Australian Hammer Supplies Terms and Conditions of Sale
In these conditions:
"Conditions" means these Terms and Conditions of Sale as amended from time to time by the Supplier and notified to the Customer;
“contract” means the contract entered into between the Supplier and the Customer pursuant to these Conditions;
"Customer" means a person, firm or corporation seeking to acquire goods or services from the Supplier and if there is more than one these Conditions bind them jointly and each of them severally;
"goods" means goods supplied by the Supplier to the Customer;
"services" means services supplied by the Supplier to the Customer;
"Supplier" means Australian Hammer Supplies Pty Ltd (ABN 35 050 106 431) of 34 Williamson Road, Ingleburn NSW 2565 Australia.
2. Basis of Contract
2.1 Unless otherwise agreed by the Supplier in writing, the Conditions apply exclusively to every contract for the sale of goods or services by the Supplier to the Customer and cannot be varied or supplanted by any other condition(s) including those that may be proffered by the Customer or printed on the Customer's purchase order or other documentation without the prior written consent of the Supplier.
2.2 Any written quotation provided by the Supplier to the Customer in respect of the proposed supply of goods or services is deemed to be an invitation only to the Customer to place an order based upon that quotation. Quotations are valid for 30 days from the quotation date. Prices shown on any price list are subject to change without notice.
2.3 An order is accepted when a written acceptance is signed for or on behalf of the Supplier or if the goods and/or services are supplied by the Supplier in accordance with the order, whichever occurs first.
3.1 Payment for goods and services must be made in Australian dollars and paid within 7, 14 or 30 days from the date of the Supplier's invoice unless otherwise agreed between the parties.
3.2 All invoices (when applicable) are construed as payment claims made under the Building and Construction Industry Security of Payment Act 1999 (NSW).
3.3 The granting of credit does not oblige the Supplier to extend any particular amount of credit to the Customer and the Supplier may withdraw, refuse, suspend or limit credit to the Customer at any time, in its absolute discretion, without notice or providing any reason.
3.4 The Customer must immediately notify the Supplier in writing if there is any change in the shareholding or ownership of the Customer or any material change in the Customer’s financial position.
4. Payment Default
4.1 If the Customer defaults in payment by the due date of any amount payable to the Supplier, then all money which would become payable by the Customer to the Supplier at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and the Supplier may, without prejudice to any other remedy available to it: -
(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Civil Procedure Act 2005 (NSW) plus 4 per cent for the period from the due date until the date of payment in full;
(b) charge the Customer for all expenses and costs (including legal costs on a solicitor/client basis) incurred by it in taking whatever action it deems appropriate to recover any sum due;
(c) cease or suspend for such period as the Supplier thinks fit, supply of any further goods or services to the Customer without liability to the Customer or any third party for any loss or damage whether of a direct or consequential nature
(d) by notice in writing to the Customer, terminate any contract with the Customer so far as unperformed by the Supplier, without liability for any direct or indirect loss or damage that may be caused to the Customer or any third party and without any effect on the accrued rights of the Supplier under any contract.
4.2 The remedies in clauses 4.1 (c) & (d) may also be relied upon, at the option of the Supplier:
(a) where the Customer is an individual and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally; or
(b) where the Customer is a corporation and, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or has a liquidator, provisional liquidator, administrator, receiver or receiver and manager appointed, or any action is taken for, or with the view to, the liquidation (including provisional liquidation), winding up or dissolution without winding up of the Customer.
5.1 Until full payment in cleared funds is received by the Supplier for all goods supplied by it to the Customer, as well as all other amounts owing on any account to the Supplier by the Customer:
(a) the Customer holds the goods as fiduciary bailee and agent for the Supplier;
(b) in the event that the Customer uses the goods in some manufacturing or construction of its own or of some third party, then the Customer must hold such part of the proceeds of sale of such manufacturing or construction process as relates to the goods in trust for the Supplier. Such part will be an amount in dollar terms to the amount owing by the Customer to the Supplier at the time of the receipt of such proceeds. The Customer will pay the Supplier such funds held in trust upon demand by the Supplier;
(c) the Supplier may without notice, enter any premises where it suspects the goods may be and remove them, notwithstanding that they may have been attached to other goods not the property of the Supplier, and for this purpose the Customer irrevocably licenses the supplier to enter such premises and also indemnifies the Supplier from and against all costs, claims, demands or actions by any partyarising from such action.
