FROMM PACKAGING AUSTRALIA - TERMS AND CONDITIONS OF SALE OF GOODS AND SERVICES
These Terms and Conditions constitute the terms of credit and/or the terms of supply for Agreements between FROMM Packaging Australia Pty. Ltd. (ACN 010 702 897) and its associated and related bodies corporate (as defined in s50 of the Corporations Act 2001) (unless alternative terms and conditions are specified to apply) of 12 Macadam Street, Seventeen Mile Rocks Queensland 4073 (“Supplier”) and the Customer for the supply of Goods.
1. Definitions
1.1 In these Terms and Conditions the following words and expressions shall have the meaning set opposite:
1.1.1 Agreement – the agreement between the Supplier and the Customer for the supply of Goods.
1.1.2 Agreement Date – the date that an Agreement is deemed to exist pursuant to clause 2.2.
1.1.3 Business Day – a day that is not a Saturday, Sunday or public holiday in the State or Territory of Australia in which the Goods are to be delivered.
1.1.4 Customer - the person or entity acquiring the Goods from the Supplier.
1.1.5 Default – the Customer is in breach of any of these Terms and Conditions.
1.1.6 Deliver Date – the expected date of delivery of the Goods to the Customer.
1.1.7 Goods – all goods, consumables, plant and equipment, Software, spare parts and services supplied by the Supplier to the Customer.
1.1.8 GST – the tax imposed by The New Tax System (Goods & Services) Act 1999 and related legislation.
1.1.9 Interest – the greater of ten percent (10%) per annum or the rate which is three percent (3%) per annum above the rate fixed as at the date of default under Section 2 of the Penalty Interest Rate Act 1983.
1.1.10 Order – an order for Goods made by the Customer to the Supplier.
1.1.11 Price – the price specified in the Quotation or if no Quotation has been given the amount detailed in the Suppliers price list current on the Agreement Date.
1.1.12 Quotation – means a quotation for the supply of Goods made by the Supplier to the Customer.
1.1.13 Software – computer programmes and software in object code form, electronic data files, documentation, user, technical and other similar manuals in any media format and all revisions, modifications, enhancements or additions thereto whether produced by the Supplier or a third party.
2. Ordering and Agreement
2.1 The Customer may place an Order in any manner acceptable to the Supplier.
2.2 A separate and individual Agreement shall only come into existence in respect of each Order on the first to occur of:
2.2.1 the Supplier notifying the Customer in writing of its agreement to supply the whole or any portion of an Order;
2.2.2 the Supplier dispatching the whole or any portion of an Order; or
2.2.3 the Customer accepting a Quotation wholly in accordance with its terms.
2.3 The Supplier reserves the right, irrespective of whether or not an Order has become an Agreement and without notice to the Customer to withhold supply of Goods to the Customer and the Supplier will not be liable for loss or damage resulting directly or indirectly from such action where:
2.3.1 the Supplier has insufficient Goods to supply those made pursuant an Order that has become an Agreement; or
2.3.2 the Supplier cancels any credit facilities provided to the Customer.
3. Pricing
3.1 Unless otherwise agreed in writing the price payable for the Goods shall be the Price.
3.2 Any Price identified in Euro or USD can be converted at the Reserve Bank of Australia rate of day (see www.rba.gov.au) on the date an Order becomes an Agreement.
3.3 Unless otherwise stated the Price does not include GST which is payable in addition to the Price.
3.4 Unless otherwise stated the Price includes packaging and delivery of the Goods to the Customer’s address within Australia on a Business Day.
3.5 If as a result of
3.5.1 any legislation becoming applicable to the subject matter of these Terms and Conditions including any supply of the Goods; or
3.5.2 any changes in legislation or its interpretation by a court of competent jurisdiction or by any authority charged with its administration;
the Supplier becomes liable to pay any tax (other than income tax), duty, excise or levy in respect of the Goods or the amounts received form the Customer then the Customer must pay the Supplier these additional amounts on demand.
4. Payment
4.1 A statement of the Customer’s account by the Supplier is prima facie evidence of its contents.
4.2 Unless the Customer has a credit account with the Supplier the Customer shall pay for the Goods in full at the time that an Order becomes an Agreement.
4.2 If the Customer applies for a credit account and it is approved by the Supplier then
4.2.1 the Supplier will invoice the Customer for each Order which becomes an Agreement; and
4.2.2 the Customer will pay for each Order which becomes an Agreement no later than the end of the month following the date of issue of the invoice for each Order which becomes an Agreement.
