Interlloy Pty. Ltd. Terms and Conditions of Trade
1. “Interlloy” means Interlloy Pty Ltd (ABN 94 005 609 405) and “the customer” means the party placing an order for the purchase of goods from Interlloy or requesting that Interlloy perform work and labour for the customer. “Order” or a “request” refers to an order for goods and services and/or a request for Interlloy to perform work and supply materials for the customer, “State” means the state of Australia in which the customer is or was located. “Goods” or “goods” means all goods supplied or agreed to be supplied by Interlloy to the customer. “Force Majeure Event” means an act, event or cause (other than lack of funds) beyond Interlloy’s reasonable control including an act of God, war, sabotage, terrorism, riot, civil commotion, national emergency, fire, lightning, flood, storm, tempest, earthquake, explosion, labour strike or other industrial action, action or inaction of government or other competent authority, breakdown of plant, machinery or equipment or shortage of labour, transportation, fuel, power, equipment or material. “PPS Act” means the Personal Property Securities Act 2009 (Cth). The terms “attaches”, “collateral”, “proceeds” “purchase money security interest” and “security interest” have the meanings given to them in the PPS Act, and “perfection” and “perfecting” have a meaning corresponding with the definition of “perfected” in the PPS Act.
Use of goods
2. In relation to each order for the sale of goods by Interlloy to the customer, the goods sold are to be used by the customer wholly or mainly for business purposes and shall represent an expense necessarily incurred in carrying on that business and, further, the goods purchased shall be intended either for resupply in the ordinary course of the customer’s business or be incorporated in other goods for the purposes of transforming or incorporating them in other goods to be used in the ordinary course of the business.
Cancellation of orders
3. The customer may not, without Interlloy’s written consent, cancel an order for goods which a customer has placed with Interlloy. Interlloy may reject an order, or part of an order, placed by the customer without giving reasons by giving the customer notice of rejection.
4. The jurisdiction of the hearing of any dispute arising out of any contract between Interlloy and the customer for the sales of goods or for work to be performed shall be the State of the relevant Interlloy office. If there is no Interlloy office in the State of the Customer, the appropriate jurisdiction shall be the State of Victoria.
5. Unless otherwise agreed, the customer shall pay all monies to Interlloy by cash. In the event Interlloy approves a credit account for the customer, the customer shall unless otherwise agreed in writing pay Interlloy by the end of the calendar month following the month in which the customer is invoiced. In the event payment is not made in accordance with these terms, Interlloy shall be at liberty to charge the customer and be paid interest on the outstanding balance from the date of invoice until the date of payment at the rate charged by the ANZ Bank in respect of standard overdraft facility of the sum of $100,000, plus 3%. Payments received by Interlloy may at its election be credited first against accrued interest, second against any costs or expenses payable by the customer to Interlloy and thereafter the debt.
Acceleration of payment obligations and repossession of goods
(a) The customer defaults in paying the purchase price for goods, or in paying any other amount payable to Interlloy an any account, when it is due; or
(b) the customer otherwise breaches these terms and conditions; or
(c) a liquidator, provisional liquidator or trustee in bankruptcy, or controller or administrator (as defined in the Corporations Act 2001 (Cth)) is appointed in respect of the customer or any property of the customer; or
(d) an application to wind up the customer is made; or
(e) the customer proposes or enters into a compromise or scheme of arrangement with any of its creditors;
then all amounts owing to Interlloy will become immediately due and payable and the customer must not sell, dispose of any interest in, or create any interest in, or otherwise deal with, the goods, or purport to do so, and the customer will allow Interlloy to repossess the goods.
Limitation of Interlloy's liability
7. Any liability of Interlloy for loss or damage during carriage handling and/or storage to any goods or part thereof (either owned by the customer or not) or to any goods purchased by the customer is limited at the sole option of Interlloy either to the replacement or repair of such goods or part thereof damaged or to credit the customer’s account with the value of such goods or part thereof damaged. Any claim against Interlloy does not extend to consequential or indirect loss or damage. Interlloy will not be liable for any loss or damage (including loss or loss of profits) suffered by the customer for late delivery of goods or failure to deliver goods at all. If Interlloy becomes unable to carry out any obligation, in whole or in part, under these terms and conditions by reason of any Force Majeure Event, that obligation, so far as it is affected by the Force Majeure Event, will be suspended during the period the Force Majeure Event continues. Interlloy assumes no liability of any kind for any technical advice, recommendation, information or assistance given, or the results obtained therefrom, all such advice, recommendation, information or assistance being given and accepted at the customer’s sole risk.
