TERMS OF TRADE
1) In these Terms of Trade:
a) Ai means Aluminium Industries of Australia Pty Ltd (ACN 072 558 500), EDGE Architectural Glazing Systems (a trading name of Ai), Pivotech (a trading name of Ai), Comtruk (a trading name of Ai) and Tasman Bull Bars (a trading name of Ai).
b) Goods means the goods sold and the services provided by Ai to the Customer.
c) GST means the Goods and Services Tax payable on taxable supplies under the A New Tax System (Goods and Services Tax) Act 1999.
d) PPSA means the Personal Property Securities Act 2009.
e) Customer means the person or company placing an order for the purchase of Goods.
a) The Customer must pay for the Goods without deduction or set-off, whether legal or equitable, by the date stated on the invoice.
b) Unless otherwise stated, the prices for Goods are expressed on a GST exclusive basis. Where GST applies, then the Customer must pay the GST exclusive price plus GST.
c) Interest will be charged to the Customer on any overdue invoice on a daily basis at the rate prescribed under Section 2 of the Penalty Interest Act 1983 (Vic).
d) Ai may, in its discretion, issue an invoice in the form of a payment claim under the Building and Construction Industry Security of Payment Act 2002 (Vic).
a) Unless otherwise agreed, the Goods may be delivered to the Customer’s premises or other location nominated by the Customer (“Delivery Location”) at the Customer’s cost.
b) Where the Customer or its agent is not in attendance at Delivery Location, Ai may leave the Goods and is not responsible for any claims, damages, costs or expenses arising from this.
c) Where the Customer or its agent is unavailable to sign or does not sign the delivery docket provided by Ai, then Ai’s driver’s delivery record will be conclusive evidence of the delivery at the time and location specified in that record.
d) Risk in the Goods passes to the Customer on delivery.
4) Limitation of Liability
a) To the extent permitted by law, Ai excludes all conditions, warranties, terms and consumer guarantees implied by law (including the Australian Consumer Law) arising in connection with the supply of Goods.
b) To the extent permitted by law, Ai limits its liability to, in its discretion, replacing the Goods or supplying equivalent Goods.
c) The Customer acknowledges that it relies entirely on its own knowledge, skill and judgement in selecting Goods.
d) Ai will not be liable to the Customer for any loss caused wholly or partly by or arising out of any use of the Goods or any defect resulting from normal wear and tear or accident, misuse or other unsuitable or unauthorised use of the Goods, negligence or error in storing, maintaining or handling the Goods, incorrect installation or assembly of the Goods where Ai has not installed or assembled such Goods, modifications or changes to the Goods without Ai’s prior written authorisation or any other unauthorised act or fault by the Customer or a third party.
e) To the extent permitted by law, Ai excludes any liability in contract, tort (including negligence) or otherwise in connection with the Goods for indirect damage and loss including consequential loss and special, punitive and exemplary damages.
5) Recovery of Costs
The Customer must pay all costs and expenses (including all legal costs on an indemnity basis) which may be incurred by Ai or its agents in respect of the Customer in relation to any debt, the enforcement of Ai’s right to retaining title in the goods, and / or otherwise.
6) Retention of Title and Security
a) Title in the Goods will not pass to the Customer until Ai receives full and clear payment by the Customer for the Goods and all other monies owed by the Customer to Ai on any account whatsoever. Until title in the Goods passes to the Customer, the Customer holds the Goods on trust for Ai and must store them separately and prevent any deterioration to the Goods.
b) Despite paragraph (6a), the Customer may sell the Goods in the ordinary course of the Customer’s business at arm’s length. The Customer must not sell the Goods outside of the ordinary course of business or other than at arm’s length without Ai’s written permission. The Customer must always hold any proceeds of sale in a separate account on trust for Ai.
c) Goods are deemed to be dealt with by the Customer on a “first in first out” basis.
d) Where payment of any monies owed by the Customer to Ai is overdue, Ai, its employees or agents may repossess the Goods. The Customer authorises Ai, its employees or agents to enter the Customer’s premises or any premises occupied by the Customer or its agent for this purpose and indemnifies Ai in respect of any such entry.
e) The Customer charges all the Customer’s present and future acquired property including real property in favour of Ai to secure due and punctual payment of all monies owed by the Customer to Ai on any account whatsoever. The Customer agrees that Ai may lodge a caveat over any of its real property and agrees to execute a mortgage of its real property in registerable form if required by Ai.
f) The Customer agrees that Ai’s rights under these Terms of Trade are security interests within the meaning of the PPSA and that Ai is entitled to register these security interests on the Personal Property Securities Register. The Customer agrees that the provisions listed in section 115 of the PPSA of the PPSA do not apply (except for sections 120 and 121 of the PPSA which do apply) and waives the Customer’s rights to receive a notice of registration under section 157 of the PPSA.
g) Nothing in this clause will affect Ai’s entitlement to maintain an action against the Customer in respect of payment for the Goods or prejudice any of Ai’s other rights and remedies.
a) Ai is entitled to revoke or vary any credit terms granted to the Customer at its discretion without prejudice to any of Ai’s prior rights or obligations.
b) Ai reserves the right to cancel an order with the Customer (to the extent such order remains unperformed) in whole or in part without liability to Ai or stop any delivery of Goods and all amounts due to Ai will be immediately payable by the Customer.
a) The Customer authorises Ai, its employees and agents to make enquiries, including of the Customer’s trade references, bankers and other credit providers and credit reporting agencies, to investigate the creditworthiness of the Customer. Subject to the Privacy Act 1998 (Cth), the Customer authorises Ai to disclose information it has about the Customer or, if the Customer is a company, the customer’s directors and shareholders, for this purpose.
9) Governing Law
a) These Terms of Trade are governed by and must be construed in accordance with the laws of Victoria.
b) The Customer agrees to submit to the non-exclusive jurisdiction of the courts of Victoria.
You warrant to us that any designs, drawings, take offs or specifications provided by you will not infringe any third party intellectual property rights. You indemnify us for any and all loss, cost and damage that we may suffer as a result of your breach of this warranty.
You warrant to us that you have not relied on any service involving skill and judgement, or on any advice, recommendation or assistance provided by us in relation to your design, drawings or specifications.
We will not be liable for any direct, indirect or consequential losses or expenses suffered by you or any third party, however caused, including but not limited to loss of turnover, profits, business or goodwill, or any liability to any other party, except to the extent of any liability imposed by the Competition and Consumer Act 2010 (Cth).
We will not be liable to you for any products or systems that are not suitable for your purpose as a result of incorrect measurements, designs, specifications or drawings provided by you.
Unless we state otherwise, we manufacture our products and systems to comply with Australian Standards [refer to the Pivotech technical manuals for a complete list of the relevant Australian Standards].
Except as specifically stated, or as contained in any express warranty provided, any contract with you does not include by implication any other term, condition or warranty in respect of the quality, merchantability, acceptability, fitness for purpose, condition, description, assembly, manufacture, design or performance of our products or any contractual remedy for their failure.