4.3 The Supplier may at any time in its absolute discretion and with or without notice to the Customer cancel any credit facilities or impose any conditions upon the credit facilities whether or not the Customer is in Default.
4.4 If the Supplier cancels any credit facilities the amount payable for all Orders which have become an Agreement shall immediately become payable to the Supplier without the need for further demand by the Supplier.
4.5 If the Customer does not pay all amounts due to the Supplier in respect of each Order that becomes an Agreement by the due date the Supplier shall be entitled to charge in addition to all other amounts recoverable by the Supplier pursuant to these Terms and Conditions interest calculated on a daily basis from the due date until the date of payment.
4.6 All payments required to be made by the Customer to the Supplier will be made free of any set off or counter claim and without deduction or withholding.
4.7 Any amount due to the Supplier from the Customer from time to time may be deducted from any amount which may be or may become payable to the Customer by the Supplier.
4.8 If any Goods are supplied to the Customer by the Supplier on consignment the Customer shall:
4.8.1 store the Goods in a secure weather proof environment;
4.8.2 maintain insurance with a reputable insurance company for the full replacement value of the Goods;
4.8.3 provide the Supplier with an accurate count of the Goods within 7 days of the end of each month as to the Goods held at the end of each month;
4.8.4 pay for the Goods on the date agreed between the Supplier and the Customer and calculated at the Price and based on the difference between the Goods held on consignment from month to month having regard to any additional Goods that may have been supplied to the Customer by the Supplier on consignment during such period;
4.8.5 notwithstanding clause 4.8.4 immediately pay the Supplier for any Goods on consignment that have not been paid for within 90 days of their delivery.
4.9 The Supplier may terminate the supply of Goods on consignment to the Customer at any time.
5. Suitability of Goods and Warranty
5.1 Any description or sample of Goods given by the Supplier is for the purpose of identification only and the Customer acknowledges that any sale of Goods pursuant to these Terms and Conditions is not a sale by description or sample.
5.2 The Customer acknowledges that:
5.2.1 it has relied entirely upon its own knowledge skill and judgement and that of its agents and employees in selecting and ordering Goods; and
5.2.2 the Supplier has and will not provide any advice express or implied (including in a Quotation) as to whether particular Goods are fit for any purpose unless expressly provided in writing and signed by the Supplier by its Managing Director.
5.3 The Supplier warrants that the Goods supplied will comply with the Specifications.
5.4 Provided that the Goods have been operated in the manner contemplated by the Supplier and the Customer at the time of the Order and have been operated in accordance with the Specifications (including being serviced as specified by a Supplier authorised technician), during the period of 24 months (or such longer period as may be agreed in writing by the Supplier) from the delivery of the Goods, the Supplier will without charge to the Customer repair or replace (at the Supplier’s option) any defect in the structural and/or non wearing parts of any Goods that draws its operational energy either electrically or pneumatically.
5.5 Fromm warrants the battery and charger in all Battery Powered Tools up to 6 months as per conditions outlined in 5.4.
5.6 In the event that the customer purchases a used, ex demo or second hand machine or tool the warranty is specific to the item and will be made clear on the quotation
5.7 To the extent possible the Supplier will pass onto the Customer the benefit of any warranty provided by the supplier of any component of the Goods.
5.8 Except as provided in clauses 5.3 and 5.4 to the fullest extent permissible by law, the Supplier excludes all conditions and warranties implied by statute, general law or custom.
5.9 To the fullest extent permitted by law, the Supplier excludes and expressly disclaims any and all liability for any loss, expense, damage or claim suffered or incurred by the Customer (whether direct, indirect or consequential) arising in any way out of use of the Goods, including but not limited to, lost profits, consequential damages or loss, costs and damages sustained or incurred directly by the Customer or as a result of a claim by a third party.
5.10 To the extent that the Supplier is not permitted by law to exclude liability in accordance with clauses 5.8 and 5.9 the Customer agrees that the Suppliers liability for any loss, expense, damage or claim suffered or incurred by the Customer (whether direct, indirect or consequential) arising from or in connection with the provision of the Goods, or any negligent act or omission of the Supplier, its officers, employees, contractors or agents, including but not limited to, lost profits, costs and damages sustained or incurred as a result of a claim by a third person or liability for breach of any express term of these Conditions, or liability for breach of any statutory or regulatory condition, is limited to, at the sole discretion of the Supplier:
5.10.1 in the case of goods:
(A) the replacement of the goods or the supply of equivalent goods;
(B) the payment of the cost of replacing the goods or of acquiring equivalent goods;
(C) the repair of the goods; and
5.10.2 in the case of services:
(A) supplying the services again; or
(B) providing for the cost of having the services provided again.
