These Standard Terms of Trade shall apply to and form part of any contract for supply entered into by Northwire Australia (hereinafter referred to as NWA) including any contract arising from oral acceptance of repeat or further orders for goods previously supplied, and shall terminate cancel and supersede any previous written or oral arrangements and understandings (if any) between NWA and the customer.
1. QUOTATIONS. A quotation is not an offer. An order placed pursuant to quotation is not binding on NWA unless and until accepted by NWA either in writing or by delivery of goods ordered.
2. PURCHASE ORDERS. When ordering an official order is to be submitted showing order number, sales tax exemption certificate number (if applicable) and full description of goods to ensure the order is correctly filled. The prices, description and quantities given in quotations will be subject to revision if any deviation is shown on the customer order.
3. CANCELLATION OF ORDERS. Orders can not be cancelled without NWA’s written consent and then only under terms that will indemnify NWA against loss.
4. DELIVERY. (a)Unless otherwise agreed in writing the method of carriage of goods shall be at the discretion of NWA .
(b)Any time or date nominated by NWA for delivery is an estimate only. Delivery points are at the address appearing on the customers account unless written instructions are given to NWA at the time of order when the point of delivery will be shown on the delivery docket. By permitting or acquiescing to the delivery of goods the customer has warranted that the person by action or neglect receiving delivery of the goods is authorised to take delivery on the customers behalf and shall have bound the customer to the terms herein.
(c)NWA shall not be liable for any loss, cost (including consequential loss of profit), damage or expense incurred or suffered as a result of or in connection with the failure to deliver resulting from (directly or indirectly) some matter, thing or event outside the reasonable control of NWA and its suppliers or contractors including, without limitation; industrial disputes, shortage of material or labour or an order or direction of any governmental or public authority or instrumentality.
(d)At NWA’s option it may at any time by notice in writing to the customer extend the period for delivery or cancel the order and NWA shall not be liable for any cost, loss (including consequential loss of profit), damage or expense incurred or suffered as a result of or in connection which such extension or cancellation. Delivery shall not be refused where goods are in accordance with the order. Storage and re-delivery costs shall be at the expense of the customer.
(e)Should NWA be prevented from delivering part of the goods by any reason of the causes stated in sub-clause (c) above, NWA may nevertheless deliver the remaining goods at the time established for the delivery. The customer shall pay for the specific items delivered the same proportion of the price as the items delivered bears to the whole of the goods agreed to be sold.
5.DELIVERY TO THIRD PARTIES. In the event that the goods supplied under the contract are a t the direction of the customer delivered to a third party or parties, the customer shall produce agreement by the third party to be bound by the terms of this contract and the customer indemnifies NWA against any loss or damage suffered by NWA by reason of the customer’s failure to procure such third party to perform or to agree to be bound by the terms on this contract.
6.ADDITIONAL CHARGES. (a)NWA reserves the right to charge the customer for any costs, charges or expenses whatsoever that NWA may incur on behalf of the customer.
(b)Without in any way limiting the generality of sub-clause (a) NWA shall also have the right to charge any costs, charges or expenses incurred as a result of:-
(i) vehicle or wagon detention not caused or contributed to by NWA (for whatever reason);
(ii) demurrage on ships in consequence of an act or omission of the customer; or
(iii) any special requirements or stipulations of the customer agreed to by NWA but not provided for in this contract.
7.STORAGE. If NWA notifies the customer that the goods are ready for delivery an the customer requests NWA to hold the goods on its behalf or refuses to accept delivery, such goods will be held by NWA at the customers risk and NWA shall be entitled to charge a reasonable storage in respect of the goods.
8.CLAIMS. (a)The customer shall inspect the goods immediately upon delivery and forthwith advise NWA of any damages to the goods or other matter or thing whereby it is alleged that the goods are not in conformity with the contract relating to their supply. The customer shall within 48 hours of delivery and before the goods are used, processed, sold or otherwise dealt with by the customer give written notice to NWA of the allegations and details in respect thereof. Any goods referred to in a notice given pursuant to this clause shall be left in the state and condition in which they were delivered until such time as NWA or its duly authorised agent has inspected the goods, such inspection NWA undertakes to carry out within a reasonable time after service of such notice. The customer shall give access to NWA to any goods complained of. If the goods are not left in the state and condition in which they were delivered, or access is not given to NWA to the goods, the customer shall be deemed to have accepted the goods and shall pay the purchase money therefor at the due time.
(b)If NWA delivers an incorrect quantity of goods the customer shall only be entitled to reject the excess over the quantity ordered.
9.RISK. Where delivery of goods is in the range or distance within which NWA delivers by it’s own transport, responsibility for carriage and care of the goods will rest with NWA whilst the goods remain on NWA’s vehicle. In all other circumstances, the risk of loss or damage to goods shall be borne by the customer on and from departure of the goods from the works or store of NWA as the case may be. The customer shall at his/her expense, insure the goods in his/her name and the name of NWA against loss or damage for their replacement value and keep them so insured until the goods are paid for in full.
10.SPECIAL ITEMS. All orders of items not in NWA’s normal standard stock and which must be specially made must be accompanied by a proper drawing in detail with full specification of all measurements and materials to be used and no claims for returns or credit on any such items will be considered unless the item is shown to be manufactured incorrectly.
