1. The terms of payment are strictly cash on delivery or, where credit has been granted, payment terms are strictly thirty (30) days (or such other period as nominated by the supplier herein) from the end of month of date of invoice and payment is due and payable on that date. Ullrich Aluminium Pty Ltd ABN 77 001 697 445 and their related bodies corporate (as that term is defined in the Corporations Act 2001) (Supplier) may, at any time, upon the provision of 48 hours’ written notice to the Applicant, vary the terms and conditions of trade. Payments made by credit card will attract a surcharge.
2. If the Applicant does not agree with the variations proposed by the Supplier, they must notify the Supplier in writing within fourteen (14) days from receipt of the written notice that the variations are not agreed to. The Supplier and/or the Applicant will then be at liberty to suspend/withdraw credit facilities if no agreement can be reached between the parties regarding the proposed variations. Absent notice from the Applicant, the varied terms and conditions of trade may be deemed accepted. Clerical errors (such as spelling mistakes or grammatical errors) may be subject to correction without notification.
3. The Applicant must check all invoices and advise the Supplier of any errors or omissions within seven (7) days of receipt. Failing advice from the Applicant that the invoice contains any errors or omissions, the invoice may be deemed accepted by the Supplier.
4. Should the Applicant not pay for the goods or services supplied by the Supplier in accordance with the credit terms as provided herein, or as agreed in writing by the Supplier and the Applicant from time to time, after issuing a written demand to the Applicant demanding payment within fourteen (14) days, the Supplier will be entitled to charge an administration fee of 10 percent of the amount of the invoice payable.
5. The Applicant acknowledges and agrees that this agreement will be governed by the laws of New South Wales, and the laws of the Commonwealth of Australia which are in force in New South Wales.
6. The Applicant acknowledges and agrees that any contract for the supply of goods or services between the Supplier and the Applicant is formed at the address of the Supplier.
7. The parties to this agreement 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.
8. The Applicant charges in favour of the Supplier all of its estate and interest in any real property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.
9. The Applicant charges in favour of the Supplier all of its estate and interest in any personal property that the Applicant owns at present and in the future with the amount of its indebtedness hereunder until discharged.
10. The Applicant appoints as its duly constituted attorney the Supplier’s company secretary from time to time to execute in the Applicant’s name and as the Applicant’s act and deed any real property mortgage, bill of sale or consent to any caveat the Supplier may choose to lodge against real property that the Applicant may own in any Land Titles Office in any state or territory of Australia, even though the Applicant may not have defaulted in carrying out its obligations hereunder, upon written notice and demand to the Applicant (in the event that there is no default by the Applicant in carrying out its obligations hereunder).
11. Where the Applicant has previously entered into an agreement with the Supplier by which the Applicant has granted a charge, mortgage or other security interest (including a security interest as defined in the Personal Property Securities Act 2009 (PPSA)) over real or personal property, those charges, mortgages or other security interests will continue and co-exist with the obligations and security interests and the terms which directly or indirectly create rights, powers or obligations in respect thereto will continue to co-exist with the obligations and security interests created in this agreement and will secure all indebtedness and obligations of the Applicant under this agreement. The Supplier may, at its election, upon the provision of 48 hours’ written notice, vary the terms of such previous charges, mortgages or other securities to reflect the terms herein.
Purpose of credit
12. The Applicant acknowledges and agrees that the credit to be provided to the Applicant by the Supplier is to be applied wholly or predominantly for commercial purposes.
Formation of contract
13. Quotations made by the Supplier will not be construed as an offer or obligation to supply in accordance with the quotation. The Supplier reserves the right to accept or reject, at its discretion, any offer to purchase received by it. Only written acceptance by the Supplier of the Applicant’s offer will complete a contract.
14. Placement of an order, either verbally or in writing, will imply acceptance of the Supplier’s offer and of these terms and conditions.