5.11 The warranty provided in clause 5.4 does not include the labour cost associated with the replacement or repair of the Goods.
5.12 The warranty provided in clause 5.4 for workmanship, labour, and telephone support is available during normal business hours 7am - 4:30pm. After hours warranty or phone support will be charged at the Suppliers Standard rates for call outs.
5.13 The Supplier is not liable for any loss caused to the Customer for inability to supply Goods by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotion, acts of God or any other activity beyond the Suppliers control.
5.14 Nothing in these Terms and Conditions shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of the Goods all or any of the provisions of the Competition and Consumer Act 2010 or any relevant State or Federal legislation which by law cannot be excluded, restricted or modified by agreement.
5.15 Unless stated or agreed in writing by the Supplier, the Customer is responsible for assessing any ‘risk’ to its employees or facilities from the operation of the Goods. A risk assessment is available by the Supplier but it does not constitute a risk assessment based upon Customer’s operation of the Goods. The Customer must satisfy itself that its own procedures do not increase any risk. In the event that the Goods represents part of a project and the Customer is purchasing or using safety systems supplied by others, the Supplier may request a waiver to be signed whereby the Customer assumes all risks, losses and liability, of any nature whatsoever, in connection with the acquisition, installation, use, operation and maintenance of the Goods without a Supplier provides safety package. In the event that the Customer purchases a turn key or ‘system with safety’ the Supplier will supply in accordance with the agreed terms and conditions. Once the Goods are installed, tested and commissioned the Customer assumes full responsibility for safe operation of the Goods.
6. Delivery, Claims and Returns
6.1 The Supplier will use all reasonable endeavours to meet the agreed Delivery Date however, the Customer agrees that the Supplier shall not be liable for any loss or damage, however it arises, if the Goods are not delivered or performed by the agreed Delivery Date.
6.2 The Customer shall advise the Supplier in writing of any claims:
6.2.1 in respect of deficiency of quantity or in respect of loss or damage that has occurred to the Goods while they are in the custody of the Supplier or if applicable the Supplier’s carrier within 14 days of receipt of the Goods; and
6.1.2 for non-delivery where the Suppliers carrier was to deliver the Goods within 14 days of the agreed delivery time or if there was no agreed delivery time within 14 days of the reasonable delivery time.
6.3 Subject to the Australian Consumer Law if the Customer does not advise the Supplier as set out in clause 6.2 the Supplier shall not be obliged to take any action in respect of that deficiency loss or damage or non-delivery.
6.4 The Supplier shall not be obliged to accept returns of any Goods but may in its absolute discretion subject to mandatory legislative requirements accept the return of particular Goods on whatsoever conditions the Supplier may determine.
7. Intellectual Property
7.1 The Customer shall treat all information disclosed to it by or on behalf of the Supplier or acquired by the Customer concerning the Supplier or the Goods as the Suppliers confidential information and shall not use or disclose the same except:
7.1.1 to the extent necessary to make effective use of the Goods;
7.1.2 to obtain professional advice concerning these Terms and Conditions;
7.1.3 to the extent disclosure is required by law;
7.1.4 to the extent that any such information shall become public knowledge other than through the Customers act or omission.
7.2 All intellectual property (including copyright) in all plans, designs, drawings, and text (including specifications) which are made available to the Customer shall be regarded as owned by the Supplier and shall be delivered up to the Supplier on demand.
7.3 The Customer acknowledges that no intellectual property licence is granted by the Supplier to the Customer.
8. Waiver
8.1 Waiver of any provision or failure by the Supplier to enforce any of these Terms and Conditions in respect of any Breach by the Customer shall not be construed as a waiver of any of the Suppliers rights or a waiver of the Suppliers right to enforce the term in respect of that Breach in the future.
8.2 The only person authorised to waive a Breach by the Customer is the Managing Director and the Customer shall not purport to rely nor shall they rely on a waiver purportedly given by the Supplier by any other person.
