TERMS AND CONDITIONS OF TRADE
To the fullest extent legally possible all contracts, dealings and/or arrangements made between Wiltrading STACE and the Customer relating to Goods are subject to the following Terms and Conditions of Trade unless otherwise agreed in writing.
In these Terms, unless the context otherwise requires:
(a) “Accession” means any of the Goods which are installed in, or affixed to, other goods;
(b) “Acknowledgement” has the meaning given to it at clause 6(d);
(c) “ACL” means Australian Consumer Law Schedule of the Competition and Consumer Act 2010 (C’th);
(d) “Amount Owing” means at any time all amounts payable by the Customer to Wiltrading STACE at that time in connection with the Goods whether or not due for payment under these Terms;
(e) “Assets” has the meaning given to it in clause 37(h)(i.);
(f) “Characteristics” has the meaning given to it in clause 47(b)(i.);
(g) “Contract” means:
(ii.) for the supply of Goods pursuant to an Order, the contract (which includes these Terms) formed for the supply of the Goods to the Customer upon an Acknowledgement;
(h) “Customer” means the customer specified in an application for commercial credit with Wiltrading STACE, (or if there is no such application, the person or entity placing the Order, or on whose behalf the Order is placed, with Wiltrading STACE);
(i) “Force Majeure” means any act, event or cause which is beyond the reasonable control of Wiltrading STACE, including (without limitation):
(i.) act of God, peril of the sea, accident of navigation, war, sabotage, riot, insurrection, civil commotion, national emergency (whether in fact or law), martial law, fire, lightning, flood, cyclone, earthquake, landslide, storm or other adverse weather conditions, explosion, power shortage, strike or other labour difficulty (whether or not involving employees of Wiltrading STACE), epidemic, quarantine, radiation or radioactive contamination;
(ii.) action or inaction of any government or governmental or other competent authority (including any court of competent jurisdiction), including expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, regulation, decree or other legally enforceable order; and
(iii.) breakdown of plant, machinery or equipment or shortages of labour, transportation, fuel, power or plant, machinery, equipment or material;
(j) “Full Payment” has the meaning given to it in clause 3(c);
(k) “Goods” means any goods, products, services and/or materials supplied, or to be supplied, by Wiltrading STACE to the Customer;
(l) “Imposts” has the meaning given to it in clause 13;
(m) “New Entity” has the meaning given to it clause 19(b);
(n) “Order” has the meaning given to it in clause 6(d);
(o) “PPSA” means the Personal Property Securities Act 2009 (C’th);
(p) “Processed Goods” means Goods which after their delivery, become part of a product or mass by being manufactured, processed, assembled, commingled or otherwise dealt with in such a way that their identity is lost in the product or mass;
(q) “Restructure” has the meaning given to it at clause 19(a);
(r) “Terms” means these terms and conditions of trade as modified or amended in relation to a particular Order by a written Acknowledgement or in accordance with clause 38;
(s) "Tooling" includes all tooling, dies, moulds or patterns, gauges and other similar equipment;
(t) “Wiltrading STACE” means jointly and severally, Wiltrading STACE Pty Ltd ACN 003 437 527 and Wiltrading STACE Defence Pty Ltd ACN 103 397 762;
(u) “Wiltrading STACE Group” means Wiltrading STACE and each of its subsidiaries, affiliates, associated companies and related entities;
(v) "Working Documents" includes structural, construction or other drawings, designs, specifications, plans, descriptions, prototypes and samples relating to the Goods, their manufacture or, where relevant, the location at which the Goods will be used or installed; and
(w) the terms “financing statement”, “proceeds”, “purchase money security interest”, “security agreement”, “security interest” and “verification statement” have the respective meanings given to them under, or in the context of, the PPSA.
a. Wiltrading STACE stands by its goods and services. Accordingly Wiltrading STACE provides a warranty that (subject always to the other provisions of these Terms) the:
(i) goods sold by it are provided with a warranty that they will be free of material defect for the warranty period extended to Wiltrading STACE by the manufacturer of the goods; and
(ii) services provided by Wiltrading STACE will be free from material defect for 3 months from the date of supply,(“Warranty Period”).
b. In no event shall Wiltrading STACE be liable for any claim made outside this Warranty Period or for any other claims or damages including but not limited to, claims for faulty design, negligent or misleading advice, incidental or consequential damages or injury to any other person, corporation or entity.
c. The warranty shall not apply where such repair or parts replacement is required because of accident, neglect or misuse, or where equipment is modified, installed or repaired otherwise than in accordance with Wiltrading STACE's maintenance and servicing instructions, or where any component or accessory not supplied by Wiltrading STACE is attached.
d. This warranty does not include consumables such as batteries or light sources (e.g. bulbs).
e. All claims are limited to the repair or the replacement of the goods and the resupply of the services only and do not include transportation charges.
a) Payment for Goods purchased from Wiltrading STACE must be paid at the time the Customer places its Order unless Wiltrading STACE has approved a credit account for the Customer in which case payment must be made within 30 days from the invoice date unless otherwise agreed in writing by Wiltrading STACE.
(b) All payments by the Customer must be made without deduction or set-off of any kind.
(c) Wiltrading STACE may apply a payment received from the Customer to any Amount Owing (including part payment of an invoice, administration, collection and other costs) in any order.
(d) Wiltrading STACE is entitled to set-off or deduct against any Amount Owing, any amount payable by Wiltrading STACE to the Customer.
(e) Wiltrading STACE may require the Customer to pay a credit card surcharge (in addition to any payment) of up to 2.5% plus GST of the payment amount where the Customer pays by credit card.
(f) A payment dishonour and administration fee of$100 plus GST may be charged by Wiltrading STACE if a Customer’s payment is dishonoured in any way. This fee will be in addition to any fees the Customer’s financial institution or credit provider my charge the Customer.
(g) The Customer must pay Wiltrading STACE interest on Wiltrading STACE’s overdue accounts at a rate of 12% per annum calculated daily.
3. Retention of Title and liability for Goods:
(a) Immediately upon delivery, the Customer accepts risk and liability for the Goods.