15. It is contemplated by both the Supplier and the Applicant that to satisfy the contract in whole or part, the Supplier may manufacture the goods or may purchase them outright or may place an order/s for their manufacture or may purchase the rights of a third party who has contracted for the supply of goods of similar description or who may have already placed such order or so purchased.
16. Prices quoted are net.
17. Unless otherwise stated prices quoted are based on rates of labour, materials, parts, equipment required to be purchased as component parts, other goods, freight, transportation, insurance premiums, customs duties and other taxes and statutory charges, shipping expenses, sorting and stacking charges, cartage and rates of exchange, etc current at the date of quotation. Where relevant amounts actually and properly paid by the Supplier for any of these items differ from the amounts included in the quoted price as a consequence of a variation in any of the foregoing rates occurring from any cause the quoted price will be adjusted and the Applicant charged accordingly and any and every contract is entered into subject to such condition. Without limiting the generality of the term “rates of labour” any variation in any status, regulation, award, or determination by which rates of pay are varied or by which hours of work are reduced for holidays, sick leave or any benefit or amenity is varied will be deemed to be a variation in the rate of labour upon the provision of 48 hours’ written notice.
18. All quotations are subject to withdrawal or change at any time until the Applicant’s order has been received and accepted by the Supplier.
19. Unless otherwise stated, all quotations will remain valid for a period of thirty (30) calendar days from the date of the original quotation.
Retention of title
20. Title in the goods does not pass to the Applicant until the Applicant has made payment in full for the goods and, further, until the Applicant has made payment in full of all the other money owing by the Applicant to the Supplier (whether in respect of money payable under a specific contract or on any other account whatsoever).
21. Whilst the Applicant has not paid for the goods supplied in full at any time, the Applicant agrees that property and title in the goods will not pass to the Applicant and the Supplier retains the legal and equitable title in those goods supplied and not yet sold.
22. Notwithstanding that title may not have passed, risk in the goods passes immediately upon delivery.
23. Until payment in full has been made to the Supplier, the Applicant will hold the goods in a fiduciary capacity for the Supplier and agrees to store the goods in such a manner that they can be identified as the property of the Supplier, and will not mix the goods with other similar goods.
24. The Applicant will be entitled to sell the goods in the ordinary course of its business, but until full payment for the goods has been made to the Supplier, the Applicant will sell as agent and bailee for the Supplier and the proceeds of sale of the goods will be held by the Applicant on trust for the Supplier absolutely.
25. The Applicant’s indebtedness to the Supplier, whether in full or in part, will not be discharged by the operation of clause 24 hereof unless and until the funds held on trust are remitted to the Supplier.
26. The Applicant agrees that whilst property and title in the goods remains with the Supplier, the Supplier has the right, upon the provision of 24 hours’ notice to the Applicant, to enter upon any premises occupied by the Applicant (or any receiver, receiver and manager, administrator, liquidator or trustee in bankruptcy of the Applicant) to inspect the goods of the Supplier and to repossess the goods which may be in the Applicant’s possession, custody or control when payment is overdue.
27. The Applicant will be responsible for the Supplier’s reasonable costs and expenses in exercising its rights under clause 26. Where the Supplier exercises any power to enter the premises, that entry will not give rise to any action of trespass or similar action on the part of the Applicant against the Supplier, its employees, servants or agents.
28. The Applicant agrees that where the goods have been retaken into the possession of the Supplier, the Supplier has the absolute right to sell or deal with the goods upon reasonable notice to the Applicant, and if necessary, sell the goods with the trademark or name of the Applicant on those goods, and the Applicant hereby grants an irrevocable licence to the Supplier to do all things necessary to sell the goods bearing the name or trademark of the Applicant.
29. For the avoidance of doubt, the Supplier’s interest constitutes a ‘purchase money security interest’ pursuant to the PPSA.