6. Personal Property Securities Act
6.1 Defined terms in this clause have the same meaning as given to them in the Personal Properties Securities Act 2009 (“PPSA”).
6.2 The Customer acknowledges that these Conditions constitute a Security Agreement and give rise to a Purchase Money Security Interest (“PMSI”) in favour of the Supplier as Secured Party over the goods supplied or to be supplied to the Customer as Grantor pursuant to these Conditions.
6.3 The goods supplied or to be supplied under these Conditions fall within the PPSA classification of “Other Goods” or “Motor Vehicles” acquired by the Customer pursuant to these Conditions.
6.4 The Customer and the Supplier acknowledge that the Supplier is entitled to register its interest in the goods supplied or to be supplied to the Grantor under these Conditions on the PPSA Register as Collateral.
6.5 The Customer waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer, as Grantor, to the Supplier.
6.6 The Customer agrees to indemnify the Supplier on demand for all costs and expenses, including legal costs and expenses on a solicitor/client basis, associated with the:
(a) registration or amendment or discharge of any Financing Statement registered by or on behalf of Supplier; and
(b) enforcement or attempted enforcement of any Security Interest granted to the Supplier by the Customer.
6.7 The Customer agrees:
(a) that nothing in sections 130 and 143 of the PPSA will apply to these Conditions or the Security under these Conditions;
(b) to waive its right to do any of the following under the PPSA:
(i) receive notice of removal of an Accession under section 95;
(ii) receive notice of an intention to seize Collateral under section 123;
(iii) receive notice of disposal of Collateral under section 130;
(iv) receive a Statement of Account if there is no disposal under section 132(4);
(v) receive notice of retention of Collateral under section 135;
(vi) redeem the Collateral under section 142;
(vii) reinstate the Security Agreement under section 143;
(viii) object to the purchase of the Collateral by the Secured Party under section 129; and
(ix) receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
6.8 All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA.
7.1 Unless otherwise agreed by the Supplier in writing, prices for the supply of goods and services exclude sales tax, consumption or goods and services tax, and any other taxes, duties or impost imposed on or in relation to the goods or services in Australia.
7.2 Any exchange rate fluctuation causing an increase to the cost to the Supplier of goods ordered by the Customer must be paid by the Customer if it defaults in any payment due to the Supplier.
7.3 The price list of, or any quotation by the Supplier is an invitation to treat only and is not an offer to sell. Prices are subject to alteration without notice.
8. Risk and Insurance
8.1 The risk in the goods and all insurance responsibility for theft, damage or otherwise in respect of the goods will, unless agreed in writing to the contrary, pass to the Customer upon delivery to the Customer.
9. Performance of contract/delivery
9.1 Any period or date for delivery of goods or provision of services stated by the Supplier is intended as an estimate only and is not a contractual commitment. The Supplier will use its best endeavours to meet any estimated dates for delivery of the goods or completion of the services but will in no circumstances whatsoever be liable for any loss or damage suffered by the Customer or any third party for failure to meet any estimated date.
9.2 A completed drivers manifest or delivery docket whether signed by the driver or by the Customer or its employee or agent will be proof of delivery of goods invoiced.
9.3 Any cost incurred by the Supplier due to any failure by the Customer to accept the goods at the time scheduled for delivery must be reimbursed by the Customer to the Supplier.
9.4 The Customer agrees that the Supplier, to the extent permitted by law, is not liable for:
(a) any damage or loss due to unloading or packaging;
(b) damage to property caused upon entering premises to deliver the goods except to the extent that such damage was caused by the negligent act or omission of the Supplier.
9.5 Unless otherwise specified in writing, delivery is at the Supplier’s store, and the cost of transportation of the goods must be paid by the Customer. The Supplier does not assume responsibility for delivery at, or to any destination. If the Supplier is unable to supply the Customer’s total order, these terms and conditions continue to apply to the goods supplied.