(b) A document signed by an officer of Wiltrading STACE:
(i.) identifying Goods; and/or
(ii.) certifying that monies are owing to Wiltrading STACE,
will be conclusive evidence of the same except in the case of manifest error.
(c) Wiltrading STACE retains legal and equitable title in any Goods supplied, or to be supplied, to the Customer until the entire Amount Owing has been received by Wiltrading STACE (“Full Payment”). Until Full Payment has been received, the following terms apply:
(i.) Notwithstanding that title in the Goods remains with Wiltrading STACE until Full Payment, the Customer may sell or use the Goods in the ordinary course of the Customer’s business. As between the Customer and the purchaser of any item of the Goods, the Customer sells as principal and not as agent of Wiltrading STACE. The proceeds of sale of each item of Goods must be held by the Customer in a separate fund on trust for Wiltrading STACE and the Customer is under a duty to account to Wiltrading STACE for such proceeds. The creation of, or any failure of, any such trust shall not in any way limit the obligation of the Customer to pay an amount to Wiltrading STACE for Goods supplied.
(ii.) Until Goods are sold or used in a manufacturing or construction process, the Customer must keep the Goods safe and free from deterioration, destruction, loss or harm, clearly designate the Goods as the property of Wiltrading STACE, store them in such a way they are clearly identified as the property of Wiltrading STACE and keep full and complete records, firstly, of the physical location of the Goods and, secondly, the ownership of the Goods by Wiltrading STACE.
(iii.) Wiltrading STACE is irrevocably entitled at any time and from time to time before sale of any item of Goods by the Customer to inspect or to recover and retake possession of such Goods and otherwise exercise in relation to the Goods, any of its rights whether those rights are as owner and/or unpaid seller or otherwise and whether those rights are conferred by common law, contract, statute or in any other way. In order to exercise such entitlement, Wiltrading STACE and its agents are irrevocably authorised by the Customer to enter any of the Customer’s premises or vehicles or those of any third party. The Customer agrees to obtain the consent of any such third party to such entry by Wiltrading STACE and to indemnify Wiltrading STACE and its agents for any liability arising from any entry upon its, or third parties’, premises or vehicles. Wiltrading STACE and its agents agree to take all reasonable care in removing the Goods from such premises or vehicles but, to the extent this liability may be disclaimed by law, are not liable for any damage or injury to such premises caused by the removal of the Goods.
(iv.) The Customer may only install or affix the Goods to other goods (so that they become an Accession to those other goods) or use or permit the Goods to be manufactured, processed, assembled, commingled or otherwise dealt with (so that they become Processed Goods) in the ordinary course of its normal business.
(v.) The reservation of title and ownership under this clause 3 is effective whether or not the Goods have been altered from their supplied form, or commingled with other goods.
(vi.) the Customer must keep the Goods insured for their full value against all risks (and must promptly produce evidence of such insurance upon being requested to do so by Wiltrading STACE).
(d) The retention of title arrangement described in this clause 3 constitutes the granting of a purchase money security interest by the Customer in favour of Wiltrading STACE in respect of all present and after acquired Goods supplied by Wiltrading STACE to the Customer. The Customer must immediately, if requested by Wiltrading STACE, sign any documents, provide all necessary information and do anything else required by Wiltrading STACE to ensure that Wiltrading STACE’s purchase money security interest is a perfected security interest and the provisions of clause 37 will apply.
(e) The Customer will not enter into any security agreement that permits any other person to have or to register any security in respect of the Goods or any proceeds from the sale of the Goods, until Wiltrading STACE has perfected its purchase money security interest.
4. General Liability:
To the extent permissible at law (including under the ACL):
(a) Wiltrading STACE will not be liable for any claim arising after 10 days from delivery of Goods or performance of services (or at all once Goods have been unpacked, modified, on-sold or otherwise used or applied) after which there will be deemed to be unqualified acceptance;
(b) Wiltrading STACE will not be liable in any way for any contingent, consequential, indirect, special, punitive or similar damages or for any injury to person or property whether under a breach of warranty, these Terms, a Contract or negligence (commission, omission or advice) or other tort, strict liability, or otherwise and howsoever caused and the Customer acknowledges this limit of liability and agrees to limit any claim accordingly;
(c) no other term, condition, agreement, warranty, representation or understanding whether express or implied in any way extending to or otherwise relating to or binding upon Wiltrading STACE is made or given except where done so in writing and signed by an authorised officer of Wiltrading STACE or is explicitly set out in these Terms or any Contract; and
(d) Wiltrading STACE will not be liable for any claim relating to or arising from any alleged fault or defect, caused or contributed to by the Customer or any third party.
To the extent permissible at law (including under the ACL):
(a) if Wiltrading STACE elects (in its sole and unfettered discretion) to take back Goods and/or product, it must be in as new and saleable condition and upon terms agreed and a re- stocking fee will apply;
(b) custom made or custom processed Goods, or Goods acquired by Wiltrading STACE specifically for the Customer, will not be returnable;
(c) where Wiltrading STACE agrees in writing to accept a return of defective Goods, such Goods may be returned and will be replaced free of charge or be the subject of a credit for the invoiced value. “Free of charge” does not include labour, transport or material costs;
(d) rather than returning the defective Goods, the Customer will, if requested by Wiltrading STACE, permit Wiltrading STACE to attend the site where the Goods are located to effect a repair. In doing so, the Customer must co-operate with all reasonable requests of Wiltrading STACE to make the Goods available for inspection and repair including but not limited to moving or otherwise relocating the Goods at the Customer’s cost to allow repairs to be effected;
(e) the Customer must bear all costs of transporting the Goods back to Wiltrading STACE’s premises or such other location notified by Wiltrading STACE, where Wiltrading STACE agrees to the return of Goods; and
(f) Wiltrading STACE will not accept any responsibility or liability for Goods returned by the Customer unless prior arrangements have been made with Wiltrading STACE for their acceptance.
6. Placement of Orders:(a) To the extent permissible at law (including under the ACL), if any dispute arises concerning any Order (including any measurement, quality, quantity, identity, or authority or any telephone, facsimile, e-mail or computer generated order) the internal records of Wiltrading STACE will be conclusive evidence of what was ordered.