30. The Applicant will be responsible for immediate examination of the goods upon delivery, and in the event of any of the goods arriving in a damaged condition, including damage incurred in the course of transit, the Applicant must report the matter in writing to the Supplier within seven (7) days of delivery. Subject to any rights the Applicant may have under the Competition and Consumer Act 2010 or other statute the Supplier will in no circumstances be liable for, nor will any claim in respect thereof,unless notice of the damage complained of is reported to the Supplier in writing within seven (7) days of delivery. This clause will be without prejudice to any other clause/s herein which limit the liability of the Supplier.
31. It is the Applicant’s responsibility to satisfy themselves that the goods are of a description, quality and character suitable for the purpose for which they are purchased or any other purpose and subject to any legislation to the contrary the Supplier will not be liable in any way whatsoever for any loss or damage (including direct, indirect, special, general or consequential), howsoever arising from the sale or from the failure of the Applicant so to satisfy himself.
32. It will be the Applicant’s responsibility to obtain and provide access, services, facilities, permits, approvals or licences as may be necessary or required for the Supplier to perform its obligations under the contract.
33. Unless any special condition of sale will specifically provide to the contrary, the provisions of clause 34 to 42 will apply.
34. Subject to these terms, the Supplier warrants that where the goods are new goods, the goods will be free from defects in material and workmanship under conditions of normal use and maintenance.
35. The goods of the Supplier will come with guarantees that cannot be excluded under the Competition and Consumer Act 2010. The Applicant is entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. The Applicant is 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.
36. Nothing in this agreement 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 any goods and/or services pursuant to this agreement of all or any of the provisions the Competition and Consumer Act 2010 or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.
37. Subject to any exceptions in these terms, the Supplier will provide its warranty against defects (if any) in relation to a fabricated item, including its components and fittings, at the time a quote is given.
Limit of liability
38. Subject to clause 41 to 45 herein, it is expressly agreed that the Supplier will in no event be liable for any damage whatsoever whether direct, indirect, special, general or consequential and howsoever arising (including damage suffered as a result of the negligence of the Supplier or of its servants or agents) for breach of warranty contained in paragraphs 34 to 42 (hereinafter called the Warranty) and that the sole and exclusive remedy of the Applicant for breach of the Warranty will be to:
(a) in the case of new goods, require the Supplier to repair or replace (at the discretion of the Supplier) any part or parts of the goods not complying with the Warranty or to pay for the cost of replacing or repairing any part or parts of the goods not complying with the Warranty; or
(b) in the case of fabricated goods to require the Supplier to repair the fabricated goods or to pay for the cost of repairing the fabricated goods.
39. The Supplier will have no obligation or liability under the Warranty either to furnish normal maintenance or operating service for the goods or to provide lubricants, fuels, tune-ups or similar inspections or adjustments.
40. The Warranty applies only within the Commonwealth of Australia and to:
(a) in the case of new goods, the original Applicant to whom the goods were first sold and excludes second hand and used goods; or
(b) in the case of component overhaul, the original Applicant for whom the overhaul of the component was carried out and excludes new goods.
Condition of Warranty
41. It is a condition of the Warranty contained in this clause that in respect of any claim under the Warranty, the Applicant will:
(a) file a warranty claim on the form prescribed from time to time by the Supplier not later than fourteen (14) days from the discovery of any defect;
(b) give full particulars in the claim of the alleged defect and the reasons for alleging that such defect is due to defective materials or workmanship; and
(c) forthwith deliver at the Applicant’s expense the alleged defective part or parts of the goods or the component or part or parts of such component as the case may be, to the premises of the Supplier where the goods were purchased or the overhaul was undertaken, as the case may be, in proper condition to prevent additional damage or corrosion.
42. The Supplier will be under no liability under the Warranty if the foregoing conditions are not met.
Suspension of Supplier
43. Payment for any goods sold and/or services supplied will become immediately due upon default by the Applicant in payment of any other goods sold and/or services supplied by the Supplier to the Applicant and the Supplier will be entitled to suspend the supply of further goods and/or services to the Applicant.
