These Standard Terms and Conditions of Sale (the “Agreement”) govern transactions by which Buyer purchases Goods and Services from 4tfi (ABN 76 621 336 516) (“Seller”).

 

1. DEFINITIONS

In these terms and conditions, unless the contrary intention appears:

1.1 “Business Day” means a day that is not a Saturday, Sunday or public holiday in New South Wales or, for deliveries of Goods, at the place of delivery.

1.2.”Buyer” means any person or persons, company or business entity to whom the Seller sells or supplies, or proposes to sell or supply, Goods or Services.

1.3.”Goods” means the materials or products supplied or sold by the Seller to the Buyer from time to time.

1.4.”GST” has the same meaning as in the A New Tax System (Goods & Services Tax) Act 1999 (Cth) (as amended)

1.5 “Insolvency Event” means the happening of any of the following events in relation to a party: (a) the party is unable to pay all the party’s debts as and when they become due and payable or the party has failed to comply with a statutory demand as provided in section 459F of the Corporations Act or the party is deemed to be unable to pay the party’s debts under section 585 of the Corporations Act; (b) the party is bankrupt or files for bankruptcy; (c) an application is made to a court for the party to be wound up or a winding up order is made in respect of it; (d) a controller, administrator or liquidator is appointed, as defined in the Corporations Act; or (e) anything analogous or having substantially similar effect to any of the events listed above happens under any law.

1.6. “Order” means a purchase order, or acceptance of a Quote, issued by the Buyer to the Seller in writing (including via email, text message or a system generated document.

1.7.”Quote” means any written quotation for Goods or Services.

1.8. “Services” means any services provided by the Seller.

1.9 “Transaction Documents” means a document containing specific details and terms related to each individual transaction such as a quotation, statement of work, schedule or invoice. Transaction Documents are part of this Agreement only for those transactions to which they apply.  Each transaction is separate and independent from other transactions.

 

2. GENERAL

2.1 Buyer accepts the Agreement by (i) issuing an Order to Seller, (ii) confirming acceptance by email or otherwise), iii) using the Goods or Services, or allowing others to do so, or iv) making any payment for the Goods or Services. Goods or Services becomes subject to this Agreement when Seller accepts Buyer’s order by i) sending Customer a confirmation of acceptance, ii) sending the Good(s) to Buyer, or iii) providing the Service to Buyer.

2.2 Buyer acknowledges that the Agreement is to the exclusion of any other terms that Buyer tries to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.3 Any quotation by Seller is not and shall not be interpreted as an obligation to sell Goods or supply Services.

2.4 All drawings, specifications & details furnished by Seller or contained in catalogues, price lists or on Seller’s website are by way of general description only of the Goods and shall not form part of this Agreement.

2.5 If there is a conflict among the terms of this Agreement and Transaction Documents, the terms of a Transaction Document prevail over this Agreement.

2.6 As reasonably required by Seller to fulfil its obligations under this Agreement, Buyer agrees to provide Seller with sufficient and safe access to Buyer’s premises and information all at no charge to Seller.  Seller is not responsible for any delay in performing or failure to perform caused by Buyer’s delay in providing such access or performing other Buyer responsibilities under this Agreement.

 

 

 

3. PRICE

3.1 The price (Price) or Seller’s method of charging for the Goods and/or Services will be as set out in Seller’s quotation or such other price as agreed in writing by Seller.

3.2 If a Transaction Document provides an estimated total charge for time and materials, the estimate is for planning purposes only.  Seller invoices charges based on actual time and materials expended.

3.3 If the cost of Goods to Seller increases due to any factor beyond Seller’s control including, but not limited to, material costs, labour costs, alteration of exchange rates or duties, or changes to delivery rates, Seller can increase the price prior to delivery by informing the Buyer and seeking Buyer’s consent. If Buyer does not consent to the increase in price then Seller may terminate the transaction.

3.4 The Price is exclusive of fees for packaging and transportation / delivery unless otherwise stated.

3.5 Prices quoted are based on the full quantities specified and do not necessarily operate pro rata for any greater or less quantities.

