IRWIN Tools Terms and Conditions of Sale in Australia:
1. General & Interpretation –
In these conditions:
1.1 "Buyer‟ means the purchaser of any goods specified on a purchaser order to the Company, or as specified overleaf;
1.2 "Goods‟ means the products and, if any, services specified on a purchase order from the Buyer to the Company, or as specified overleaf;
1.3 "Moneys Owed‟ means all principal, interest, capitalised interest, default interest, fees, costs, expenses, charges and other moneys of whatever nature owed or payable by the Buyer to the Seller under this Agreement or the Security Documents or the loans referred to in the recitals hereto or otherwise howsoever;
1.4 "Interest Rate‟ means the penalty interest rate fixed under the Penalty Interest Rate Act 1983 (Victoria) calculated and payable daily, compounded from the due date until the invoice is paid in full.
1.5 "the Company‟ means Irwin Industrial Tool Company Pty Ltd, ABN 30 005 543 966, ACN 005 543 966.
1.6 Any Goods and all other products sold by the Company are sold on these terms and conditions, notwithstanding any inconsistencies which may be introduced in the Buyer's order or acceptance, unless expressly agreed to by the Company in writing.
1.7 "PPSA‟ means the Personal Properties Securities Act 2009.
1.8 "PMSI‟ means a purchase money security interest as defined by the PPSA.
1.9 “security interest”, “purchase money security interest”, “attached”, “attachment”, “perfected”, “accession”, “commingled” and all related terms have the meanings given them by the PPSA.
2. Pricing and Delivery
2.1 The price of goods is to be calculated by reference to the Company's current price list.
2.2 The prices and product specifications in published Company price lists are subject to alteration without notice, including the right to correct printing and clerical errors without notice.
2.3. The Buyer agrees that the delivery docket signed, whether by any employee of the Buyer or any other person signing for or on behalf of the Buyer, shall be conclusive evidence of delivery.
2.4 The Company will deliver FIS (free into store) to capital cities (excluding Darwin) for orders over the value of $200.00 (excl. GST) or less than $500.00 for Darwin.
3. Orders
3.1 An order for Goods constitutes an offer to purchase the Goods by the Buyer subject to the TERMS AND CONDITIONS OF SALE.
3.2 Orders accepted by the Company may not be cancelled or altered in whole or in part without the Company's written consent.
3.3 The Company may from time to time in our absolute discretion vary the TERMS AND CONDITIONS OF SALE.
3.4 The Company may at our absolute discretion decline any order either in whole or in part.
3.5 The Company reserves the right to specify the minimum order value that will be accepted from time to time. The Company may at the Company's absolute discretion, supply orders below the specified minimum order value and charge a handling fee, as determined by the Company, on all such orders.
3.6 The Company reserves the right to charge a $10.00 handling fee on all orders of less than $200.00 (excl. GST) or less than $500.00 for Darwin.
3.7 In placing any order the Buyer expressly represents that the Buyer:
3.7.1 is solvent; and
3.7.2 has not committed an act of bankruptcy; and
3.7.3 Knows of no circumstances which would entitle any creditor or secured creditor to appoint a receiver or which would entitle any creditor or shareholder to apply to the Court to liquidate the Company or exercise any other rights over or against the Buyers‟ assets.
4. Terms of Payment
4.1 All invoices are due and payable in full on the last banking day of the month following the date of invoice.
4.2 Should the Buyer fail to pay the Company's invoices by the due date then:
4.2.1 the Company may charge interest on any overdue invoice at the penalty rate fixed under the Penalty Interest Rate Act 1983 (Victoria) calculated and payable daily, compounded from the due date until the invoice is paid in full, and;
4.2.2 the Buyer shall pay all of the Company's costs and expenses (including legal costs determined as between solicitor/own client and mercantile agents fees) which may be incurred in the recovery or attempted recovery of the overdue amounts from the Buyer.
4.3 Company's Rights of Set Off
The Company may set off any amount owed by the Company to the Buyer from any amount due by the Buyer to the Company.
4.4 The Company offers a 1.5% discount for payments received within 14 days from date of invoice.
5. Goods and Services Tax ("GST‟)
5.1 Prices – all prices will be quoted exclusive of GST. Invoices will be issued in the prescribed form as set out by Section 195-1 of the "A New Tax System (Goods and Services Tax) Act 1999 (Cth)‟ and the related imposition Acts of the Commonwealth (The GST Law)‟.
5.2 Any discounts or other terms agreed between the Buyer and the Company will be calculated on and applied to the Purchase Price exclusive of GST.