44. The Applicant will not copy or have copied any product or part of any drawing specification or other technical data in regard thereto which may be supplied or provided arising out of a quotation or the contract.
45. Unless otherwise stated all specification, drawings and particulars of weight, dimensions and performance characteristics submitted are approximate only and 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 the foregoing will form part of the contract.
46. When the Supplier considers specialised packing is required to protect fragile goods or components, then the Applicant will pay for the cost of such packing.
Cancellation of terms of credit
47. The Supplier reserves the right to withdraw credit at any time upon the provision of 48 hours’ notice, whether the Applicant is in default under the terms of this agreement or not.
48. Upon cancellation with notice all liabilities incurred by the Applicant become due and payable to the Supplier within seven (7) days.
Return of goods
49. Subject to clauses 41 to 50 (inclusive), the Supplier will not accept the return of goods unless prior written authorisation has been obtained from the Supplier.
50. Return of goods will only be accepted subject to the following conditions.
(a) If returned in their original packing.
(b) If returned to the store from which they were purchased.
(c) If the freight for such return/s will have been pre-paid by the Applicant.
(d) If returned under warranty, the Applicant to supply full details of purchase, order number and a comprehensive report of usage and application.
(e) Payment of a restocking fee of 10 percent of the purchase price of the goods returned.
(f) Inspection upon receipt.
(g) The Applicant acknowledges and agrees that goods specially ordered in will not be accepted for return.
(h) If goods which are regular stock lines of the Supplier are returned, within fourteen (14) days from the date of invoice.
(i) Goods which are not of regular stock line (goods made to customer’s orders) may not be returned except where those goods are defective. Goods will not be defective if they are made in accordance with drawings and specifications as agreed by the Applicant at time of order.
51. The Applicant agrees to indemnify the Supplier and keep the Supplier indemnified against any claim that arises out of goods and services supplied under this agreement. This indemnity includes any reasonable legal fees and expenses the Supplier incurs in order to enforce its rights, on an indemnity basis.
Provision of further information
52. The Applicant undertakes to comply with any reasonable written requests by the Supplier to provide further information for the purpose of assessing the Applicant’s creditworthiness, including an updated credit application.
53. If the Applicant is a corporation (with the exception of a public listed company), it must advise the Supplier of any alteration to its corporate structure (for example, by changing directors, shareholders, or its constitution). In the case of a change of directors or shareholders the Supplier may ask for new guarantors to sign a guarantee and indemnity.
54. Notice hereunder to the Applicant may be sent by ordinary post to the Applicant at its address last known to the Supplier and will be deemed to have been received by the Applicant two (2) working days following the day of posting.
55. If the Applicant is a corporation, the Applicant warrants that all of its directors have signed this agreement and that all of its directors may be required to enter into a guarantee and indemnity with the Supplier in relation to the Applicant’s obligations to the Supplier.
56. If the Applicant is the trustee of a trust (whether disclosed to the Supplier or not), the Applicant warrants to the Supplier that the Applicant:
(a) enters into this agreement in both its capacity as trustee and in its personal capacity;
(b) has the right to be indemnified out of trust assets;
(c) has the power under the trust deed to sign this agreement; and
(d) will not retire as trustee of the trust or appoint any new or additional trustee without advising the Supplier.
57. The Applicant must give the Supplier a copy of the trust deed upon request.
58. If the Applicant enters into this agreement as partners, the Applicant warrants that all of the partners have signed this agreement and that all of the partners may be required to enter into a guarantee and indemnity with the Supplier in relation to the Applicant’s obligations to the Supplier.
59. If the Applicant is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising the Supplier. In the case of a change of partners, the Supplier may ask for new guarantors to sign a guarantee and indemnity.
60. If the Applicant becomes insolvent, the Applicant remains liable under this agreement for payment of all liabilities incurred hereunder. The Applicant remains liable under this agreement even if the Supplier receives a dividend or payment as a result of the Applicant being insolvent.