10.1 To the extent permitted by law and except as specifically set out herein, any term, condition or warranty in respect of the quality, merchantability, fitness for purpose, condition, description, assembly , manufacture or performance of the goods or services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.
10.2 Subject to and to the extent permitted by law, replacement or repair of the goods or re-supply of the services is the absolute limit of the Supplier's liability howsoever arising under or in connection with the supply of the goods or services, the description, quality, condition, performance, assembly, manufacture, merchantability or fitness for purpose of the goods or services or alternatively the sale, use of, storage or any other dealings with the goods or the serviced items by the Customer or any third party.
10.3 To the extent permitted by law, the Supplier is not liable for any indirect or consequential losses or expenses suffered by the Customer or any third party, howsoever caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party.
10.4 Nothing in the Conditions is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.
10.5 Any advice, recommendation, information or assistance provided by the Supplier in relation to the goods or services supplied by it or their use or application is given in good faith, is believed by the Supplier to be appropriate and reliable, however, it is provided with a disclaimer for any liability or responsibility on the part of the Supplier.
10.6 The Supplier is not liable for defects that are caused by;
(a) misuse or neglect by the Customer or by someone for which the Customer is responsible.
(b) faulty maintenance, incorrect assembly or installation or by alterations or repairs carried out without the Supplier or Manufacturer’s consent in writing.
(c) the Customer’s failure to follow the Supplier or Manufacturer’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the goods (if there are none the trade practice in respect of the goods).
(d) fair wear and tear, willful damage, negligence, or abnormal working conditions.
(e) accidental damages.
(f) foreign objects (such as lamps, fuses, batteries etc).
11. Limited Warranty
11.1 The Customer must inspect and check all goods received as soon as practicable upon unloading/delivery. To the extent permitted by law, no claim by the Customer for shortages of goods may be made unless such claim is notified to the Supplier within 48 hours of receipt. Any such claims will be subject to the Supplier’s approval.
11.2 The Customer shall upon delivery examine the Goods and within fourteen (14) days notify the Supplier in writing of any nonconformity discovered. The Supplier shall have no responsibility for any nonconformity which should have been notified to the Supplier as a result of the Customer’s examination.
11.3 A warranty claim is only payable/accepted when a settlement agreement is approved by the manufacturer in writing and signed and sealed by both the Customer and the Supplier.
11.4 Unless otherwise agreed to in writing, all goods will be supplied and delivered in accordance with the Supplier’s standard practice and shall be subject to the Supplier’s normal tolerances, limitations and variations of the following: dimensions, weight, shape, composition, mechanical properties, structure, quality and service conditions.
11.5 Any statements made by Supplier as to weight, length, quantity or other characteristics of goods are approximate and the Supplier may supply goods on an actual or calculated basis (calculated in accordance with applicable Australian standards).
11.6 The Supplier’s statements as to weight, length, quantity or other characteristic are final (in the absence of manifest error) and will not be contested by the Customer unless the Customer has given the Supplier written notice of any error within 14 days of delivery and a reasonable opportunity to examine and re-test the goods before they are used or dealt with.
11.7 The Customer hereby further acknowledges, warrants and declares with and to the Supplier that:
(a) the Customer has carefully examined the goods and has found no defects therein.
(b) notwithstanding the defects (if any) in the goods which the Customer’s examination thereof has revealed and/or which have been drawn to the Customer’s attention is satisfied with the quality and condition thereof and the Customer has relied upon his own skill and judgment in selecting the goods.
(c) the Customer has not made known to the Supplier any particular purpose for which the goods are being acquired and the Supplier gives no warranty to the Customer that the goods are suitable for any purpose.
(d) the Customer has made known to the Supplier the particular purpose for which the goods are being acquired and has satisfied itself that the goods are reasonably fit for the purpose and the Customer does not rely on the skill or judgment of the Supplier as to the fitness or possible fitness of the goods for that purpose.
(e) the Supplier is not the manufacturer of the goods and is not responsible for any warranty or maintenance of the goods and shall hold the Supplier harmless in respect of any claim for warranty or defect in the goods.