5.3 Payment for GST
5.3.1 Liability for GST
If GST is imposed on any supply made by the Company pursuant to these TERMS AND CONDITIONS OF SALE ("Terms and Conditions‟), the Buyer must pay to the Company, in addition to any consideration payable, or to be provided by the Buyer under the Terms and Conditions for supply, an additional amount for supply calculated by multiplying the prevailing GST rate by the consideration for the relevant supply payable, or provided, (without any deduction or set-off) by the Buyer under any other clause in these Terms and Conditions. Any amount payable is payable upon demand by the Company whether such demand is by means of any invoice or otherwise. "GST‟ means the tax imposed pursuant to the GST law.
5.3.2 If any part of the Purchase Price is referable to both a Taxable Supply and anything that is not a Taxable Supply, the GST-exclusion portion of the purchase price shall be determined by the Company.
5.3.3 Where the Company determines on reasonable grounds that an adjustment is required to the purchase price, it will promptly issue any "Adjustment Notes‟ that are prescribed by the GST law.
6. Guarantee
6.1 The Company's products are guaranteed against defects in material or workmanship subject to fair and proper usage.
6.2 All claims by the Buyer for defective goods are subject to the terms and conditions set out herein.
6.3 The Buyer is not authorised to issue replacements to there customers for the
Company's products without prior approval of the Company.
7. Claims
7.1 Any claims by the Buyer for short or wrongful delivery of the goods MUST BE NOTIFIED TO THE COMPANY IN WRITING WITHIN (7) DAYS after delivery of the goods to the Buyer and any claim which the Buyer does not notify within the time aforesaid (time being of the essence) shall be deemed to have been absolutely waived.
7.2 Any other claims for adjustment to any invoice for any reason whatsoever must be made in writing within 30 days of delivery.
7.3 Any claims by the Buyer associated with trade promotions in relation to the Company's products must be made in writing within 3 months of completion of the trade promotion and must be accompanied by copies of all documents that are necessary to justify the Buyer's claim.
8. Return of Goods
8.1 The Company will not accept returns for credit without prior authorization.
8.2 Any Goods which the Buyer returns for credit, other than defective goods, will only be accepted if they are in the original packaging and in as new saleable order and condition.
8.3 If the Company authorises the return of Goods, the Goods must be sent freight pre-paid or otherwise, if approved by the Company, carried by the Company's nominated carrier.
8.4 The Company reserves the right, except for credits for defective goods, to charge a handling fee equal to 10% of the credit value and to deduct this fee from the credit amount,.
9. Implied Terms
Application for Credit: Irwin Industrial Tool Company Pty Ltd (Irwin Tools) ABN 30 005 543 966 ACN 005 543 966 Page 6 of 7
9.1 It is hereby acknowledged by the Buyer that, under applicable State, Territory, and Commonwealth law, certain conditions and warranties may be implied in the contract between the Company and the Buyer and rights and remedies conferred upon the Buyer and other parties in relation to goods or services which cannot be excluded, restricted or modified by agreement (“Non-excludable Rights”). The limitations below are subject to these Non-excludable Rights.
9.2 Subject to the clause 8.1, the Company disclaims all conditions and warranties expressed or implied, and rights and remedies conferred on the Buyer or other parties, by statute the common law, equity, trade, custom or usage or otherwise howsoever and all such conditions and warranties and such rights and remedies are hereby expressly excluded other than any Non-excludable Rights.
9.3 The Company's liability under s 74H of the Trade Practices Act 1974 (Cth) is expressly limited to a liability to pay or credit to the purchaser an amount equal to:
(1) the cost of replacing the goods;
(2) the cost of obtaining equivalent goods; or
(3) the cost of having the goods repaired,
whichever is the lowest amount.
9.4 Where so permitted the liability of the Company for a breach of a Non-excludable Right is limited, at the Company's option, in the case of goods, to the replacement or repair of the goods or the supply of equivalent goods or the cost of replacing or repairing the goods or of acquiring equivalent goods and, in the case of services, to the supplying of the services again or the payment of the cost of having the services supplied again.
10. Indirect Loss
Accordingly, subject to Clause 8, in no event shall the Company be liable (whether before or after discharge of the contract or otherwise) for any loss or damage to the Buyer howsoever arising including any loss or damage arising from or caused or contributed to by negligence of the Company, its servants or agents, nor shall the Company be liable for special, incidental, indirect or consequential loss or damage suffered by the Buyer as a result of a breach by the Company of its obligations or otherwise including but not limited to economic or moral loss, loss of profits or revenue or costs arising from such breach.