(b) When any Order is placed, the Customer must inform Wiltrading STACE of any material facts which would or might reasonably affect the commercial decision by Wiltrading STACE to accept the Order and/or grant credit in relation thereto.
(c) The Customer acknowledges that each Order by the Customer constitutes a security agreement on the terms set out in these Terms, and that Wiltrading STACE may register a financing statement (or comparable notice or registration in any other relevant jurisdiction) on behalf of itself in respect of the security interests provided for by the Orders and these Terms.
(d) An order or an offer to purchase (“Order”) can be made by the Customer in writing or verbally and is accepted when:
(i.) the Customer receives an acknowledgment of the Order from Wiltrading STACE;
(ii.) Wiltrading STACE appropriates the relevant Goods for delivery to the Customer; or
(iii.) Wiltrading STACE delivers the relevant Goods to the Customer,
whichever first occurs (“Acknowledgment”).
(e) These Terms apply to every Order unless otherwise agreed in writing by Wiltrading STACE. Without limitation, acceptance of Goods by the Customer is conclusive evidence that these Terms apply and are binding on the Customer.
(f) Wiltrading STACE may set specific terms from time to time in relation to Orders such as, without limitation, a requirement that the Customer pay a deposit, make full pre-payment in relation to an Order etc.
7. Price Increases(a) Notwithstanding any provision in a Contract or these Terms, Wiltrading STACE may increase the price of Goods after an Acknowledgment, and prior to delivery of the Goods, if the price increase results from:
(i.) an increase in the price of any inputs which comprise part of the Goods;
(ii.) circumstances beyond Wiltrading STACE’s reasonable control including without limitation, any variation in exchange rates, taxes, levies, Imposts, duties, premiums fees or charges however designed, cost of raw material required to complete the Order, and costs to correct errors and omissions.
(b) Subject to clause 7(c), the Customer may upon the alteration of the price charged for the Goods in accordance with this clause 7, by notice to Wiltrading STACE in writing, cancel the relevant Order (or part thereof) at the new price that has not yet been delivered, within 7 days of Wiltrading STACE providing notice of the change of price.
(c) A price in increase brought about as a result of Wiltrading STACE accepting a variation to any Order requested by the Customer will not entitle the Customer to cancel an Order under clause 7(b).
8. Delivery:(a) To the extent permissible at law (including under the ACL), Wiltrading STACE accepts no responsibility for delivery but may elect to arrange delivery at its discretion and without any liability and at the Customer’s costs and responsibility in all things.
(b) Wiltrading STACE reserves the right to charge for any delivery.
(c) The Customer will be deemed to have accepted delivery and liability for the Goods immediately after Wiltrading STACE notifies that they are ready for collection, when they are delivered to a carrier or to the Customer’s business premises or site whether attended or not, whichever is the earlier.
(d) A document (including without limitation a consignment note) purporting to be signed by an officer of Wiltrading STACE confirming delivery will be conclusive evidence of delivery as will any signed delivery docket.
(e) To the extent permissible at law (including under the ACL), Wiltrading STACE will not be liable for delay, failure or inability to deliver any Goods.
(f) Once the Customer has been notified that Goods are ready for collection, the Customer agrees to pay all costs of holding or handling Goods.
9. Variation and Cancellation:
(a) Variation or cancellation of any Order, Contract, dealing or arrangement must be on terms agreed in writing by Wiltrading STACE and terms which indemnifies Wiltrading STACE for any loss as a result of such cancellation.
(b) Without limiting clause 9(a), if after commencement of design, production or manufacture by Wiltrading STACE any specific changes are requested by the Customer, the cost of such changes shall be borne by the Customer and any delivery time previously stipulated by Wiltrading STACE may be extended by Wiltrading STACE at its option.
10. Exclusions:(a) To the extent permissible at law (including under the ACL) or as otherwise provided under any Contract:
(i.) no dealing with the Customer will be deemed to be a sale by sample or description; and
(ii.) if Wiltrading STACE publishes material about its Goods and prices, any part which is incompatible with these Terms or a Contract is expressly excluded.
(b) Except as expressly provided to the contrary in the Contract, all representations, warranties, guarantees and implied terms or conditions in relation to the Goods (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law.
(c) The Customer agrees that if it is aware (or should be aware) that the Goods which are the subject of an Order, are for a particular purpose (including, but not limited to, use as a component part of another product) or are required to possess special or uniform characteristics, the Customer will noticeably specify in writing that purpose or those characteristics in any such Order.
(d) Unless expressly agreed by Wiltrading STACE in writing, the Customer agrees that it has made its own enquiries in relation to the suitability of the Goods and does not rely on representations by Wiltrading STACE in relation to their suitability for a particular purpose or any steps which may need to be taken in relation to their use.
11. Privacy disclosure and consent:
The Customer irrevocably authorises Wiltrading STACE to:
(a) obtain credit information about its personal, consumer and commercial credit worthiness from any bank or trade referee disclosed in any an application for commercial credit with Wiltrading STACE completed by it and provided to Wiltrading STACE and from any other credit provider or credit reporting agency for the purpose of assessing its application, or in connection with any guarantee given by the Customer;
(b) use, disclose or exchange with other credit providers and other members of the Wiltrading STACE Group information about the Customer’s credit arrangements in order to assess its application for credit, monitor credit worthiness and collect overdue accounts; and
(c) disclose the contents of any credit report on the Customer to any members of the Wiltrading STACE Group, and any of their solicitors and mercantile agents.
If a provision of these Terms or a Contract would but for this clause, be unenforceable, that provision must be read down to that extent necessary to avoid that result and if that provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of these Terms and Contract.
13. Purchase Price:(a) All sales are made by Wiltrading STACE at its ruling price at the time of delivery unless otherwise agreed in writing by Wiltrading STACE in a quotation or otherwise.
(b) All government imposts and any GST (“Imposts”) will be to the Customer’s account. Wiltrading STACE’s price lists exclude Imposts unless expressly noted thereon.
(c) Unless otherwise agreed in writing by Wiltrading STACE, its prices do not include freight or insurance.
