TERMS & CONDITIONS OF TRADE
PENNY INDUSTRIES PTY LTD T/A PENNY INDUSTRIES and/or PENNY FABRICATIONS.
DEFINITIONS
In these Terms and Conditions of Sale: “Supplier” means Penny Industries Pty Ltd T/A Penny Industries and/or Penny Fabrications (ACN 167 013 005) its successors and assigns or any person acting on behalf of and with the authority of Penny Industries Pty Ltd T/A Penny Industries and/or Penny Fabrications. “Purchaser” means any persons, companies or entities or persons acting on behalf of and with the authority of the Purchaser who:- (i) Is the other party to a contract for manufacture, sale or supply of goods; (ii) Is named in or receives a quotation or sales invoice for the manufacture or sale of goods or the provision of services by the Supplier; (iii) Purchases goods from the Supplier: or (iv) Requests the Supplier to provide designs/drawings or specifications or manufacturing proposals for the manufacture of a product.
GENERAL
(a) These Conditions of Sale apply in respect of all offers to sell, quotations made, contracts secured and other commercial transactions for the supply of goods and services by the Supplier. (b) These Conditions of Sale shall coexist with and be read in conjunction with any Special Conditions of Sale except where the latter specifically vary or override these General Conditions or any of them. (c) Except as otherwise expressly agreed upon in writing between the parties, the terms and conditions contained herein shall apply notwithstanding any provisions to the contrary which may appear on the order form or other documents issued by the Purchaser. (d) The Purchaser acknowledges and agrees to these conditions of sale upon making a product inquiry and upon placement of an order for supply and upon acceptance of the credit granted for payment purposes and upon acceptance of the goods supplied and also upon receipt of the invoice. Each stage is a specific separate acceptance by the Purchaser of the Suppliers Conditions of Sale. (e) The Supplier reserves the right to formally change its Conditions of Sale from time to time. Where more than one Purchaser has entered into this agreement, the Purchasers shall be jointly and severally liable for full payment for the goods and services.
QUOTATIONS/ORDERS
(a) Unless previously withdrawn a quotation is valid for thirty (30) days (excluding materials) or such other period as is stated therein and is subject to withdrawal or change at any time until the Purchaser’s order has been received and accepted by the Supplier. (b) The Supplier shall not be bound by any conditions attached to the Purchaser’s order or acceptance of the quotation, unless the Supplier in writing accepts such conditions. If the Purchaser accepts the quotation by delivery of an order form or document, which stipulates or purports to impose conditions, such conditions shall not be applicable to the contract resulting from the quotation without such written acceptance.
TERMS OF PAYMENT AND PRICES
(a)Terms will be Net Cash/Cheque/Direct Debit/EFTPOS or other accepted payment types within the period stated on the invoice to the Purchaser. (b)Any price list published by the Supplier may be changed or altered by the Supplier at any time without notice to the Purchaser and thereafter the Supplier shall not be bound by the price list so altered. A price list published by the Supplier does not amount to an offer to sell the goods therein mentioned.
PAYMENTS AND CREDIT INQUIRIES
(a) All quotations and all payments made for goods must be in Australian currency. (b) Payment for any goods sold shall become immediately due in full upon default by the Purchaser in payment for any of the goods which the Supplier has sold to the Purchaser and the Supplier shall be entitled to suspend the supply of further goods to the Purchaser. (c) The Purchaser hereby gives the Supplier the authority to make inquiries from credit reporting agencies as to the credit and financial responsibility of the Purchaser and or its partners or Directors as required by the Supplier from time to time. Any director or shareholder (owning at least 15% of the shares) of the Purchaser company shall be personally liable for the performance of the Purchaser’s obligations under these terms and conditions. At the Supplier’s sole discretion, a deposit may be required.
DIMENSIONS AND SPECIFICATIONS
Unless otherwise stated all specifications, drawings and particulars of weights, dimensions and performance characteristics submitted are approximate only. Descriptions and illustrations contained in catalogues, price lists and other written material are intended merely to present a general idea of the goods described therein and none of these shall form part of the contract.