9. Novation
9.1 Any Agreement cannot be assigned by the Customer without the Suppliers prior agreement in writing.
9.2 The Customer shall consent to such assignment or novation of any Agreement as the Supplier requests.
10. Customer Warranty and Indemnity
10.1 The Customer warrants that it has acted honestly, reasonably and in good faith to the Supplier in disclosing to the Supplier all information which may have materially affected the Suppliers decision to supply the Goods to the Customer pursuant to a credit facility and on these Terms and Conditions.
10.2 To the maximum extent permitted by law the Customer is liable to the Supplier for and agrees to indemnify and keep the Supplier indemnified from and against:
10.2.1 any loss damage of any kind to the extent caused by or resulting from any act or omission of the Customer its employees, agents and contractors;
10.2.2 any personal injury death or loss of or damage to real or personal property to the extent caused or contributed to by the Customer its employees, agents and contractors;
10.2.3 any loss of profit or anticipated profits, economic loss, loss of business opportunity, loss or damage resulting from wasted management time or any special incidental indirect or other consequential loss or damage caused or contributed to by the Customer its employees, agents and contractors.
10.3 To the fullest extent permitted by law, Part 4 of the Civil Liability Act 2002 (NSW) is excluded in relation to all and any rights obligations and liabilities of either party under or in connection with these Terms and Conditions whether such rights obligations or liabilities are sought to be enforced in contract (including breach of contract), in tort (including negligence), in equity, under statute or otherwise at law.
11. Costs
11.1 The Customer must pay for its own legal, accounting and business costs and all costs incurred by the Supplier relating to any Breach by the Customer.
11.2 The Customer agrees to pay the Suppliers costs and disbursements incurred in perusing any recovery action or any other claim or remedy against the Customer including collection costs, debt recovery fees, and legal costs on a full indemnity basis in relation to any Breach and whether or not the pursuit of the recovery action, claim or remedy is successful.
11.3 The Customer acknowledges and agrees that payment received by the Supplier from the Customer will be applied by the Supplier as follows:
11.3.1 firstly in payment of any and all collection costs and legal costs in accordance with clauses 11.1, 11.2 and 12.9;
11.3.2 secondly in payment of amounts due pursuant to clause 4.5.2;
11.3.3 thirdly in payment of amounts due pursuant to clause 4.5.1; and
11.3.4 fourthly in payment of all other amounts due in respect of Orders that have become Agreements.
12. Retention of Title and Personal Property Securities Act 2009 (“PPSA”)
12.1 Property and title in the Goods passes to the Customer only when the Customer has paid the Supplier in full for the Goods and until that time the Goods remain the property of the Supplier and must be stored separately by the Customer to enable them to be readily identified as the property of the Supplier and be able to be crossed referenced to particular invoices issued by the Supplier.
12.2 Risk in the Goods passes to the Customer on delivery and the Customer shall maintain adequate insurance prior to payment in full by the Customer to the Supplier for the Goods against the loss of the Goods.
12.3 If the Customer sells or otherwise disposes of any of the Goods prior to the date on which the tile to the Goods passes from the Supplier to the Customer pursuant to clause 12.1:
12.3.1 that part of the proceeds of any sale or dealing as is equal to the amount payable by the Customer to the Supplier for those Goods (“Suppliers Entitlement”) must be held by the Customer in a separate identifiable account on behalf of the Supplier; and
12.3.2 the Customer must account to the Supplier for the Suppliers Entitlement.
12.4 To the extent permitted by law the Customer and the Supplier agree that:
12.3.1 these Terms and Conditions create a security interest in favour of the Supplier for the purposes of the PPSA; and
12.3.2 the Supplier may register its security interest as a purchase money security (as defined in the PPSA) on an indefinite basis on the Personal Property Securities Register (“PPSR”) in accordance with the PPSA.
12.5 The Customer agrees to supply information, execute such documents and take whatever action is reasonably required by the Supplier to protect its security interest and ensure it has the priority required by the Supplier which may include assisting the Supplier to register, maintain and update its security interest on the PPSR, give any notification in connection with the security interest and exercise its rights in connection with the security interest.
12.6 The Customer agrees:
12.6.1 to waive its right under section 157 of the PPSA to receive a copy of the verification statement relating to the security interest created by these Terms and Conditions;
12.6.2 that to the extent permitted by the PPSA the following provisions of the PPSA will not apply and are contracted out of: section 95 (to the extent that it requires the secured party to give notices to the grantor); section 96; section 118 (to the extent that it allows a secured party to give notices to the grantor); section 121(4); section 125; section 130; section 132(3)(d); section 132(4); section 135; section 142 and section 143; and
12.6.3 that the following provisions of the PPSA will not apply and that the Customer will have no rights under them: section 127; section 129(2) and (3); section 130(1); section 132; section 134(2); section 135; section 136(3), (4) and (5); and section 137.