3.6 In the event of the suspension of manufacture or supply on the Buyer’s instruction, or lack thereof, or due to the inability of Buyer to accept the Goods for any reason on or after the date on which they are ready for delivery, Buyer shall be liable for all extra costs and losses thereby incurred by Seller.

3.7 If Buyer cancels or modifies any Order or part Order for Goods or Services with specifications requested by Buyer at any time after the Seller has received the Order then without prejudice to any other rights Seller has against Buyer Seller reserves the right to charge Buyer for materials already acquired for the Order together with the cost of any labour and tooling expended to the date of such cancellation or alterations.

3.8 If Buyer modifies the scope of work on any Order, the Seller will adjust the Price to include additional Goods and Services charges.

3.9 Buyer must pay GST or any other tax duty, levy, tariff or charge applicable to the supply of the Products or services in addition to, and at the same time as, payment of the price. Seller will provide Buyer with a tax invoice as required by law.

 

4. PAYMENT

4.1 The Seller will invoice the Buyer for the Price either (i) on or at any time after delivery of the Goods or completion of Services or (ii) where the Goods are to be collected by Buyer or where Buyer wrongfully does not take delivery of the Goods, at any time after Seller has notified Buyer that the Goods are ready for collection or Seller has tried to deliver them.

4.2 Amounts are due on receipt of invoice and Buyer must pay within 5 Business Days of the date of Sellers invoice unless otherwise specified in a Transaction Document.

4.3 If Buyer does not pay within the period set out above, Seller will suspend any further deliveries to Buyer and without limiting any of Sellers other rights or remedies for statutory interest, may charge Buyer interest on any overdue monies at the rate which is the lessor of 5% above the rate charged by Seller’s major banker for commercial overdraft balances of over $100,000 and the maximum permitted by law.

4.4 All payments must be made in Australian Dollar unless otherwise agreed in writing.

4.5 Buyer must pay all amounts due under this Agreement in full without any deduction or withholding except as required by law and Buyer is not entitled to assert any credit, set-off or counterclaim against Seller in order to justify withholding payment of any such amount in whole or in part.

 

5. DELIVERY

5.1 Seller will arrange for the delivery of the Goods to the address specified in the Transaction Document or to another location agreed in writing between Buyer & Seller.

5.2 If Buyer does not specify a delivery address or if both Buyer & Seller agree, Buyer must collect the Goods from Seller’s premises.

5.3 Where manual delivery of Goods is not possible, Buyer shall at Buyer’s expense provide labour, cranes or forklift and reasonable access to point of delivery for offloading of Goods.

5.4 Subject to the specific terms of any special delivery service, delivery can take place at any time of the day and must be accepted at any time between 7am to 5pm on any Business Day.

5.5 If Buyer does not take delivery of the Goods Seller may, at Seller’s discretion and without prejudice to any other rights:

(i) store or arrange for the storage of the Goods and will charge Buyer for all associated costs and expenses including, but not limited to, transportation, storage and insurance; and / or

 (ii) make arrangements for the re-delivery of the Goods and will charge Buyer for the costs of such re-delivery; and/or

(iii) after 10 business days, resell or otherwise dispose of part or all of the Goods and charge Buyer for any shortfall below the price of the Goods.

5.6 If redelivery is not possible as set out above, Buyer must collect the Goods from Seller’s premises and will be notified of this. Seller can charge Buyer for all associated costs including, but not limited to, storage and insurance.

5.7 Any dates quoted for delivery are estimates only, and time is not of the essence. Seller will not be liable for any delay in delivery of the Goods that is caused by a circumstance beyond Seller’s control or Buyer’s failure to provide Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

5.8 Seller can deliver the Goods by instalments, which will be invoiced and paid for separately. Any delay in delivery or defect in an instalment will not entitle Buyer to cancel any other instalment.