To the extent permissible at law (including under the ACL), default or breach by the Customer of these Terms, a Contract or in any dealings with Wiltrading STACE will entitle Wiltrading STACE to retain all monies paid, call-up all monies due or owing (whether currently due and owing or not) cease further deliveries and recover from the Customer all loss of profits without prejudice to any other of its rights under these Terms, a Contract or at law.
15. Product and Services:(a) Wiltrading STACE may update, modify, make substitution or alter any of its Goods or any component or raw material incorporated in or used in forming any part of any Goods as part of its ongoing business. The Customer agrees to accept current Goods in substitution of any Goods ordered provided they are not materially different.
(b) To the extent permissible at law (including under the ACL), Wiltrading STACE disclaims any responsibility or liability relating to any Goods:
(i.) processed or made to designs, drawings, specifications or measurements etc. or with materials which are provided or approved (whether in part or fully) by or on behalf of the Customer; and/or
(ii.) utilised, sorted or handled incorrectly or inappropriately by the Customer or a third party.
(c) The Customer must not alter, modify or use Goods in contravention of Wiltrading STACE’s instructions, manufacturer guidelines or common or accepted industry practice.
16. Other Terms:
Terms and/or conditions sought to be imposed by the Customer upon Wiltrading STACE will not apply unless agreed in writing by Wiltrading STACE.
17. Recovery Costs:
The Customer will pay ( on a full indemnity basis) all costs and expenses of Wiltrading STACE, its legal adviser, mercantile agents and others acting on its behalf in respect of anything instituted or being considered as a result of any breach of these Terms, a Contract or a breach of any dealings with Wiltrading STACE including but not limited to legal proceedings, debt collection and other actions with respect to unpaid accounts of the Customer.
To give effect to its obligations arising under these Terms and any Contract, the Customer irrevocably appoints Wiltrading STACE and each of its authorised officers, jointly and severally, as its attorney to do any act or thing which the Customer is required to do under these Terms or any Contract, if the Customer is in default of its obligations (including executing and registering instruments). Wiltrading STACE and each of its authorised officers, jointly and severally, may exercise this power of attorney even if this involves a conflict of duty and even if any of them have a personal interest in doing so. A third party may rely on a copy of these Terms as evidence of the appointment of Wiltrading STACE and each of its authorised officers, jointly and severally, as the attorney of the Customer. The Customer must promptly ratify all acts and things done by Wiltrading STACE and its authorised officers in the exercise of the power of attorney granted under this clause.
19. Customer Structure:(a) The Customer will notify Wiltrading STACE of any change in its structure or management including any sale in or disposition of any part of the business of the Customer, any change in director, shareholder, management, partnership or trusteeship or sale of any material part of its business (“Restructure”) within 7 days of any such change.
(b) The Customer agrees it will cause any new entity created by virtue of a Restructure (“New Entity”) to be bound by the Terms and will continue to be bound by these Terms despite a Restructure and will indemnify Wiltrading STACE for any loss or damage it suffers as a result of a breach of these Terms by the New Entity.
(c) The Customer agrees that these Terms and all Contracts bind it not only in its own capacity, but also as the Trustee of every trust of which it is a trustee.
All contracts made with Wiltrading STACE will be deemed to be made in the State of Western Australia and the parties submit to the non-exclusive jurisdiction of the appropriate Courts in or nearest Perth in that State.
21. Credit Line:
If Wiltrading STACE elects not to exercise any rights arising as a result of breach of these Terms or a Contract it will not constitute a waiver of any rights relating to any subsequent or other breach.
23. Tooling and Working Documents:(a) All Tooling and Working Documents made, developed or purchased by Wiltrading STACE in order to supply the Goods or otherwise remain the property of Wiltrading STACE. Unless otherwise agreed in writing by Wiltrading STACE, the Customer is not entitled to the Tooling or Working Documents or any intellectual property rights subsisting in the same.
(b) If the Customer provides Working Documents or Tooling, the Customer warrants that:
(i.) the Working Documents and Tooling are accurate, complete and fit for the purposes of the supply of the Goods and otherwise are in accordance with the requirements of these Terms; and
(ii.) use of the Working Documents and Tooling by Wiltrading STACE for the purposes of the supply of the Goods will not infringe any third party's intellectual property.
(c) The risk of loss or damage to the Customer’s Working Documents and Tooling while in Wiltrading STACE’s possession is at the Customer’s risk and the Customer must insure their full value against all risks (and must promptly produce evidence of such insurance upon being requested to do so by Wiltrading STACE).
(d) Irrespective of whether the Working Documents or Tooling are supplied by Wiltrading STACE or by the Customer, alteration to the Working Documents or Tooling to meet the requirements of the Customer and the replacement or renewal of Tooling shall be paid for by the Customer unless otherwise agreed in writing by Wiltrading STACE.
(e) The Customer must deliver all the Customer’s Working Documents and Tooling without charge to Wiltrading STACE prior to commencement of the supply of the Goods.
24. Force Majeure:(a) If Wiltrading STACE is prevented in whole or in part from carrying out its obligations under any Contract as a result of Force Majeure, it will promptly notify the Customer.
(b) Wiltrading STACE will not be in default or breach of any dealings with the Customer as a result of Force Majeure and its obligations under the Contract will be suspended until the cessation of that Force Majeure. The Customer must pay for all Goods provided to, or ordered by, the Customer as “sampling” unless otherwise agreed in writing.
25. Intellectual Property:(a) If Wiltrading STACE utilises any design patent or intellectual property or follows any instruction provided by or on behalf of the Customer, the Customer indemnifies Wiltrading STACE against any claim, proceeding, damages or liability for any loss cost or expense arising as a result whether for any alleged infringement of any intellectual property or otherwise.
(b) The Customer must not advertise, use or represent any intellectual property of Wiltrading STACE or of any Goods themselves in any way without the prior written consent of Wiltrading STACE.
(c) If the Customer breaches or permits any breach of this clause 25, it acknowledges Wiltrading STACE may suffer claims by third parties as a result.
(d) All rights in the composition of Goods and processes remain with Wiltrading STACE unless other agreed in writing by Wiltrading STACE. The Customer is not granted any right in Wiltrading STACE’s processes by virtue of such processes being incorporated into a Customers' product.