11. Indemnity
Subject to Clause 8, the Buyer shall indemnify and keep indemnified and hold the Company harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by the Company, and from and against all actions, proceedings, claims or demands made against the Company, arising from one or more of the following:
(a) As a result of the Buyer's failure to comply with any laws, rules, standards or regulations applicable in relation to the goods or the use of the goods;
(b) As a result of any other negligence or other breach of duty by the Buyer; or
(c) As a result of any compliance or adherence by the Company with any instructions of the Buyer in relation to the goods or their manner of fabrication.
12. Rights in relation to the goods
12.1 In connection with the goods while they remain the property of the Company, the Buyer agrees with the Company that:
12.1.1 The Buyer has no right or claim to any interest in the goods to secure any liquidated or unliquidated debt or obligation the Company owes to the Buyer;
12.1.2 The Buyer cannot claim any lien over the goods;
12.1.3 The Buyer will not create any absolute or defeasible interest in the goods in relation to any third party except as may be authorised by the Company;
12.1.4 Where the Buyer is in actual or constructive possession of the goods:
12.1.4.1 the Buyer will not deliver them or any document of title to the goods to any person except as directed by the Company; and
12.1.4.2 it is in possession of the goods as a bailee of those goods and owes the Company the duties and liabilities of a bailee.
12.2 In connection with the goods, the Company states to the Buyer that:
12.2.1 the Company has the right to supply the goods to the Buyer;
12.2.2 the activities of the Buyer in supplying the goods do not infringe the rights of the owner of the goods (where the Company is not the owner of the goods) and;
12.2.3 if the goods are not owned by the Company, that the Company is authorised to supply the goods to the Buyer.
12.3 The Company and the Buyer agree that:
12.3.1 The property of the Company in the goods remains with the Company until the Company has been paid in full for the goods under all individual contracts for the supply of the goods between the Company and the Buyer;
12.3.2 The Buyer is a bailee of the goods until such time as property in them passes to the Buyer and that this bailment continues in relation to each of the goods until the price of the goods has been paid in full;
12.3.3 Pending payment in full for the goods, the Buyer:
12.3.3.1 must not supply any of the goods to any person outside of its ordinary or usual course of business;
12.3.3.2 must not allow any person to have or acquire any security interest in the goods;
12.3.3.3 must insure the goods for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Buyer carries on business and;
12.3.3.4 must not remove, deface or obliterate any identifying plate, mark or number on any of the goods.
12.4 Despite clause 12.3, if the Buyer supplies any of the goods to any person before all monies payable by the Buyer have been paid to the Company (and have not been claimed or clawed-back by any person standing in the place of or representing the Buyer), the Buyer agrees that:
12.4.1 it holds the proceeds of re-supply of all the goods on trust for and as agent for the Company immediately when they are receivable or are received;
12.4.2 it must either pay the amount of the proceeds or re-supply to the Company immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for the Company;
12.4.3 any accessory or item which accedes to any of the goods by an act of the Buyer or any person at the direction or request of the Buyer becomes and remains the property of the Company until the Company is paid in accordance with clause 12.3.1 when the property in the goods (including the accessory) passes to the Buyer and;
12.4.4 if the Buyer fails to pay for the goods within the period of credit (if any) extended by the Company to the Buyer, the Company may recover possession of all the goods at any site owned, possessed or controlled by the Buyer and the Buyer agrees that the Company has an irrevocable licence to do so.
13. Withholding Supply
13.1 The Company reserves the right, irrespective of whether or not an order has been accepted and without notice to the Buyer, to withhold supply to the Buyer and the Company will not be liable for loss or damage resulting directly or indirectly from such action where:
(a) the Company has insufficient Goods to fill the order;
(b) the Goods ordered have been discontinued; or
(c) the Company has determined, in the Company's absolute discretion, that credit should no longer be extended to the Buyer.
14. Modifications of labels
14.1 The Buyer may not, without the Company's written consent, alter, remove, or obliterate any labels which the Company attach to the Goods.
15. Performance and Representations
15.1 The Buyer acknowledges that neither the Company nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in writing whether as to the fitness of the goods for any particular purpose or any other matter.
16. Default in Payment
16.1 The Company will treat any default by the Buyer in payment of any monies due to the Company as a breach of these terms and conditions. The Company reserves the right thereupon to cease work on the relevant order and all other orders placed by the Buyer and hold all the Buyer's work until the due payment or payments on all Moneys Owed are made. Recurring payments default may, at the Company's discretion, lead to the Buyer's account with the Company being closed and any further order placed by the Buyer and accepted by the Company will only be processed when prepaid for by bank cheque.
17. Waiver
17.1 Failure by the Company to insist upon strict performance of any term, warranty or condition of the Deed or these terms and conditions of sale shall not be deemed as a waiver thereof or of any rights the Company may have and no express waiver shall be deemed a waiver of any subsequent breach of any term warranty or condition.