61. A waiver of any provision or breach of this agreement by the Supplier must be made by an authorised officer of the Supplier in writing. A waiver of any provision or breach of this agreement by the Applicant must be made by the Applicant’s authorised officer in writing.
62. Until ownership of the goods passes, the Applicant waives its rights it would otherwise have under the PPSA (unless otherwise agreed in writing between the Supplier and the Applicant):
(a) under section 95 to receive notice of intention to remove an accession;
(b) under section 118 to receive notice that the Supplier intends to enforce its security interest in accordance with land law;
(c) under section 121(4) to receive a notice of enforcement action against liquid assets;
(d) under section 129 to receive a notice of disposal of goods by the Supplier purchasing the goods;
(e) under section 130 to receive a notice to dispose of goods;
(f) under section 132(2) to receive a statement of account following disposal of goods;
(g) under section 132(4) to receive a statement of account if no disposal of goods for each 6 month period;
(h) under section 135 to receive notice of any proposal of the Supplier to retain goods;
(i) under section 137(2) to object to any proposal of the Supplier to retain or dispose of goods;
(j) under section 142 to redeem the goods;
(k) under section 143 to reinstate the security agreement; and
(l) under section 157(1) and 157(3) to receive a notice of any verification statement.
63. The Applicant must pay for its own legal, accounting and business costs and all costs incurred by the Supplier relating to any default by the Applicant. The Applicant must also pay for all stamp duty and other taxes payable on this agreement (if any).
64. The Applicant will pay the Supplier’s reasonable costs and disbursements incurred in pursuing any recovery action, or any other claim or remedy, against the Applicant, including debt recovery fees and legal costs on an indemnity basis as a result of any default under this agreement.
65. The Applicant acknowledges and agrees that payments by the Applicant will be applied by the Supplier as follows.
(a) Firstly, in payment of any and all collection costs and legal costs in accordance with clauses 27 and 64.
(b) Secondly, in payment of any interest incurred in accordance with clause 72.
(c) Thirdly, in payment of the outstanding invoice(s).
66. In circumstances where the Supplier seeks to enforce a purchase money security interest under the PPSA over collateral or proceeds (these terms being consistent with the terms defined in the PPSA), payments received from the Applicant will be allocated in a manner at the Suppliers absolute and unfettered discretion, so as to attribute, to the greatest extent possible, the unpaid balance of the debt to the purchase money obligation in respect of the collateral and/or proceeds over which the Supplier seeks to enforce its purchase money security interest.
67. The Supplier may apply and allocate payments received by, or on behalf of, the Applicant in a manner in the Supplier’s absolute and unfettered discretion, including so as to attribute the payments to satisfy obligations which are or are not secured by a purchase money security interest or otherwise.
68. To the extent that payments have been allocated to invoices by the Supplier in its business records, the Supplier may, at its sole and unfettered discretion, allocate and/or retrospectively reallocate payments in any manner whatsoever at any time whatsoever.
69. Payments allocated (and/or reallocated) under clause 66 and/or 67 will be treated as though they were allocated (and/or reallocated) in the manner determined by the Supplier on the date of receipt of payment.
Taxes and duty
70. The Applicant must pay GST on any taxable supply made by the Supplier to the Applicant under this agreement. The payment of GST is in addition to any other consideration payable by the Applicant for a taxable supply.
71. If as a result of:
(a) any legislation becoming applicable to the subject matter of this agreement; or
(b) 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, duty, excise or levy in respect of the amounts received from the Applicant, then the Applicant must pay the Supplier these additional amounts on 48 hours’ written demand.
72. The interest rate on any outstanding debts is a fixed rate of 10 percent per annum10 percent per annum.
73. All payments required to be made by the Applicant under this agreement will be made free of any set-off, or counterclaim and without deduction or withholding unless agreed to otherwise by the Supplier and the Applicant in writing. Any reasonable requests to set-off, deduct or withhold from amounts outstanding will be considered by the Supplier, provided that reasonable evidence is provided to the Supplier as to why the Applicant is entitled to the set-off, deduction or withhold from amounts outstanding.