11.RESERVATION OF TITLE. Title/Property in the goods shall not pass to the customer until all amounts owing to NWA by the customer whether under an order relating to those goods or on any other account whatsoever are paid in full. Until that time:-
(a)the customer shall hold the goods solely as bailee for NWA ;
(b)the customer shall store the goods separately from other goods and in a manner which clearly identifies them as the property of NWA , PROVIDED HOWEVER that the customer may:-
(i) convert the goods or incorporate the goods into a new product or new products provided however that if the customer does so, then to the extent of the lesser amount owing to NWA by the customer an the value of the goods so converted or incorporated, the customer shall hold his/her interest in the new products on trust for NWA ; and
(ii) sell the goods or the new products in the ordinary course of the customers business provided however that the customer does not hold himself out as an agent of NWA and further provided that the customer holds separately and on trust for NWA and does not pay into an overdrawn bank account such part of the proceeds of the sale of goods or new products as equals the lesser of the amount owing to NWA by the customer and the value of the goods converted or incorporated into the new products so sold as the case may be.
(c)NWA may forthwith cancel the customers right under sub-clause (b) above to convert or incorporate the goods and sell the goods and the new products and may enter upon premises at which its goods or new products are stored and retake possession of the goods or take possession of the new products if:-
(i) being a corporation or natural person the customer becomes subject to the laws relating to insolvency; or
(ii) the customer parts with possession of the goods other than in the ordinary course of business; or
(iii) in the reasonable opinion of NWA the customer breaches any of these terms.
12.WARRANTIES AND CLAIMS FOR DAMAGES. (a)With the exception of the conditions, warranties, rights and remedies referred to in sub-clause (b) below, all conditions and warranties (and rights and remedies relating to the breach thereof) whatsoever which would, but for this sub-clause have been implied into any contract for the sale of goods between the customer and NWA are negative and excluded from any such contract.
(b)Certain legislation (including the Trade Practices Act 1974 and various legislation of the States and Territories of Australia) has the effect of implying certain conditions and warranties into, and of granting certain rights and remedies in respect of contracts with customers which may not be excluded, restricted or modified. Nothing contained in these conditions shall exclude, restrict or modify any such conditions, warranties, rights or remedies but the liability of NWA for breach of any such conditions or warranties shall, where legally permissible, be limited, at the option of NWA to:-
(i) replacement or repair of the relevant goods or payment of the cost therefor; or
(ii) supply of equivalent goods or payment of the cost of acquiring such goods.
(c)NWA shall be under no liability to the customer for any loss or damage to persons or property or for death or injury caused by act or omission (including negligent acts or omissions) of NWA , its servants or agents.
(d)The customer acknowledges and agrees that he has used his/her own skill and judgement in selecting the goods and neither NWA nor any person acting or purporting to act on its behalf has made any representation or warranty with respect to the goods or their supply which is not set out in writing.
(e)The customer acknowledges that the goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption.
(f)The customer has the responsibility for ensuring that the goods are not used for any purpose for which they are not suitable.
13.SALES TAX. Prices do not include sales tax. Should any sales tax or any other tax, fee, levy or duty imposed by any competent Federal or State authority be payable on any goods supplied by NWA , such tax, fee, duty or levy will be paid by the customer.
14.PAYMENT. (a)Payment of the price of goods and any other monies payable by the customer pursuant to this contract shall (unless the prior written consent of NWA is given to the contrary) be made within 30 days of the end of the month in which the goods are delivered. HOWEVER NWA reserves the right to require full payment in cash prior to delivery without giving any reason therefor.
(b)Without prejudice to the other right sand remedies of NWA , should the customer fail to pay monies due, NWA may charge interest on overdue accounts at the of 1% above the current prime rate or such other rate as may be notified to the customer from time to time.
(c)A customer is not entitled to withhold any payment because of any claims in respect of faults or otherwise, or any claimed right to set off sums owing or which may become owing to NWA or any related corporation or for any other reason whatsoever.
(d)Should the customer fail to pay monies due or otherwise breach these terms, NWA may suspend or cancel further deliveries (in part or in whole) and all amounts owing to NWA by the customer shall become immediately due and payable.
(e)The customer will reimburse NWA for all costs incurred in collecting overdue monies or otherwise enforcing this contract.
15.LIMITATIONS. NWA shall not accept responsibility or liability under any circumstances where goods are replaced, altered, added to or in any way interfered with by any person other than an NWA authorised representative. Refunds, credits or replacement of any goods subject to this agreement shall be at the sole discretion of NWA . No responsibility is accepted for galvanised or treated or coated products damaged, cut or modified or altered by the customer. Where goods are sold as used, second grade or down grade materials, no responsibility or warranty as to condition is given by NWA.
16.LEGAL CONSTRUCTION. (a)These Standard Terms of Trade shall override all others inconsistent therewith, not withstanding that they are printed on or included on the customer’s order or other documents.
(b)These Standard Terms of Trade shall be governed by and constructed in accordance with the Laws of Queensland and the parties submit to the jurisdiction of the courts of Queensland and all courts of appeal therefrom.
(c)No waiver of a term of this or any similar agreement shall be construed as a further continuing waiver of that term.
(d)As far as the obligations of the customer are concerned, time is of the essence.
NO CLAIMS FOR SHORTAGES RECOGNISED AFTER 48 HOURS FROM DELIVERY