18. Buyer's Acknowledgment
18.1 The Buyer acknowledges that the goods are not of a kind ordinarily acquired for private use or consumption but are acquired for business purposes.
Application for Credit: Irwin Industrial Tool Company Pty Ltd (Irwin Tools) ABN 30 005 543 966 ACN 005 543 966 Page 7 of 7
19. Intellectual Property Rights
19.1 The Buyer warrants that any design or instruction furnished to the Company shall not be such as will cause the Company to infringe any intellectual property rights (including patents, registered designs, trademarks, copyright, confidential information and the like) in the execution of the Buyer's order and the Buyer agrees to indemnify the Company against any infringement or unauthorised use of the intellectual property rights arising out of the manufacture or use of the goods and it is especially agreed that the sale and purchase of goods does not confer on the Buyer any licence or rights under any intellectual property rights which is the property of the Company.
20. Notices
20.1 Any notice to be given by the Buyer to the Company shall be sent to the Company's address. No notice shall be deemed to have been given until it is actually received at such address.
21. Severance
21.1 It is agreed that if any provision of these terms and conditions should be determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provision hereof and each such other provision shall remain in full force and effect.
22. Deed under seal
22.1 It is acknowledged and accepted by the parties that the terms and conditions are assented to under seal.
23. Governing Law
23.1 The Deed and these terms and conditions of sale shall be governed by and construed in accordance with the laws of Victoria.
23.2 The Buyer agrees with the Company to submit to the non-exclusive jurisdiction of the Courts of Victoria and the Federal Court of Australia and agree that any legal proceedings may be heard in those Courts.
24. Entire Agreement
24.1 This Agreement and the Security Documents contain all the terms of the agreement between the parties and supersede all prior discussions and arrangements in relation to the subject of this Agreement in the event that there is any conflict between the provisions of this Agreement and the provisions of the Security Documents then the provisions of this Agreement shall prevail.
25. Conflicts
25.1 Where any conflict or inconsistency shall arise between any of the terms, conditions and provisions, whether express or implied, of this Agreement and those of any Security Document, the terms, conditions and provisions of this Agreement shall prevail unless otherwise determined by notice in writing to the Buyer by the Company.
26. Clerical Errors
26.1 We reserve the right to correct clerical errors without notification.
27. Personal Properties Securities Act 2009
27.1 The Buyer hereby acknowledges that these Terms and Conditions of Trade constitute a security agreement which creates a security interest in favour of the Company in all Goods previously supplied by the Company to the Buyer (if any) and all after acquired Goods supplied by the Company to the Buyer (or for the Buyer's account) to secure the payment from time to time and at a time, including future advances. The Buyer agrees to grant a “Purchase Money Security Interest” to the Company.
27.2 The Buyer acknowledges and agrees that by assenting to these terms the Buyer grants a security interest (by virtue of the retention of title clause in these Terms and Conditions of Trade) to the Company and all Goods previously supplied by the Company to the Buyer (or for the Buyer's account) and these terms shall apply notwithstanding anything express or implied to the contrary contained in the Buyer's purchase order.
27.3 The Buyer undertakes to:
27.3.1 sign any further documents and/or provide any further information (which information the Buyer warrants to be complete, accurate and up-to-date in all respects) which the Company may reasonably require to enable registration of a financing statement or financing change statement on the Personal Property Securities Register (“PPSR”);
27.3.2 not register a financing change statement as defined in section 10 of the PPSA or make a demand to alter the financing statement pursuant to section 178 of the PPSA in respect of the Goods without the prior written consent of the Company;
27.3.3 give the Company not less than 14 days‟ written notice of any proposed change in the Buyer's name and/or any other changes in the Buyer's details (including by not limited to changes in the Buyer's address, facsimile number, email address, trading name or business practice);
27.3.4 pay all costs incurred by the Company in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR and/or enforcing or attempting to enforce the security interest created by these Terms and Conditions of Trade including executing subordination agreements;
27.3.5 be responsible for the full costs incurred by the Company (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPSA; and
27.3.6 the Buyer waives any rights it may have under sections 115 of the PPSA upon enforcement.
27.4 Pursuant to section 157 of the PPSA, unless otherwise agreed to in writing by the Company, the Buyer waives the right to receive the verification statement in respect of any financing statement or financing change statement relating to the security interest.
27.5 The Buyer agrees that immediately on request by the Company the Buyer will procure from any persons considered by the Company to be relevant to its security position such agreement and waivers as the Company may at any time require.
28. Security Interest
28.1 The Buyer gives the Company a Security Interest in all of the Buyer's present and after-acquired property in which Goods or materials supplied or financed by the Company have been attached or incorporated.