Claims for defects/shortages
8. The customer shall inspect all goods delivered by Interlloy to the customer immediately upon delivery. Any claim by the customer relating to any defect in manufacture of goods, or defect in work performed by Interlloy for the customer, or any shortage or other nonconformity to an order for goods or a request for work to be performed shall be made in writing and delivered by security mail or its equivalent addressed to the Customer Relation Manager at Interlloy at its address within 7 days of delivery of the goods. Unless such written claim is received by Interlloy within the specified period, the customer shall be deemed to have accepted the condition of the goods, conformity of the goods to the order and/or the completion of the work according to the customer’s request. Any claim in relation to a defect in goods must be accompanied by both:
(a) a specimen of the article showing the alleged defect; and
(b) a sample taken from the consignment in its original packaging showing the references used for identification purposes.
9. Every other claim shall specify such documentation as is necessary to properly identify the matter complained of and such documentation shall include at least the relevant invoice and delivery docket. Notwithstanding that a claim has been made by the customer, the customer shall pay for the goods and/or work pending determination of the claim by Interlloy.
10. No goods corresponding with order shall be returned to Interlloy by the customer without the written consent of Interlloy. If Interlloy consents to the return of goods, Interlloy shall not be required to accept such goods by way of return unless:
(a) the delivery charge for the return to Interlloy of the goods is first paid by the customer; and
(b) the goods are unused and undamaged.
Termination of credit facilities
11. Any credit facility granted by Interlloy to the customer shall continue until terminated by Interlloy at its sole discretion. Termination by Interlloy of any credit facility may be by notice in writing to the customer or verbal notice.
Change of customer's address
12. The customer shall forthwith give notice to Interlloy of the change of address, telephone number, facsimile numbers or address for delivery to the customer.
13. All prices charged by Interlloy are subject to change without notice. Unless otherwise agreed in writing, prices quoted by Interlloy will be quoted ex Interlloy warehouse from which the goods are shipped or, in the case of work to be performed, from the place at which Interlloy at its option performs the work. All quotes are subject to prior sale of the goods quoted. List or trade prices apply only to those who have approved accounts with Interlloy for the relevant goods or work. Interlloy price lists or price catalogues do not constitute any offer whatsoever.
Exclusion of certain warranties and liability
14. Subject to any express written warranty otherwise given by Interlloy, and subject to any statutory warranties, liability or guarantees, whether express or implied, which by law cannot be excluded, all warranties, guarantees, conditions, representations and liability, whether express or implied, in respect of goods or services supplied by Interlloy are expressly negated. Where a warranty, guarantee, condition or liability is implied or imposed by law and cannot be lawfully excluded by Interlloy, Interlloy’s liability for any breach of such warranty, guarantee or condition, and such liability imposed by law, to the extent that it can be lawfully limited, is limited to one of the following at the election of Interlloy:
(a) In the case of goods:
(i) replacement of the goods or supply of equivalent goods;
(ii) repair of the goods; or
(iii) payment of the costs of replacing the goods or acquiring equivalent goods.
(b) In the case of services:
(i) the supply of the services again; or
(ii) the payment of the cost of having the services supplied again;
and Interlloy's liability does not extend to consequential or indirect loss or damage (unless such liability is imposed on Interlloy by law and cannot be lawfully excluded).
No waiver by Interlloy
15. Failure by Interlloy to insist upon strict performance of any term of any contract between the parties or of any term hereof shall not constitute a waiver of similar or a subsequent breach and the rights of Interlloy to enforce these terms and those in any other contact shall remain valid and subsisting.
Risk in goods
16. Unless otherwise agreed, risk in the goods shall pass to the customer upon delivery.
Retention of title
17. Notwithstanding that risk in the goods may have passed to the customer, title in the goods remains with Interlloy and will not pass to the customer until payment in full for all goods and payment of all other amounts owing from time to time by the customer to Interlloy are received by Interlloy.