DELIVERIES
(a) Any delivery dates and / or times quoted are given in good faith but unless otherwise stated the Supplier will not be held responsible for any delay arising from causes beyond its reasonable control. The Purchaser’s receipt of goods shall constitute a waiver of any claim for delay. (b) The Supplier shall have no liability whatsoever for any direct, indirect or consequential damage or loss arising from non-delivery or any delays in delivery including off loading or misdirection in transit or when the goods are carried in the Suppliers own vehicles or in Contractors vehicles retained to deliver such goods.
OTHER SUPPLIERS
Both the Supplier and the Purchaser acknowledge that to satisfy a contract in whole or part the Supplier may manufacture the goods or may purchase them outright or may order their manufacture or may purchase the rights of a third party for the supply of goods of similar description.
WARRANTIES AND GUARANTEES
(a) The Purchaser shall immediately notify the Supplier upon discovery of any defect in the goods manufactured or in materials supplied by the Purchaser to the Supplier for purposes of work. The Purchaser shall not carry out any remedial work to alleged defective goods without first obtaining the consent of the Supplier so to do. (b) The only conditions and warranties which are binding on the Supplier in respect of the state, quality or condition of the goods supplied by it to the Purchaser are those imposed by the Trade Practices Act and the Fair Trading Act. (c) Breach of such conditions or warranties shall at the Supplier’s option be limited to and completely discharged by:- (i) Any remedy provided by such statute, or (ii) The replacement of the goods or re-supply of same by the Supplier, or (iii) The repair of the goods, or (iv) The payment of the cost of replacement of the goods, or (v) The payment of the cost of repair of the goods and otherwise all other conditions and warranties whether express or implied by Law in respect of the state, quality or condition of the said goods which may apart from this clause be binding upon the Supplier are hereby expressly excluded and negated. (d) The Purchaser expressly acknowledges and agrees that the Supplier is not liable for any advice given by its agents or employees in relation to the suitability for any purpose of goods or materials supplied by the Supplier and all such advice relied upon is at the Purchaser’s risk.
ACCEPTANCE, CLAIMS, RETURNS AND SURCHARGES
(a) The Purchaser shall be deemed to have accepted the goods to be of the description, quality and quantity ordered unless particulars of any claim are notified to the Supplier in writing within 7 days after arrival of goods at the place of delivery, except claims for non delivery which must be made in writing within 14 days from the date of invoice. (b) The Supplier will not accept return of goods unless such return is authorized by the Supplier and the goods have appropriate documentation stating reasons for the claim referring to the Invoice Number and date. A Re-stocking fee of 15% may be charged to the Purchaser where applicable. (c) Non standard products or Products specially purchased, manufactured, machined or cut to size or to Purchaser’s specifications, are not returnable. (d) Where the Purchaser returns goods of his own volition, the Supplier will not accept freight charges unless authorized by them.
LIABILITY
(a) Except as provided by the preceding clauses, the Supplier shall not be under any liability, whether in contract or otherwise in respect of defects in goods delivered or for any injury, damage or loss resulting from such a defect or from any work done in connection there with except to the extent that any statute applicable to these conditions prevents the exclusion, restriction or modification of such condition or warranties. (b) Not withstanding any other provisions of the contract the Supplier shall not be liable to the Purchaser for any loss of profit or of contract howsoever arising nor shall the Supplier be under any liability whether in contract or otherwise nor for any injury, damage or loss whether consequential or otherwise save as is expressly provided in these conditions.
TAXES GOVERNMENT CHARGES AND GST
All Taxes, Government charges and GST applicable to any sales transaction(s) will be charged and invoiced to the Purchaser, on the basis of those applicable at the time of the sales transaction.