12.1 If, through circumstances beyond the control of the Supplier, the Supplier is unable to effect delivery or provision of goods or services, then the Supplier may cancel the Customer's order (even if it has already been accepted) by notice in writing to the Customer. The Supplier will be under no liability to the Customer or any third party for any damages or losses, direct or indirect, resulting from such cancellation.
12.2 No purported cancellation or suspension of an order or any part thereof by the Customer is binding on the Supplier after that order has been accepted by the Supplier.
12.3 Notwithstanding clause 12.2, the Supplier may agree to suspend or cancel an order or any part thereof subject to that agreement being in writing and the Customer paying to the Supplier what the Supplier considers to be a fair and reasonable amount to fully compensate it for any costs, expenses, loss of profit and consequential damage that it has or may suffer in relation to such suspension or cancellation.
13. Binding on Parties
13.1 These Conditions shall be binding on the Supplier and the Customer, their heirs, executors, administrators and permitted assigns.
14. Confidential Information
14.1 The Customer undertakes that they will not, during the term of the contract and at any time thereafter (except as required by the law or by the Supplier) disclose to any person any confidential information of or relating to the Supplier of which it has become possessed as a result of the contract or the negotiations proceeding the contract including, but not limited to, the terms of the contract.
15. Governing Law
15.1 These Conditions are to be construed in accordance with the laws from time to time in the State of
16.1 To the full extent permitted by law, the Customer will indemnify the Supplier and keep the Supplier indemnified from and against any liability and any loss or damage the Supplier may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Conditions by Customer or its representatives.
17. Force Majeure
17.1 The Supplier is not liable for delay in performing, or non-performance, of any of its obligations under these Conditions caused by unforeseeable circumstances beyond the Supplier’s reasonable control (including, without limitation, acts of God, civil or military authority, accidents, earthquakes, strikes, the elements, labour disputes, shortage of suitable part or components or other materials, mechanical breakdown, fire, flood, tempest and war) and in such circumstances, the Supplier will be entitled to a reasonable extension of time for the performance of its obligations.
18. Intellectual Property
18.1 The Customer warrants to the Supplier that all documents provided by the Customer are accurate and the Supplier is entitled to use all such documents for the purposes of the contract and that such use does not infringe any third party’s intellectual property rights.
18.2 The Customer indemnifies the Supplier against all claims and all losses and damages incurred by the Supplier as a result of documents provided by the Customer to the Supplier for the purposes of or in the course of supply of the goods or services breaching a third party’s intellectual property rights.
18.3 The goods and services provided by the Supplier contain intellectual property rights that belong to the Supplier and the Customer must do all things reasonably required by the Supplier to ensure that it retains such ownership.
19.1 The Customer irrevocably appoints the Supplier and each of its authorised officers, jointly and severally, to be its attorney to do any act or thing which the Customer is required to do under the contract, if the Customer is in default (including executing and registering instruments). The Supplier may exercise its powers even if this involves a conflict of duty and even if it has a personal interest in doing so, A third party may rely on a copy of the Conditions certified by a solicitor as evidence of the appoint of the Supplier as the attorney of the Customer. The Customer must ratify all acts and things done by the Supplier and its authorised officers in the exercise of this power of attorney.
20. Cancellation of Orders, Returns and Claims
20.1 Specially ordered or manufactured items will not be accepted for credit.
20.2 Stock items will not be accepted for return without prior approval from the Supplier.
20.3 Freight charges on returns are the responsibility of the Customer.
20.4 Where a part has been incorrectly supplied by the Supplier, a full credit will be provided and the freight charges will be credited, provided that the goods are returned in good order and in a manner specified by the Supplier in each case.
20.5 Returns will not be accepted unless clearly marked with invoice number/s.
20.6 Returns will only be accepted within 14 days of delivery provided the goods are unused, in original packaging and in good order and saleable condition.
20.7 All returns are subject to a 25% restocking fee.
20.8 The Supplier reserves the right to accept any part for credit after the initial 14 day period. In this case a 50% restocking fee will apply.
20.9 The Supplier reserves the right to reject or accept any Part(s) that fails to comply with the above terms. Any rejected part(s) will be returned at the Customer’s expense.