Any discount offered by Wiltrading STACE is at its complete discretion and will only be available provided the Customer is not in breach of any part of these Terms nor in default in any of its dealings with Wiltrading STACE.
27. Specifications:(a) Any illustration, drawing or specifications supplied by Wiltrading STACE (“Specs”) are drafts and approximates and are for illustration purposes and the Customer should not rely on the accuracy of such Specs in any way and any tangible or intellectual property rights in them remain the property of Wiltrading STACE and may be recalled at any time.
(b) Specs are to be treated at all times as confidential and not made use of without the prior written consent of Wiltrading STACE.
28. No Set-Off:
To the extent permissible at law (including under the ACL), no set off or counterclaim will be made or applied by the Customer until payment in full of all bona fide invoices raised by Wiltrading STACE (whether current or overdue) and this clause may be pleaded as a bar to any action taken prior to such payment in full.
Unless otherwise agreed in writing by Wiltrading STACE, the Customer agrees to procure each of its directors to execute an agreement to guarantee and indemnify in favour of Wiltrading STACE and in the form approved by Wiltrading STACE to be returned to Wiltrading STACE at the same time as the signed credit application or whenever requested in writing by Wiltrading STACE.
30. No Merger:
Termination of these Terms, a Contract and/or dealings between the Customer and Wiltrading STACE will not end those provisions of these Terms that are capable of surviving termination.
31. Stock Discretion, Partial Delivery, Forward Orders and Variation:(a) Wiltrading STACE has a continuing discretion to allocate available stock and gives no warranty as to certainty of supply unless expressly agreed in writing in advance.
(b) If the Customer places forward orders or request partial or instalment delivery, the Customer agrees:
(i.) to pay for so much of any order as is from time to time delivered by Wiltrading STACE: and
(ii.) that no delay or failure to fulfil any part of any order will entitle the Customer to cancel or vary any order or delay or reduce any payment.
To the extent permissible at law (including under the ACL), the Customer indemnifies Wiltrading STACE, and agrees to keep Wiltrading STACE indemnified against any claim or loss arising from or related in any way to any contract or dealing between Wiltrading STACE and the Customer or anything arising there from, or arising as a result of, or subsequent to, any breach of these Terms or any Contract by the Customer.
If the Customer commits or is involved in any act of insolvency as determined by Wiltrading STACE, it will be deemed in default under these Terms and all Contracts. An act of insolvency includes without limitation, bankruptcy, liquidation, receivership, administration or the like and failure to pay in accordance with these Terms or any Contract.
In the event of a product recall the Customer must promptly give Wiltrading STACE such assistance as Wiltrading STACE reasonably requires in relation to that recall.
Wiltrading STACE reserves the right to charge the Customer for all pallets and any re-useable packaging provided with Goods and an itemised statement of such charges can be provided on request.
36. Exclusion of warranty:
To the extent permissible at law (including under the ACL), Wiltrading STACE is not bound by any warranty (and the Customer agrees not to make any claim against Wiltrading STACE in relation to any warranty) in respect of Goods unless all Goods have paid for in full without set-off or deduction of any kind.
(a) The Customer grants to Wiltrading STACE a security interest in the Goods to secure payment of the Amount Owing. The security interest extends to and continues in all proceeds, Accessions and Processed Goods, and is a purchase money security interest to the extent to which it secures payment of that part of the Amount Owing which comprises the aggregate unpaid purchase price of the Goods.
(b) The Customer consents to Wiltrading STACE effecting a registration on the PPSA register (in any manner Wiltrading STACE considers appropriate) in relation to any security interest contemplated by these Terms and further agrees:
(i.) to do all things necessary and required by Wiltrading STACE to make sure that the security interest is registered; and
(ii.) that it must not do, or permit anything to be done, that may result in the purchase money security interest granted to Wiltrading STACE ranking in priority behind any other security interest.
(c) To the extent that the Goods are for the Customer’s business use, the Customer agrees to the extent permitted under the PPSA, that the Customer has no right:
(i.) to receive notice of removal of an accession under the PPSA;
(ii.) under Chapter 4 if the PPSA; or
(iii.) under the PPSA to receive a copy of any verification statement or a financing statement under the PPSA.
(d) Without in any way limiting clause 37(a) the Customer agrees that to the extent permitted under the PPSA, the Customer hereby waives its rights under sections 95, 96, 117, 118, 120, 121 (4), 123, 125, 126, 128, 129, 130, 132, 134, 135, 142 and 143 of the PPSA.
(e) Unless otherwise agreed to in writing by the Seller, the Buyer waives its right to receive a verification statement in accordance with section 157 of the PPSA.
(f) The Customer must not assign or grant a security interest in respect of any accounts owed to it in relation to the Goods without Wiltrading STACE’s prior written consent.
(g) Without limiting any other provision of these Terms or any Contract, if the Customer makes a payment to Wiltrading STACE at any time whether in connection with the supply of Goods or otherwise, Wiltrading STACE may at its absolute discretion apply that payment to first satisfy obligations that are not secured, then obligations that are secured, but not by a purchase money security interest, in the order in which those obligations were incurred, and then obligations that are secured by a purchase money security interest in the order in which those obligations were incurred.
(h) The Customer agrees that:
(i.) despite anything to the contrary contained in these Terms and any Contract, or any other rights which Wiltrading STACE may have howsoever, where the Customer is the owner, or becomes the owner in the future, of land realty or any other asset capable of being charged or mortgaged (“Assets”) the Customer agrees to promptly, upon Wiltrading STACE’s written request, to mortgage and/or charge all of their joint and/or several interest in the Assets to Wiltrading STACE to secure all amounts and other monetary obligations payable by the Customer to Wiltrading STACE;
(ii.) it grants a lien to Wiltrading STACE over all of its property in the possession or control of Wiltrading STACE until all Amounts Owing have been paid in full;
(iii.) it will on demand execute any documents and to do all things requested by Wiltrading STACE to register a mortgage or such other security Wiltrading STACE requires over any current or later acquired real property the Customer has an interest in; and
(iv.) it consents unconditionally to Wiltrading STACE lodging a caveat noting Wiltrading STACE’s interest in any Assets the Customer has an interest in.
