relevant Quotation, or acceptance of any Order, as the case may be.
Terms and Conditions means these terms and conditions of sale as amended from time to time by the Seller and notified to the Buyer.
(b) In the event of any inconsistency between these Terms and Conditions and any Special Conditions, the Special Conditions will prevail.
(a) Subject to clause 2(c) the Buyer and Seller agree that an Order is binding on the Seller and Buyer immediately upon the Seller accepting the Order or the Seller making a supply to the Buyer and such Order is subject to these Terms and Conditions as varied by any Special Conditions ("the Contract"). The Buyer and the Seller acknowledge and agree that the Contract supersedes any prior contract, arrangement or understanding between the Buyer and the Seller. No local, general or trade custom will affect in any way the Contract.
(b) No waiver or variation of the Contract will be binding on the Buyer or the Seller unless signed by both the Buyer and the Seller.
(c) Notwithstanding clause 2(a) the Contract shall be subject to and conditional upon any necessary import or export licence being obtained by the Seller.
(d) An Order which has been accepted in whole or in part by the Seller cannot be cancelled by the Buyer without obtaining the prior written approval of the Seller, which it may refuse in its absolute discretion.
(a) Unless previously withdrawn, a Quotation is valid for thirty (30) days from the date the Quotation is provided or such other period as agreed by the Seller. A Quotation is not to be construed as an obligation by the Seller to sell but merely an invitation to treat and no contractual relationship shall arise therefrom until an Order has been sent by the Buyer and accepted by the Seller.
(b) The Seller is not bound by any conditions attached to any Order unless such conditions are expressly accepted by the Seller, otherwise, these Terms and Conditions and any Special Conditions override and prevail over any conditions contained in the Buyer's Order.
(a) The Contract Price is exclusive of G.S.T. and may be subject to other taxes or duties which may be imposed on or in relation to the supply of the Goods by the Seller or the acquisition of the Goods by the Buyer under the relevant Contract and all such taxes and duties will be paid and borne by the Buyer.
(b) Where the Seller is liable to pay any tax or duty referred to in sub paragraph (a) of this clause 4, the Buyer must together with the Contract Price pay to the Seller an amount which results in the Seller receiving the Contract Price after having accounted for such payments.
(c) If by reason of any legislation or regulation or government action, or other causes beyond the Seller's control, any kind of tax, duty or impost becomes chargeable or applicable to the supply made under this Contract (after the making of the relevant Contract) is imposed or is incurred by the Seller, the Seller will notify the Buyer and the Buyer must pay the Seller the amount of any such charge or duty.
(a) Unless otherwise agreed in writing, the Buyer must pay the Contract Price to the Seller within thirty (30) days of the end of that month that the Goods are delivered to the Buyer. Notwithstanding the foregoing, the Seller may without prejudice to its rights, and, in its sole and absolute discretion, elect not to enforce payment of the Contract Price for any particular period until further notice to the Buyer, where upon such notice the Buyer must immediately pay all costs and amounts outstanding.
(b) If the Buyer fails to pay the Contract Price to the Seller in full in accordance with this clause, then without prejudice to any other rights under the relevant Contract or available by law:
(1) the Buyer will be liable to pay interest to the Seller (at a rate which is equal to the overdraft rate charged by the Seller's bank from time to time) on the Contract Price or so much thereof as remains outstanding from time to time, computed from the due date for the payment of the same until the date that the outstanding Contract Price is received and calculated on daily balances; and/or
(2) the Seller may suspend or cancel performance (including the supply/dispatch of the relevant Goods) of any of its contractual obligations to the Buyer without prejudice to any of its existing rights; and/or
(3) the Seller may cancel all trade discounts or rebates previously extended by it to the Buyer.
(c) In the event of a default by the Buyer, then without prejudice to any other rights which the Seller may have at law or under these Terms and Conditions:
(1) the Seller or its agents may without notice to the Buyer enter the Buyer's premises or any premises under the control of the Buyer for the purposes of recovering the Goods;
(2) the Seller may recover and resell the Goods;
(3) if the Goods cannot be distinguished from similar goods which the Buyer has or claims to have paid for in full, the Seller may in its absolute discretion seize all goods matching the description of the Goods and hold same for a reasonable period so that the respective claims of the Seller and the Buyer may be ascertained. The Seller must promptly return to the Buyer any goods the property of the Buyer and the Seller is in no way liable or responsible for any loss or damage to the goods or for any loss, damage or destruction to the Buyer's business howsoever arising from the seizure of the Goods;
(4) in the event that the Buyer uses the Goods in some manufacturing or construction process of its own or some third party, then the Buyer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the Goods in trust for the Seller. Such part will be an amount equal in dollar terms to the amount owing by the Buyer to the the Seller at the time of the receipt of such proceeds. The Buyer will pay the Seller such funds held in trust upon the demand of the Seller;
(5) the Buyer must pay to the Seller all reasonable costs and disbursements incurred by the Seller in pursuing any recovery action, or any other claim or remedy against the Buyer, including debt recovery fees and legal fees incurred by the Seller on a solicitor client basis and as a liquidated sum.