 

6. INSPECTION & ACCEPTANCE OF GOODS

6.1 It is Buyer’s responsibility to ensure the Goods ordered conform to Buyer’s requirements and are suitable and sufficient for Buyer’s purpose.

6.2 Seller warrants that the Goods will conform to their specifications and that Seller will perform the Services using reasonable care and skill. Seller excludes all other warranties, express and implied other than those that cannot be excluded under the Competition and Consumer Act 2010 (Cth) or other legislation.  To the extent permitted by law, where any terms, conditions or warranties are implied by law into the Agreement which the law expressly provides may not be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent, the liability of Seller to Buyer under such implied terms, conditions or warranties is limited, at the option of Seller, to the repair or replacement of goods or services, or payment of the cost of repairing or replacing the goods or services.

6.3 Buyer must inspect the Goods on delivery or collection. If Buyer identifies any damage or shortages, Buyer must inform Seller in writing within 3 Business Days of delivery, providing details and give the Seller, if requested, an opportunity to carry out an inspection.

6.4 Subject to Buyer’s compliance with clause 6.3 and to the extent permitted by law, Seller’s sole obligation, if the Goods or Services do not function as warranted, is at Seller’s option, to either repair or replace the Goods or Services or accept return of the Goods/Services for a refund.

6.5 To the extent permitted by law, Seller will be under no liability or further obligation in relation to the Goods if (a) Buyer makes any use of the Goods after giving notice under the clause above relating to damages and shortages; (b) the defect arises because Buyer did not follow Seller’s oral or written instructions about the storage, commissioning, installation, use and maintenance of the Goods; (c) the defect arises from normal wear and tear of the Goods; and/or (d) the defect arises from misuse or alteration of the Goods, accident, modification, negligence, wilful damage or any other act by Buyer, Buyer’s employees or agents or any third parties.

6.6 Buyer bears the risk and cost of returning the Goods.

 

7. RISK & TITLE

7.1 The risk in the Goods will pass to Buyer on delivery.

7.2 Title to the Goods will not pass to Buyer until Seller has received payment in full (in cash or cleared funds) for the Goods.

7.3 Until title to the Goods has passed to Buyer, Buyer must (a) store the goods separately and not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; and/or (b) keep the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.

 

8. PERSONAL PROPERTY SECURITIES ACT

8.1 In this clause 8, (i) “PPS Act” means the Personal Property Securities Act 2009 (Cth), (ii) “Security Interest” has the meaning given to “security interest” in the PPS Act, and (iii) terms have the meanings given to them in the PPS Act.

8.2 Seller reserves a purchase money security interest in the Goods until Seller receives the amounts due. 

8.3 Buyer must not do or permit anything to be done, or omit to do or permit not to be done, anything which would adversely affect any Security Interest which Seller has under this Agreement or which would adversely affect Seller’s position as the secured party in respect of any Security Interest.  Without limiting this paragraph, Buyer will not sell, hire, dispose, sublet, or part with possession of any property over which Seller has a Security Interest under this Agreement, without Seller’s prior written consent. 

8.4 For the purposes of section 20(2)(b)(i) of the PPS Act, any Security Interest arising in Seller’s favour under this Agreement is in collateral identified in a Transaction Document and in any proceeds to which Buyer is entitled.       

8.5 Buyer acknowledges that Seller may, at the cost of Buyer, register one or more financing statements or financing change statements in relation to Seller’s Security Interests.  To the extent permissible, Buyer waives its right under section 157 of the PPS Act to receive notice of any verification statement relating to the registration of any such financing statement or any related financing change statement.

8.6 Buyer must provide Seller with all information that Seller requires to ensure that any registration of Seller’s Security Interest on the register is, and remains, fully effective or perfected (or both), and that the Security Interest has the priority required by Seller.

8.7 To the extent the PPS Act allows them to be excluded, the enforcement provisions in Chapter 4 of the PPS Act do not apply to this Agreement.