38. The Competition and Consumer Act 2010 (Cth) and Fair Trading Acts:
(a) Nothing in these Terms or any Contract is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (Cth) or the Fair Trading Acts in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
(b) If the Customer is a consumer for the purposes of the ACL, nothing in these Terms or any Contract limits any remedy available for a failure of the guarantees in sections 56 and 57 of the ACL.
39. Liability of Wiltrading STACE:
(a) This clause 39 is subject to any contrary provisions of any applicable law (including without limitation the ACL), the operation of which cannot be excluded.
(b) Except as provided in clause 39(c), Wiltrading STACE’s liability for a breach of these Terms, a Contract, a condition, warranty or a guarantee of supply or in relation to defective goods and services or for Goods not meeting specifications, is limited to (at Wiltrading STACE’s election):
(i.) in the case of goods Wiltrading STACE supplies:
A. the replacement of the goods or the supply of equivalent goods;
B. the repair of the goods;
C. the payment of the cost of replacing the goods or of acquiring equivalent goods; or
D. a refund of the amount paid or payable by the Customer to Wiltrading STACE in relation to the goods;
(ii.) in the case of services Wiltrading STACE supplies:
A. the supplying of the services again; or
B. a refund of the amount paid or payable by the Customer to Wiltrading STACE in relation to the services.
(c) If goods or services Wiltrading STACE supplies are of a kind ordinarily acquired for personal, domestic or household use or consumption, and there is a “major” failure of the goods or services to meet any consumer guarantee under the ACL then the Customer may choose one of the following remedies:
(i.) in the case of goods Wiltrading STACE supplies:
A. ask for a refund;
B. return the goods and ask for an identical replacement, or one of similar value if reasonably available; or
C. keep the goods and ask for compensation for the drop in value caused by the problem; or
(ii.) in the case of services Wiltrading STACE supplies:
A. cancel the contract and pay a reasonable amount for the work done, or seek a refund; or
B. for money already paid, keep the contract and negotiate a reduced price for the drop-in value of the service — this may mean asking for some of the money back the Customer has already paid.
Exports of any Goods are governed by these Terms and all international trade conventions and/or terms including but not limited to the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) are expressly excluded unless otherwise stipulated in these Terms or on Wiltrading STACE’s invoice for the Goods. Unless otherwise noted on Wiltrading STACE’s invoice or quotations, all exported Goods are sold EXW and EXW has the meaning as defined by Incoterms 2010.
41. Adverse Environments:
The Customer acknowledges and agrees that harsh and adverse environments can reduce operating life and appearance of Goods.
The Customer agrees to ensure all parties under its control have read and understood all relevant MSDS and observe and comply these and with all applicable Occupational Health and Safety laws and environmental laws relating to Goods or their use or application.
43. No transfer of Warranty
Any warranty provided by Wiltrading STACE is extended only to the Customer and may not be transferred or otherwise assigned to any other person by the Customer except:
(a) where required by law (including without limitation the ACL); or
(b) where otherwise agreed in writing by Wiltrading STACE.
44. Entire Agreement
The Contract for the supply of Goods pursuant to an Order constitutes the entire agreement between Wiltrading STACE and the Customer with respect to that Order. All prior negotiations, proposals, previous dealings, correspondence, trade custom and/or trade usage are superseded by and will not affect the interpretation of that Contract
45. No Derogation of General Remedies:
The rights, powers and remedies available to Wiltrading STACE under these Terms are in addition to and are not in derogation of Wiltrading STACE’s powers, rights and remedies existing at common law, or given by any law at any time in force.
The Customer agrees:
(a) formal quotations will be writing unless otherwise agreed by Wiltrading STACE;
(b) Wiltrading STACE shall not be bound by any quotation if an order is placed outside the period of the quotation's validity noted thereon and in the absence of such period being noted, 30 days from the date of the quotation;
(c) prior to receipt of any order Wiltrading STACE may amend a quote;
(d) Wiltrading STACE shall not be bound by any quote if:
(i.) it forms the view that the subject matter of the quotation is to form part of a larger transaction or series of transactions with the Customer and those circumstances have materially changed; or
(ii.) the Customer is in breach of these Terms or any Contract; and
(e) to pay any reasonable charges Wiltrading STACE claims for holding any Goods referred to in any quote pending placement of an order.
(a) Wiltrading STACE will, subject to clause 47(b), use reasonable endeavours to supply the Goods having the grade and/or composition (if any) specified in its quotation or acknowledgement of order (if applicable) and make sure that any grade and/or composition so specified will, unless otherwise agreed in writing by Wiltrading STACE, be in accordance with Wiltrading STACE’s applicable standards and/or as detailed in any current, relevant schedule of prices, product lists, product handbooks or other literature of Wiltrading STACE.
(b) Unless otherwise agreed in writing by Wiltrading STACE:
(i.) all Goods will be supplied and delivered in accordance with Wiltrading STACE’s standard practice and shall be subject to Wiltrading STACE’s normal tolerances, limitations and variations of dimensions, weight, shape, composition, mechanical properties, structure, quality and service conditions (“Characteristics”);
(ii.) any statements made by Wiltrading STACE as to Characteristics of Goods are approximate and Wiltrading STACE may supply Goods on an actual or calculated basis (calculated in accordance with applicable Australian or other standards specified by Wiltrading STACE from time to time); and
(iii.) Wiltrading STACE’s statements as to Characteristics are, in the absence of manifest error, final, and must not be contested by the Customer unless the Customer has given Wiltrading STACE both 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.
(a) Any notice under these Terms or any Contract to the Customer must be in writing, and may be delivered or posted to the Customer at its “address for correspondence” noted in the Customer’s credit application with Wiltrading STACE, or in the absence of a credit application, at the Customer’s address last notified by them to Wiltrading STACE.
(b) Subject to clause 48(c), any notice to Wiltrading STACE under these Terms or any Contract must be in writing, and may be delivered or posted to 42 Zedora Turn, Henderson, Western Australia 6166.
(c) A party may change its address or number for notices by notifying the other party of that change in writing.