(a) The Goods will be at the Buyer's risk:
(1) in the case where the Seller arranges for delivery of the Goods to the Buyer either at the Buyer's cost or the Seller's cost, just prior to the Goods being unloaded at the address nominated by the Buyer for delivery; and
(2) in the case where the Buyer arranges for the delivery of the Goods, immediately upon the Goods being placed into the hands of the Buyer's carrier or the Buyer's agent's carrier (as the case may be).
(b) Subject to clause 6(c), the Buyer will be responsible at their expense for arranging the delivery of the Goods and must accept delivery of the Goods . Freight rates, handling and insurance will be at the cost of the Buyer.
(c) Notwithstanding anything contained in clauses 6(a) and (b), the Seller may in its absolute and unfettered discretion, at the cost of the Buyer arrange for the delivery of the Goods to the Buyer.
(d) The Buyer must insure the Goods against such risks as the Buyer considers appropriate for the period from the time risk passes in the Goods to the Buyer in accordance with clause 6(a).
(e) The Buyer acknowledges that any time quoted to them by the Seller for delivery is an estimate only. The Seller may suspend delivery or extend delivery time in whole or part for any reason whatsoever. The Seller will not be liable in any way to the Buyer (including without limitation for loss of profits or other consequential loss) for any loss arising out of any failure or delay in delivery of the Goods or in connection with damage to the Goods howsoever caused during delivery.
(f) The Seller may arrange for delivery of the Goods in instalments and these Terms and Conditions will apply to the supply of each instalment as if that supply was the subject of a separate contract between the Seller and the Buyer. In particular, the Buyer will pay the Seller for each instalment so supplied, irrespective of the failure or delay in delivery of any other installment.
Legal and beneficial title to the Goods will remain with the Seller until the Contract Price and any other amounts owing have been paid in full to the Seller. Until such time and notwithstanding the delivery of the Goods to the Buyer:
(a) the Seller may retain possession of all documents or certificates of ownership or other evidence of title to the Goods;
(b) the Buyer must maintain the Goods in the same condition as they are at the date of their delivery to the Buyer;
(c) the Buyer must not place, or allow to be placed, on the Goods any plates or marks that are inconsistent with the ownership of the Seller;
(d) the Buyer must not part with possession of the Goods without the Seller's written consent;
(e) the Buyer must store the Goods separately from any other goods in the Buyer's possession and in such a manner as to indicate that the Goods are the property of the Seller;
(f) the Buyer will hold the Goods as bailee on trust for the Seller; and
(g) the Buyer must not give another person an interest in or any form of security over the Goods, or authorise anyone else to do so, without the Seller's written consent.
(a) Defined terms in this clause have the same meaning as in the PPSA. At the Seller's request, the Buyer must promptly execute any documents and do anything required to register the Seller's security interest in the Goods under applicable legislation (including the "security interest" granted to the Seller under clause 8.(b)(i)).