RISK / PROPERTY
(a) Risk in the goods passes to the Purchaser immediately upon delivery. The point of delivery is as shown in the body of any quotation, invoice or delivery docket and if not shown therein shall, be subject to any other agreement between the Purchaser and the Supplier. (b) Unless the Supplier shall otherwise expressly specify in writing all goods sold by the Supplier to the Purchaser shall be and will remain the property of the Supplier until the Purchaser has paid in full all that is owing to the Supplier. (c) Should the Purchaser default in payment the Supplier may enter the Purchaser’s premises and retake possession of and permanently retain any goods for which full payment has not been received by the Supplier and may revoke all liability of the Purchaser on the contract of sale and delivery of such goods. (d)Ownership of property in the goods, whether or not joined with other goods or into an end product in any manner, shall not pass until the Supplier has received full payment from the Purchaser for all monies due. (e) The Supplier shall not be under any liability, whether in contract or otherwise in respect of any item, vehicle, product or the like, that the Purchaser has supplied to have repaired, worked on, customized, stored, at the Suppliers work location. Any vehicles that are left at the Suppliers workshop are required to be insured by the Purchaser to satisfy damage, loss, theft, any repairs, and injury to persons, prior to arriving at the Suppliers workshop. The vehicle must be insured for alternate drivers, other than the Purchaser to allow for the Suppliers or its workers to operate the vehicle. The Supplier shall not be under any liability, whether in contract or otherwise in respect of any undesirable outcome, event or act of nature which negatively affects the Purchaser’s vehicle or possession.
TITLE
The Supplier and Purchaser agree that ownership of the goods shall not pass until: (a)The Purchaser has paid the Supplier all amounts owing for the particular goods; and (b)The Purchaser has met all other obligations due by the Purchaser to the Supplier in respect of all contracts between the Supplier and the Purchaser. Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognized and until then the Supplier’s ownership or rights in respect of the goods shall continue. It is further agreed that: (a)Where practicable the goods shall be kept separate and identifiable until the Supplier shall have received payment and all other obligations of the Purchaser are met; and (b)Until such time as ownership of the goods shall pass from the Supplier to the Purchaser the Supplier may give notice in writing to the Purchaser to return the goods or any of them to the Supplier. Upon such notice the rights of the Purchaser to obtain ownership or any other interest in the goods shall cease; and (c)The Supplier shall have the right of stopping the goods in transit whether or not delivery has been made; and (d)If the Purchaser fails to return the goods to the Supplier then the Supplier or the Supplier’s agent may enter upon and into land and premises owned, occupied or used by the Purchaser, or any premises as the invitee of the Purchaser, where the goods are situated and take possession of the goods; and (e)The Purchaser is only a bailee of the goods and until such time as the Supplier has received payment in full for the goods then the Purchaser shall hold any proceeds from the sale or disposal of the goods on trust for the Supplier; and (f)The Purchaser shall not deal with the money of the Supplier in any way which may be adverse to the Supplier; and (g)The Purchaser shall not charge the goods in any way nor grant nor otherwise give any interest in the goods while they remain the property of the Supplier; and (h)The Supplier can issue proceedings to recover the price of the goods sold notwithstanding that ownership of the goods may not have passed to the Purchaser; and (i)Until such time that ownership in the goods passes to the Purchaser, if the goods are converted into other products, the parties agree that the Supplier will be the owner of the end products.
PERSONAL PROPERTY SECURITIES ACT 2009 (PPSA)
The Purchaser acknowledge that these Terms of Trade constitute a Security Agreement which creates (or may create) a Security Interest in favour of the Supplier and in all Personal Property previously supplied by the Supplier to the Purchaser (if any) and all after acquired Personal Property supplied to the Purchaser by the Supplier (or for the Purchaser’s account) to secure the payment from time to time and at a time, including future advances. The Purchaser agrees to grant to The Supplier a Purchase Money Security Interest. (a) The Purchaser accepts, acknowledges and agrees that: pursuant to the retention of title clause in clause 12.1, the Supplier obtains a Security Interest in all Goods and Services supplied by the Supplier to the Purchaser on credit, including any Commingled Goods; the Supplier can, without notice to the Purchaser, seek Registration of its Security Interest on the PPSR; and Pursuant to section 275(6) of the PPSA, the Purchaser agrees the Supplier is not required to disclose to an interested person information pertaining to the Supplier’s Security Interest unless required to do so pursuant to the PPSA or at law generally. (b)The Purchaser will: sign any further documents and/or provide any further information (which information the Purchaser warrants to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to enable perfection of its Security Interest or registration of a Financing Statement or Financing Change Statement on the PPSR; not register a Financing Change