49. General covenants and agreements:
(a) The Customer covenants and agrees that:
(i.) it shall not undertake any installation or dismantling of the Goods in the absence of any prior consultation with Wiltrading STACE;
(ii.) it shall operate and maintain any Goods (including parts) sold by Wiltrading STACE in accordance with all operation, maintenance and parts manuals issued to the Customer by Wiltrading STACE;
(iii.) it will make sure that any maintenance or repairs to the will be effected under the supervision of an appropriately qualified persons; and
(iv.) in the event of defect, failure or breakdown of Goods covered by a warranty from Wiltrading STACE:
A. the Customer will immediately report any such defect, failure or breakdown to Wiltrading STACE with full details, and
B. if the Goods are stored or housed in any manner which renders it inaccessible (as determined by Wiltrading STACE) it shall take such steps as are necessary to render the Goods accessible to Wiltrading STACE and its servants and agents.
(b) To the extent permissible at law (including under the ACL), any warranty or guarantee provided by Wiltrading STACE to the Customer in respect of Goods will be void if the Customer breaches any part of clause 49(a) in relation to those Goods.
TERMS AND CONDITIONS OF PURCHASE ORDER
In this Contract, the following terms have the following meanings:
(a) “Associates” means in relation to a party, it’s related bodies corporate, employees agents and sub-contractors;
(b) “Contract” and “Order” interchangeably means, the agreement constituted by the PO, these Terms and any other documents attached to or which form part of the PO;
(c) “Goods” has the meaning given to it in clause 2.3;
(d) “Information” has the meaning given to it in clause 8;
(e) “Payment Terms” means 30 days from end of month in which the invoice is received by Wiltrading;
(f) “PO” means the purchase order accompanying these Terms;
(g) “Services” has the meaning given to it in clause 2.3;
(h) “Supplier” means the supplier named in the Purchaser Order;
(i) “Terms” means these terms and conditions set out in herein;
(j) “Wiltrading” means jointly and severally, Wiltrading STACE Pty Ltd ACN 003 437 527 and Wiltrading STACE Defence Pty Ltd ACN 103 397 762.
2. Contract and Order
2.1 Upon receipt of this Order, the Supplier shall check it for discrepancies. The Supplier shall acknowledge this Order by signing and returning it to Wiltrading within 24 hours of receipt of this Order. In the absence of such acknowledgment, the performance of this Order by Supplier shall constitute acceptance of this Order.
2.2 These terms and conditions (including these Terms) set out in this Order will take precedence over any terms or conditions contained in any documentation provided by the Supplier or any other documentation which forms part of the Contract.
2.3 In accepting this Order (either by acknowledgment or deemed acceptance by non- rejection) the Supplier agrees to all its terms and conditions. This Order, when properly signed by a representative of Wiltrading, is the only document which will be recognised by Wiltrading as the basis for the Supplier having the right to invoice Wiltrading for the goods to be delivered (“Goods”) or services to be provided (“Services”) under this Order.
2.4 This Order supersedes all previous oral or written quotations, communications and negotiations not attached to or referred to in this Order (including any terms or conditions implied by the course of previous dealings between Wiltrading and the Supplier), except to the extent that any such quotations, communications or negotiations may be included in this Order by virtue of the provisions of any relevant or applicable statute.
3. Warranty as to Goods
The Supplier warrants that the Goods supplied shall be: (a) of merchantable quality, fit for the purpose intended and free of defects in materials, workmanship and design; and (b) in accordance and compliance with the standards referenced in the Order.
3.1 If Wiltrading supplies manufacturing drawings to the Supplier, the Supplier warrants that the Goods are manufactured and supplied strictly in accordance with such drawings.
4. Inspection and Rejection of Goods
4.1 Wiltrading may at any time during the course of manufacture or otherwise, inspect Goods to be supplied (subject to Wiltrading first giving the Supplier reasonable notice of such inspection). Inspection by Wiltrading shall neither relieve the Supplier of its obligations under this Order or otherwise, nor waive Wiltrading’s rights or remedies provided under this Order or otherwise. Wiltrading will not be liable for any of the Supplier’s costs in connection with inspection of the Goods or any work related to the Goods.
4.2 Wiltrading may (without prejudice to any of its other rights) reject any of the Goods which are defective or which otherwise do not comply with the requirements of this Order (including any Goods which are not delivered by the time specified in this Order). If requested by Wiltrading, any of the Goods rejected must (if delivered, be collected from Wiltrading and) be rectified or replaced by the Supplier at its own cost.
4.3 Wiltrading at its discretion may accept any of the Goods which it has rejected, at a price agreed between the Supplier and Wiltrading.
4.4 Any amount paid for any of the Goods which are subsequently rejected will be a debt due from the Supplier to Wiltrading which is payable immediately.
5. Quality of Services:
The Services must be supplied by the Supplier to Wiltrading: (a) diligently, faithfully and conscientiously; (b) with the same or higher level of care and skill as would reasonably be expected of a person qualified and experienced in the supply of the same or similar Services; and (c) in good faith, in the best interests of Wiltrading and in a manner which is consistent with the maintenance of the business and goodwill of Wiltrading.
6. Safety of Goods
6.1 The Supplier must ensure the Goods supplied to Wiltrading are safe and free from risk to health and safety and compliant with all relevant laws and clearly and durably labelled identifying the Goods and providing any information in relation to use, maintenance and storage.
6.2 The Supplier agrees to supply the Goods with all relevant information pertaining to the use, storage and maintenance of the Goods and any relevant technical information, including health and safety information.
6.3 The Supplier must supply all applicable MSDS (material safety data sheet) documents pertaining to the Goods at delivery or such other time requested by Wiltrading.
7. Safety of Services:
The Supplier of the Services: (a) must ensure the Services are carried out at the site nominated by Wiltrading in compliance with relevant laws and in a manner which does not pose a risk to the health and safety of others; (b) warrants that it is (and any persons engaged by the Supplier are) qualified to provide the Services to Wiltrading and will provide evidence of such qualification if requested by Wiltrading; (c) agrees to abide by Wiltrading’s and its customer’s policies and procedures at the relevant sites; (d) agrees to supply all relevant written safety documentation for the Services to be provided including safe work method statements, job safety analysis, work assessments and worker training, where applicable; and (e) agrees that Wiltrading has a right to direct the suspension of Services which are provided in an unsafe manner.