8.8 The parties agree not to disclose information of the kind mentioned in section 275(1) of the PPS Act, except in the circumstances required by sections 275(7)(b) to (e) of the PPS Act.  Buyer agrees that it will only authorise the disclosure of information under section 275(7)(c) of the PPS Act or request information under section 275(7)(d) of the PPS Act if Seller approves.  Nothing in this paragraph will prevent any disclosure by Seller that Seller believes is necessary to comply with Seller’s other obligations under the PPS Act.

8.9 Buyer agrees to pay or reimburse Seller on demand for all of Seller’s costs, charges and expenses in connection with any action taken by Seller under or in relation to the PPS Act, including any registration, or any response to an amendment demand or a request under section 275 of the PPS Act.

8.10 As long as the Goods have not been resold, permanently installed, or irreversibly incorporated into another product, and without limiting any other right or remedy Seller may have, Seller can at any time ask Buyer to return the Goods and, if Buyer fails to do so promptly, enter any of Buyer’s premises or of any third party where the Goods are stored in order to recover them.

 

9. TERMINATION

9.1 Either party may terminate a transaction under this Agreement where the other party materially breaches the agreement and fails to remedy the breach within 30 days of written notice of the breach.

9.2 At Seller’s discretion and without prejudice to any other right it may have, if (i) an Insolvency Event occurs in relation to Buyer or (ii) Seller has reasonable grounds for doubting the credit of Buyer, Seller may suspend or terminate a transaction or require payment before or on delivery of the Goods or Services (notwithstanding the terms of payment applicable to the Products), or cancel any undelivered or uncompleted Goods or Services under the Agreement, and may retain any monies paid by Buyer in relation to the transaction and apply such monies against any loss or damage incurred by it.

9.3 Upon termination of this Agreement by Seller, Seller is entitled to (i) payment for Goods delivered and Services performed up to the date of termination and (ii) any termination fee set out in a Transaction Document.

9.4 Termination of this Agreement does not affect the accrued rights or remedies of either party. Any terms that by their nature extend beyond the Agreement termination remain in effect until fulfilled and apply to successors and assignees.

 

10. LIMITATION OF LIABILITY

10.1 Regardless of the basis on which Buyer is entitled to claim damages from Seller (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), Seller’s entire liability for all claims in the aggregate arising from or related to each Good or Service or otherwise arising under this Agreement will not exceed the amount of any actual direct damages up to the charges for the Good or Service that is the subject of the claim. 

10.2 Notwithstanding anything else in this Agreement, Seller will have no liability to Buyer, howsoever arising (whether under contract, tort (including negligence) or under statute), for any indirect or consequential damages, special or exemplary damages, loss of profit, loss of revenue, anticipated savings or loss of business opportunity.

 

11. COMMUNICATIONS

11.1 All notices under this Agreement must be in writing and signed by, or on behalf of, the party giving the notice (or a duly authorised officer of that party).

11.2 Notices will be deemed to have been duly given (a) when delivered, if delivered by courier or other messenger (including registered mail) during the normal business day of the recipient; (b) when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated; (c) on the 3^rd business day following mailing, if mailed by AUSPOST

11.3 All notices under this Agreement must be addressed to the most recent address, email address or fax number notified to the other party.

 

12. FORCE MAJEURE

12.1 Neither party shall be liable for any failure nor delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.

 

13. GENERAL

13.1 No waiver by Seller of any breach of this Agreement by Buyer shall be considered a waiver of any subsequent breach of the same or any other provision.

13.2 If one or more of these terms is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these terms, which will remain valid and enforceable.

13.3 This Agreement is governed by and interpreted according to law of New South Wales. All disputes arising under this Agreement are subject to the exclusive jurisdiction of the courts of New South Wales.

13.4 Each party will keep confidential information of the other party confidential and will not disclose or use such confidential information without the consent of the other party. Confidential Information is information which is not in the public domain which the disclosing party notifies is confidential or a reasonable person would expect to consider confidential.

13.5 This Agreement and any transaction under it does not create an agency, joint venture, or partnership between Buyer and Seller.