(b) To secure payment of all amounts owing to the Seller by the Buyer and the performance of all other obligations of the Buyer under this Contract which constitutes a Security Interest, to the extent applicable to the sale of the Goods, the Buyer:
(i) grants to the Seller a Security Interest in the Goods;
(ii) must immediately return the Goods if requested to do so by the Seller following non-payment of any amount owing by the Buyer to the Seller or non-fulfilment of any other obligation of the Buyer to the Seller, without limiting any other right the Seller may have;
(iii) gives the Seller the right to inspect the Goods or any part of them at all reasonable times;
(iv) waives its right:
(1) to receive any notice that the Seller intends to sell the Goods or to retain the Goods on enforcement of the Security Interest granted to the Seller under these Terms and Conditions;
(2) to object to the Seller's proposal to retain the Goods in satisfaction of any obligation owed by the Buyer to the Seller; and
(3) where any Goods become an accession, as defined in the PPSA, to not have any Goods damaged when the owner removes the accession, to receive notice of removal of the accession and to apply to the court for an order concerning the removal of the accession, under the PPSA;
(v) must not give to the Seller a written demand, or allow any other person to give to the Seller a written demand, requiring the Seller to register a financing change statement or enter into or allow any other person to enter into the register of personal property securities a financing change statement under the PPSA in relation to the Goods;
(vi) must not sell, lease, dispose of, create a Security Interest in, mortgage or part with possession of the Goods or any interest in them (or purport or attempt to purport to do such thing) or permit any lien over the Goods;
(vii) by collecting or accepting delivery of the Goods, acknowledges that these Terms and Conditions constitute a Security Agreement for the purposes of section 20 of the PPSA and it has received value as at the date of first collection of the Goods and has not agreed to postpone the time for attachment of the Security Interest granted to the Seller under this Contract; and
(viii) to the extent permissible by law, waives its right 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 Buyer, as Grantor, to the Seller.
The following statement applies only if the supply of Goods is to a Consumer:
Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
(a) EXPRESS WARRANTY
In addition to the consumer guarantees implied into this Contract by the ACL where the Buyer is a Consumer the Seller warrants to the Buyer that, subject to proper use in accordance with the manufacturer's specifications and instructions the Goods will be free from defects solely due to faulty workmanship and materials during a period of twelve (12) months from the date of delivery ("the Warranty Period").
For the purposes of this clause 9 "Goods" does not include and the Seller makes no warranty regarding any item of equipment included in the Goods, which is not manufactured by the Seller. To the extent possible the Seller assigns to the Buyer the benefit of any warranties it has obtained from its suppliers of such goods.
(b) WARRANTY AGAINST DEFECTS
In addition to the rights and remedies conferred on a Buyer by the ACL where the Buyer is a Consumer the Seller warrants to the Buyer that during the Warranty Period upon the Purchaser returning to the Seller, freight pre-paid of the Goods or part thereof to the address of the Seller set out paragraph 9(g) below, the Seller shall, if it finds in its sole opinion such Goods or part thereof to be so defective, at its option repair the Goods or part thereof or supply a replacement for the Goods ("the Warranty") PROVIDED THAT the Warranty does not extend to:
(i) Goods or part thereof (as the case may be) that have been subjected to misuse, neglect, accident or improper installation;
(ii) Goods or part thereof (as the case may be) that have, without the Seller's consent, been altered, repaired or subjected to any technical attention by any person other than the Seller's authorised representative;
(iii) damage due to normal wear and tear that in the Seller's opinion, appear in the Goods within the Warranty Period;
(iv) any of the Goods sold to the Buyer for on-sale or re-supply;
(v) consequential and/or secondary damages or losses of any kind sustained directly as a result of defect in the Goods;
(vi) the overall performance of any plant or the result of any process in which the Goods are used.
(c) 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;
(d) The Seller states that to the extent that the Buyer is a Consumer, the benefits to the Buyer given by the Warranty are in addition to other rights and remedies of the Buyer under a law in relation to the goods or services to which the Warranty relates;
(e) The Buyer acknowledges and agrees that:
(1) the Goods are of a size, design, capacity, manufacture, workmanship and material selected by the Buyer;
(2) the Buyer is fully satisfied that the Goods are suitable for all the Buyer's purposes;
(3) the Buyer in ordering the Goods has relied entirely on its own judgment and not on any statements, written or oral, made by the Seller, its employees or agents;
(4) all promises, warranties, and conditions express or implied by law or otherwise with respect to the Goods are hereby expressly negated and extinguished to the extent permitted by law;
(5) the Seller will not be liable to the Buyer for any liability, claim, loss, damage or expense of any kind (direct or indirect) in connection with the Goods or any inadequacy or defect (latent or patent) in the Goods;
(6) the Seller will not be liable in any way for any contingent, consequential or resulting loss or damage or any sum being or representing loss of profits or earnings or amounts payable in respect of any accident in connection with the use or condition of the Goods; and
(7) the Seller is under no liability for labour charges or consequential losses incurred as a result of the failure of the Goods,
but these Terms and Conditions will not be read or construed so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying any consumer guarantee to the extent that it is implied by the ACL or by any other statute of any state or territory of the Commonwealth of Australia and which is not legally capable of being excluded, restricted or modified.