The Supplier must ensure that it keeps confidential all information supplied by Wiltrading or relating to this Order (“Information”), and not use or disclose that Information except to fulfil its obligations under this Order. The Information supplied remains the property of Wiltrading and the Supplier must not disclose the Information without the prior written consent of Wiltrading. This clause 8 does not apply to Information which is lawfully obtained from a third party, is public knowledge, is already known or is otherwise independently developed by the Supplier prior to being exposed to the Information.
The Supplier must make sure that the Goods are: (a) packed appropriately to ensure safe transport and to avoid damage during transport; and (b) delivered undamaged to the address nominated in this Order and on the date for delivery advised by Wiltrading (unless otherwise notified in writing by Wiltrading) and in accordance with any other instruction by Wiltrading regarding transportation.
10. Warranties as to Goods, title and risk
10.1 The Supplier warrants that it has good and complete title to the Goods and that the Goods are free from all liens and encumbrances do not infringe any patent, trademark, copyright or other intellectual property and comply with all applicable laws and regulations.
10.2 Subject always to clause 10.3, the Goods will be at the sole risk of the Supplier until delivery following which, title to and risk in the Goods passes to Wiltrading regardless of whether Wiltrading has paid for the Goods.
10.3 Title to and risk in Goods rejected by Wiltrading will remain with the Supplier.
11. Indemnity and Insurances:
11.1 The Supplier shall indemnify Wiltrading and its Associates and customers against all loss, damage, claim, expense or liability incurred in connection with: (a) the Supplier’s performance or breach of this Order; (b) the Goods or Services supplied by the Supplier; (c) a claim by a third party that the Goods or Services infringe that third party’s intellectual property rights; and (d) any negligent or wilfully wrong act or omission by the Supplier or its Associates.
11.2 The Supplier must effect and maintain appropriate insurance policies, taking into account the Goods and Services it supplies. The Supplier must provide Wiltrading with proof of its insurance upon request.
12. Tax Invoices:
The Supplier must provide Wiltrading with a tax invoice for the Goods delivered or Services provided and accepted under this Order, within 10 business days of delivery. Such tax invoice must show the Order number, date and address nominated on the Order and fully itemise the Goods and Services delivered or provided, including any amounts of tax payable on those Goods or Services.
13. Prices and Payment
(a) Price adjustments for any variations notified by Wiltrading will be at the prices or rates included in this Order or, if there are no applicable prices or rates, they will be agreed between the Supplier and Wiltrading. (b) Subject to the provisions clause 17, and the receipt by Wiltrading of a properly rendered tax invoice, Wiltrading will pay the value of the Goods or Services supplied by reference to the price set out in this Order or as otherwise agreed under these Terms and within the Payment Terms.
14. Subcontracting and Assignment
14.1 The Supplier must not subcontract the whole or any part of its obligations under this Order without Wiltrading’s prior written approval, which approval it may grant or withhold at its sole discretion. If Wiltrading grants such approval then without limiting the Supplier’s liability to Wiltrading in any way, the Supplier must, if requested by Wiltrading, cause the subcontractor to: (a) agree to be bound by these Terms to the satisfaction of Wiltrading; (b) enter into a back to back agreement on terms acceptable to Wiltrading; (c) take out and maintain such insurances as Wiltrading deems necessary; and (d) cause the subcontractor to assign to Wiltrading the benefit of any warranties in relation to the Goods and Services supplied.
14.2 The Supplier must not, without the prior written consent of Wiltrading assign, charge, or encumber this Order or any rights under this Order or any part of this Order or any Goods. The Supplier will remain principally liable for the performance of this Order and the acts and omissions of any subcontractor.
If the Supplier is in breach of any warranty or material term or condition of this Order or becomes insolvent or is unable to pay its debts when they fall due or is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act 2001 or has imposed on it any arrangement for the benefit of its creditors or a receiver, receiver and manager, agent for a mortgagee, administrator, controller or provisional liquidator is appointed with respect to the Supplier or any part of its property or undertaking, Wiltrading may, without prejudice to any other rights it may have, cancel this Order, cease payments and recover as a debt due any sums paid for undelivered Goods and for Services not provided and any extra costs, losses, expenses or damages it may suffer or incur in purchasing similar goods or services from alternative suppliers. No waiver of a breach of any provision of this Order will constitute a waiver of any other breach or any other provision.
16. Termination for Convenience
16.1 Wiltrading may at its option cancel this Order or any part thereof at any time and Wiltrading’s liability will be to pay for materials manufactured and supplied with supporting documentation in accordance with this Order up to the date of cancellation and for costs of materials and other items ordered in connection with the Goods or Services for which Supplier is legally bound to pay provided that the sum of payments under this clause 16.1 does not exceed the total price of this Order.
16.2 The Supplier must use its best endeavours to use any materials, goods or services ordered in relation to this Order but no longer required due to termination of this Order in accordance with clause 16.1 in relation to another order or part of its business, and otherwise mitigate any costs it may incur.
17. Recovery of Moneys:
Any debt due from or moneys payable by the Supplier to Wiltrading whether under this Order or otherwise may be deducted by Wiltrading from any moneys due or to become due to the Supplier under this Order. Wiltrading is entitled to recover from the Supplier any balance that remains owing after deduction.
(a) This Order and the rights and obligations of the parties hereto shall be construed in accordance with and be governed by the laws applicable in the State of Western Australia. (b) If a provision of the Contract would but for this subclause, be unenforceable, that provision must be read down to that extent necessary to avoid that result and if that provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of the Contract. (c) If Wiltrading elects not to exercise any rights arising as a result of breach of these Terms or any Order it will not constitute a waiver of any rights relating to any subsequent or other breach. (d) In this Contract, a reference to the singular includes the plural and vice versa, a reference to a person includes a firm, body corporate, unincorporated association or authority and a reference to a person includes their executors, administrators, successors, substitutes and assigns. (e) Nothing in this Order will have the effect of or be taken to have the effect of excluding, restricting or modifying the provisions of any relevant or applicable statute. If it is determined that a word, phrase, sentence, paragraph or clause is unenforceable, illegal or void then it will be severed and the other provisions of this Order will remain operative.