Statement or make a demand to alter the Financing Statement pursuant to section 178 of the PPSA in respect of the Goods, including any services, without the prior written consent of the Supplier; give the Supplier not less than 14 days written notice of any proposed change in their name and/or any other changes in their details (including but not limited to, changes in their address, facsimile number, email address, trading name or business practice); indemnify the Supplier against any costs the Supplier incurs in perfecting and maintaining its perfected Security Interest in the Goods or such other Personal Property under the PPSA and any costs the Supplier may incur in the course of enforcing any of its rights under this Agreement, the PPSA or at law generally; procure from any persons considered by the Supplier to be relevant to its security position, such agreement and waivers as the Supplier may at any time reasonably require; (c)To the extent permitted by the PPSA the Purchaser waives its rights to: receive a notice under any of subsections 95(1), 121(4), 129(2) and 130(1) and sections 135 and 157 of the PPSA; receive a statement that includes the information referred to in paragraph 132 (3)(d) of the PPSA ; receive a statement under subsection 132(4) of the PPSA; redeem Collateral after default under section 142 of the PPSA unless the lessor agrees in writing to such redemption; reinstate the Security Agreement under section 143 of the PPSA ; and give a Notice of Objection under section 137 of the PPSA.
RIGHT OF REMOVAL
The Purchaser irrevocably grants to the Supplier its agents and servants an unrestricted right and license without notice, to enter premises occupied by the Purchaser, to identify and remove any goods which are the property of the Supplier. In terms of these conditions as aforesaid and without in any way being liable to the Purchaser or any person claiming through the Purchaser, the Supplier shall have the right to sell or dispose of any of such goods so removed or otherwise in its sole discretion and shall not be responsible for any loss occasioned thereby.
TERMINATION OF NEGOTIATION OR ORDER
Without prejudice to any other rights the Supplier may have, the Purchaser shall pay the Supplier for all costs and expenses incurred and commitments made in connection with the performance of the order or the provision of designs/drawings or specifications or proposals plus a reasonable profit thereon, where: (a) A Purchaser requests the Supplier to provide designs or specifications or manufacturing proposals for the manufacture of a product, or (b) Any order resulting from a quotation is terminated for any just cause.
PROGRESSIVE DELIVERY
The Supplier may deliver any of the goods progressively and shall then be entitled to payment progressively for the items of goods delivered in such amounts, as the Supplier shall reasonably determine. If the Purchaser fails to make a progress payment within the Supplier’s normal trading terms, then the Supplier shall be entitled to withhold manufacture or delivery of the remainder of the goods without incurring liability for such delay.
INTELLECTUAL PROPERTY
(a)All drawings, illustrations, display material, specifications and other literature and materials for or relating to the goods and whether or not supplied by or on behalf of the Supplier to the Purchaser shall remain the exclusive property of the Supplier and shall not be transferred to any other party without the previous written consent of the Supplier. The Purchaser shall not use, reproduce or impart any information contained therein to any third party without the previous written consent of the Supplier. (b) Where the Supplier has followed a design, sample or instruction furnished or given by the Purchaser, the Purchaser shall indemnify the Supplier against all damages, penalties, costs and expenses to which it may become liable through any work required to be done in accordance with those instructions involving an infringement of a patent, trademark, registered design, copyright or common law right.
DEFAULT AND CONSEQUENCES OF DEFAULT
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and one half percent (2,5%) per calendar month and such interest shall compound monthly at such a rate after as well as before any judgment. If the Purchaser defaults in payment of any invoice when due, the Purchaser shall indemnify the Supplier from and against all costs and disbursements incurred by the Supplier in pursuing the debt including legal costs on a solicitor and own client basis and the Supplier’s collection agency costs. Without prejudice to any other remedies the Supplier may have, if at any time the Purchaser is in breach of any obligation (including those relating to payment), the Supplier may suspend or terminate the supply of goods to the Purchaser and any of its other obligations under the terms and conditions. The Supplier will not be liable to the Purchaser for any loss or damage the Purchaser suffers because the Supplier has exercised its rights under this clause. If any amount remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00) shall be levied for administration fees which sum shall become immediately due and payable. Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Purchaser which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable in the event that: (a)Any money payable to the Supplier becomes overdue, or in the Suppliers opinion the Purchaser will be unable to meet its payments as the fall due; or (b)The Purchaser becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or A receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Purchaser or any asset of the Purchaser.