74. Any amount due to the Supplier from time to time may be deducted from any monies which may be or may become payable to the Applicant by the Supplier upon agreement in writing between the Supplier and the Applicant.
75. The Supplier is not liable for any loss caused to the Applicant by reason of strikes, lockouts, fires, riots, war, embargoes, civil commotions, acts of God or any other activity beyond the Supplier’s control.
76. In relation to the supply of goods, the Supplier’s liability is limited to:
(a) replacing the goods or supplying similar goods;
(b) repairing the goods;
(c) providing the cost for replacing the goods or for acquiring equivalent goods; and
(d) providing the cost for having the goods repaired.
77. In relation to the supply of services, the Supplier’s liability is limited to:
(a) supplying the service again; or
(b) providing for the cost of having the services supplied again.
78. The Supplier is not liable, whether claims are made or not, for loss of profit, economic or financial loss, damages, consequential loss, loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the Applicant as a results of the goods and/or services supplied under this agreement.
79. The Applicant will, at the request of the Supplier, execute documents and do such further acts as may be required for the Supplier to register the security interest granted by the Applicant under the PPSA.
80. The Applicant agrees to accept service of any document required to be served, including any notice under this agreement or the PPSA or any originating process, by prepaid post at any address nominated in this application or any other address later notified to the Supplier by the Applicant or the Applicant’s authorised representative.
81. The Applicant further agrees that where we have rights in addition to those under part 4 of the PPSA, those rights will continue to apply.
82. The Applicant irrevocably grants to the Supplier the right to enter upon the Applicant’s property or premises, with notice, and without being in any way liable to the Applicant or to any third party, of the Supplier has cause to exercise any of their rights under sections 123 and/or 128 of the PPSA, and the Applicant shall indemnify the Supplier from any claims made by any third party as a result of such exercise.
83. Nothing in this agreement 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 any goods and/or services pursuant to this agreement of all or any of the provisions the Competition and Consumer Act 2010 or any relevant State or Federal Legislation which by law cannot be excluded, restricted or modified.
84. If any provision of this agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms.
85. If any part of this agreement is invalid or unenforceable, that part is deleted and the remainder of the agreement remains effective.
86. The Applicant agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of the Supplier at any time by written notice to the Applicant. The Applicant will be provided with 14 days to accept the variation, failing which the variations will be deemed to be accepted by the Applicant. Any reasonable requests from the Applicant to vary the terms will be considered by the Supplier.
87. Any proposed variation to these terms and conditions by the Applicant must be requested in writing. The Supplier may refuse any such request by provision of written reasons.
88. Variations requested by the Applicant will only be binding upon the Supplier if they are accepted in writing. The Supplier may refuse any such request upon the provision of written reasons.
Consent to register
89. The Applicant hereby consents to the Supplier recording the details of this Agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by the Supplier to effect such registration.
90. Unless otherwise agreed in writing by the Supplier, the Applicant waives any right or entitlement to receive notice of the registration of any security interest(s) created by this instrument on the Personal Property Securities Register.
91. This agreement constitutes the entire agreement between the parties relating in any way to its subject matter, unless agreed otherwise by the Supplier and the Applicant in writing. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.
92. In circumstances where there is a pre –existing written credit agreement (Original Agreement) between the Applicant and the Supplier, these terms and this agreement will constitute a variation of the Original Agreement whereby the terms of the Original Agreement are deleted and replaced with the terms herein, unless the terms of the Original Agreement are otherwise expressly or implicitly preserved by the terms herein in which case they will co-exist with the terms herein, and, to the extent of any inconsistency, these terms will prevail.
93. The Applicant agrees to the terms of the Privacy Statement pursuant to the Privacy Act 1988 (as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012) contained in this document.