(f) For the purposes of Regulation 90(1)(d)(i) of the ACLR the Warranty is given by Tsubaki Australia Pty Ltd ( ABN 45 003 232 639);
(g) For the purposes of Regulation 90(1)(d)(ii) of the ACLR the business address of the person giving the Warranty is:
95-101 Silverwater Rd Silverwater NSW 2128
(h) For the purposes of Regulation 90(1)(d)(iii) of the ACLR the telephone number of the person giving the Warranty is: +61 2 9704 2500
(i) For the purposes of Regulation 90(1)(d)(iv) of the ACLR the e-mail address of the person giving the Warranty is:
Email Tsubaki Australia
(a) The Buyer may not cancel an Order or any part of an Order:
(1) in respect of any Goods made specially to the Buyer's requirements;
(2) placed more than ten (10) working days prior to the date of the purported notice of cancellation.
(b) If the Buyer wishes to cancel the whole or any part of an Order then subject to clause 10(a) the Buyer must serve a cancellation notice on the Seller.
(c) If the Buyer gives a cancellation notice to the Seller the Buyer will be liable to immediately reimburse the Seller for all costs incurred by the Seller up to the date that such notice is received by the Seller.
Save where the Buyer is a Consumer (in which case the limitations set out below do not apply to the extent that they are contrary to the rights of the Buyer under the ACL in the circumstances described below), then to the extent permitted by law:
(a) claims for shortages, loss or damage in respect of the Goods may only be made by the Buyer within seven (7) working days of receipt by the Buyer of the Goods;
(b) claims for credit or return will only be considered if the Goods are returned by the Buyer to the Seller's premises within fourteen (14) working days from the date of their receipt by the Buyer;
(c) the Seller may, but will not be bound, to accept a return of the Goods provided that no returns shall be accepted by the Seller unless agreed in writing by an expressly authorised officer of the Seller and also provided that all costs of returning the Goods to the Seller (including without limitation freight charges, handling and insurance) are paid by the Buyer; and
(d) any discount or allowance (however determined) allowed by the Seller to the Buyer in respect of the Goods will be credited against the price of the Goods and will represent a reduction of that price.
(a) 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.
(b) 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.
(a) To the extent permissible by law, the Buyer must fully indemnify the Seller on demand from all loss or damage (direct or indirect) to property or with respect to any personal injury or any other claims arising from the hire, sale, delivery, or use by the Buyer of the Goods.
(a) The liability of the Seller is limited, to the extent permissible by law and at the option of the Seller:
in relation to Goods, to;
(1) replacing the Goods or the supply of equivalent goods;
(2) the repair of the Goods;
(3) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(4) the payment of the cost of having the Goods repaired; and
in relation to services, to:
(1) the supply of the services again; and
(2) the payment of the cost of having the services supplied again.
(b) To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms and Conditions or in specific warranties accompanying the Goods, are excluded and the Seller is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Buyer for:
(1) any increased costs or expenses;
(2) any loss of profit, revenue, business, contracts or anticipated savings;
(3) any loss or expense resulting from a claim by a third party;
(4) any loss or damage whatsoever in connection with any information, written or oral, or assistance given to the Buyer, whether by way of advice, instruction, technical information, demonstration or otherwise; or
(5) any special, indirect or consequential loss or damage of any nature whatsoever.
(a) In respect of any matter or thing which must be done by the Buyer within a stipulated time frame, time shall be of the essence, consequently, the Buyers failure to comply with such time frame shall constitute a breach by the Buyer of an essential term of the Contract.
(b) If any provision of the Contract is held to be illegal, unenforceable or void then to the extent of such illegality, unenforcability or invalidity that provision will be considered independently of and severable from the other provisions.
(c) A certificate by an employee of the Seller as to any act or omission of the Buyer shall be accepted by the Buyer in all courts and at all times to be prima facie evidence of the matters stated therein.
(d) The Contract shall be construed and interpreted in accordance with the laws of New South Wales and the Buyer irrevocably agrees to submit to the non-exclusive jurisdiction of the courts of that state.
(e) All notices given under the Contract must be in writing. A notice given by the Seller to the last known place of business of the Buyer 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 Seller's premises due to force majeure (including without limitation, fire, power failure, strike, lock-out, floods, riot, civil commotion, government action or any other reasonable cause) the performance of the Contract may be partially or wholly suspended by the Seller in its sole and absolute dissection without liability and by notice to the Buyer 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
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