JURISDICTION
The contract shall in all respects be construed to operate as an Australian contract and in conformity with State and or Federal laws applicable to contract. Any clause headings hereto shall not affect the construction hereof. If any of the provisions of the contract are unlawful or invalid under any applicable statute or rule of law, they are to that extent to be deemed omitted.
DISCLAIMER
All reasonable care has been taken to provide correct and accurate information in all company catalogues, brochures, instruction manuals and advertising material. However, the Supplier makes no representation and gives no warrant or guarantee that the company’s printed material contains no errors or omissions. The Supplier excludes all liability that could arise from omissions or unintended inclusion of incorrect information, statements and recommendations in all company written material to the extent permitted by law. The Supplier manufactures a broad range of products on a subcontract basis; and the use of these products for any purpose other than those for which they were designed is not recommended by the Supplier and such use is strictly at the risk and discretion of the user. All prices and specifications are subject to change without notice.
UNPAID SUPPLIER’S RIGHTS
Where the Purchaser has left any item with the Supplier for repair, modification, exchange or for the Supplier to perform any other service in relation to the item and the Supplier has not received or been tendered the whole of the price, or the payment has been dishonored, the Supplier shall have: (a)A lien on the item; (b)The right to retain the item for the price while the Supplier is in possession of the item; (c)A right to sell the item The lien of the Supplier shall continue despite the commencement of proceedings, or judgment for the price having been obtained.
PRIVACY ACT
The Purchaser and/or the guarantor/s (herein referred to as the Purchaser) agree for the Supplier to obtain from a credit reporting agency a credit report containing personal credit information about the Purchaser in relation to credit provided by the Supplier. The Purchaser agrees that the Supplier may exchange information about the Purchaser with those credit providers either named as trade referees by the Purchaser or named in a consumer credit report issued by a credit reporting agency for the following purposes: (a)To assess an application by Purchaser; and/or (b)To notify others credit providers of a default by the Purchaser; and/or (c)To exchange information with other credit provider as to the status of this credit account, where the Purchaser is in default with other credit providers; and/or (d)To assess the credit worthiness of the Purchaser and /or guarantor/s The Purchaser agrees that personal credit information provided may be used and retained by the Supplier for the following purposes and for other purposes as shall be agreed between the Purchaser and the Supplier or required by law from time to time: (a)Provision of goods; and/or (b)Marketing of goods by the Supplier, its agents or distributors in relation to the goods; and/or (c)Analyzing, verifying and/or checking the Purchasers credit, payment and/or status in relation to provision of goods; and/or (d)Processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Purchaser; and/or (e)Enabling the daily operation of the Purchasers account and/or the collection of amounts outstanding in the Purchasers account in relation to the goods The Supplier may give information about the Purchaser to a credit reporting agency for the following purposes: (a)To obtain a consumer credit report about the Purchaser; and/or (b)Allow the credit reporting agency to create or maintain a credit information file containing information about the Purchaser
GENERAL
If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired These terms and conditions and any contract to which they apply shall be governed by the laws of Queensland and are subject to the jurisdiction of the courts of Queensland The Supplier shall be under not liability whatsoever to the Purchaser for any indirect loss and/or expense (including loss of profit) suffered by the Purchaser arising out of a breach by the Supplier of these terms and conditions In the event of any breach of this contract by the Supplier the remedies of the Purchaser shall be limited to damages which under no circumstances shall exceed the price of the goods The Purchaser shall not be entitled to set off against or deduct from the price any sums owed or claimed to be owed to the Purchaser by the Supplier The Supplier may license or sub-contract all or any part of its rights and obligations without the Purchaser’s consent The Supplier reserves the right to review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which the Supplier notifies the Purchaser of such change Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party The failure by the Supplier to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect the Supplier’s rights to subsequently enforce that provision.