12.7 The Customer agrees that it has no right to use or otherwise deal with the Goods if:
12.7.1 the Customer becomes, threatens or resolves to become or is in jeopardy (on the reasonable belief of the Supplier) of becoming subject to any form of insolvency or administration;
12.7.2 the Customer is in Default and fails to remedy such default within five (5) Business Days after receiving a notice from the Supplier requiring the default to be remedied; or
12.7.3 the credit terms and or the terms of supply constituted by these Terms and Conditions are terminated for any reason.
12.8 If the Customer for any reason loses its right to deal with the Goods then the Customer must on the written demand of the Supplier return the Goods to the Supplier. If the Customer does not return the Goods to the Supplier within 24 hours after receipt of the demand then without limiting any other rights or remedies the Supplier may have the Supplier may:
12.8.1 as agent of the Customer enter the premises where the Goods are located and do all things necessary to retake possession of the Goods without liability for trespass or any resulting damage; and
12.8.2 keep or resell any of the Goods repossessed.
12.9 The Customer:
12.9.1 is liable for all costs associated with the exercise by the Supplier of its rights pursuant to clause 12.8 which costs are payable to the Supplier on demand;
12.9.2 indemnifies and agrees to keep indemnified the Supplier against all actions, claims, demands, proceedings, liabilities, losses, damages, expenses and costs (including legal costs on a full indemnity basis) that may be brought against the Supplier or which the Supplier may pay, sustain or incur as a direct or indirect result of the exercise by the Supplier of its rights pursuant to clause 12.8; and
12.9.3 irrevocably grants to the Supplier the right to enter upon the Customers property or premises without notice and without being in any way liable to the Customer or to any third party if the Supplier has cause to exercise any of their rights pursuant to section 123 and/or section 128 of the PPSA and the Customer shall indemnify the Supplier from any claims made by any third party as a result of such exercise.
13. Further Information
13.1 The Customer agrees to comply with any request by the Supplier to provide further information at any time for the purpose of assessing or reassessing the Customers creditworthiness including an updated credit application.
13.2 If the Customer is a corporation (with the exception of a public listed company) it must advise the Supplier of any alteration to its corporate structure (e.g. change of directors, shareholders or its constitution).
13.2 If the Customer is a partnership it must not alter its partnership without advising the Supplier.
13.3 If the Customer is a trustee of a trust the Customer warrants to the Supplier that the Customer:
13.3.1 these Terms and Conditions shall apply to any Agreement in its capacity as trustee and in its personal capacity;
13.3.2 has the right to be indemnified out of the assets of the trust;
13.3.3 has the power under the trust deed to enter into Agreements; and
13.3.4 will not retire as trustee of the trust or appoint any new or additional trustees without first advising the Supplier in writing.
14. Jurisdiction
14.1 The Customer acknowledges and agrees that these Terms and Conditions will be governed by the laws of New South Wales and the Commonwealth of Australia which are in force in New South Wales.
14.2 The Supplier and the Customer submit to the non-exclusive jurisdiction of the Courts of New South Wales and the relevant federal courts and courts competent to hear appeals from those courts.
15. Severance
15.1 If any provision of these Terms and Conditions and not enforceable in accordance with their terms other provisions which are self-sustaining are and continue to be self-sustaining in accordance with their terms.
15.2 If any part of these Terms and Conditions are invalid or unenforceable that part is deleted and the remainder of the Terms and Conditions remain effective.
16. Variation
16.1 The Customer agrees that these Terms and Conditions may be varied, added to or amended by the Managing Director of the Supplier at any time by written notice to the Customer and/or by publication on the Suppliers website.
17. Entire Agreement
17.1 These Terms and Conditions constitute the entire agreement between the parties relating in any way to its subject matter and an Agreement.
17.2 No oral explanation or information provided by a party to another affects the meaning or interpretation of these Terms and Conditions or constitutes any collateral agreement, warranty or understanding.
18. Service of Notices
18.1 The parties agree to accept service of any notice or document required or which may be made or any originating process which may be issued by prepaid post at the address stated in these Terms and Conditions or any other address later notified by either party to the other.