18. Unless title in the goods has passed to the customer under clause 17, the customer will not sell, dispose of any interest in, or create any interest in, or otherwise deal with, the goods, or purport to do so, except that the customer may sell or use up the goods in the ordinary course of the customer's ordinary business.
19. Until title in the goods has passed to the customer in accordance with clause 17, or the customer has sold or used up the goods as expressly permitted under clause 18, the customer must ensure that the goods are:
(a) clearly identified as being owned by Interlloy; and
(b) stored at the place named in the delivery docket which accompanied the goods, or at such other place as Interlloy may agree in writing.
20. The customer irrevocably authorises and licenses Interlloy to enter any premises owned or occupied by the customer, or any other place where goods are stored, to inspect or repossess goods in accordance with these terms and conditions.
Security interests and PPS Act
21. The customer acknowledges that Interlloy has, under these terms and conditions, security interests in the goods until title in the goods passes to the customer in accordance with clause 17, subject to the PPS Act. Each such security interest secures payment by the customer of all amounts owing from time to time by the customer to Interlloy, whether on account of the supply of goods or otherwise. To avoid any doubt, each such security interest attaches to the proceeds of collateral constituted by the goods, notwithstanding that the customer may have dealt in any way with the goods (including by selling or using up the goods as expressly permitted under clause 18).
22. Each security interest arising under these terms and conditions attaches to goods when the customer obtains possession of the goods. Interlloy and the customer acknowledge that they have not agreed that any such security interest attaches at any later time.
23. The customer agrees to implement, maintain and comply in all material respects with, procedures for the perfection of each security interest arising under these terms and conditions under the PPS Act, including taking all steps necessary:
(a) for Interlloy to obtain the highest ranking priority possible in respect of each such security interest (such as perfecting a purchase money security interest); and
(b) to reduce as far as possible the risk of a third party acquiring an interest free of Interlloy's security interests in the goods.
24. Any time the customer makes a payment to Interlloy, irrespective of whether the payment is made under or in connection with goods or otherwise under these terms and conditions, Interlloy may apply that payment:
(a) first, to satisfy any obligation that is not secured;
(b) secondly, to satisfy an obligation that is secured, but not by a purchase money security interest; and
(c) thirdly, to satisfy an obligation that is secured by a purchase money security interest for that obligation and using proceeds from the sale of the collateral subject to that purchase money security interest; and
(d) fourthly, to satisfy an obligation that is secured by a purchase money security interest using funds or proceeds from any source;
or, despite the foregoing, in any manner Interlloy sees fit.
25. If chapter 4 of the PPS Act would otherwise apply to the enforcement of a security interest arising under these terms and conditions, the customer agrees that following provisions of the PPS Act will not apply to the enforcement of that security interest: Sections 95 (to the extent that it requires Interlloy to give a notice to the customer), 120, 121(4), 125, 128, 130 (to the extent that it requires Interlloy to give a notice to the customer), 132(3)(d), 132(4), 135, 142 and 143.
26. Without limiting the operation of clause 25:
(a) Interlloy need not give any notice under the PPS Act (including a notice of verification statement) unless the notice is required by the PPS Act and cannot be excluded; and
(b) if Interlloy is required to give a notice to the customer under the PPS Act, and the customer may, under the PPS Act, waive the customer's right to receive that notice, then the customer hereby waives that right.
Amendment of these terms
27. These terms may be amended, replaced or deleted from time to time by Interlloy and those terms as so altered shall form the contract between the parties in relation to orders and requests made or placed after notice of the altered terms has been forwarded to the customer in accordance with these terms.
28. Notwithstanding that the customer may conduct a credit facility with Interlloy, Interlloy shall not be obliged to deliver goods or perform work until all monies owing and overdue to Interlloy by the customer for prior orders and/or requests are paid to Interlloy. In the event Interlloy elects as a result of the customer’s prior indebtedness to Interlloy to retain possession of goods or equipment the delivery or completion date referred to in any request or order shall be replaced by a date being thirty days from the date of satisfaction by the customer of the customer’s prior indebtedness of Interlloy.
Default by customer
29. In the event the customer is in default of any term or condition of any order or request and the customer has been in default thereof for a period of seven days Interlloy at its election at any time thereafter shall be at liberty to cancel any or all orders or requests yet to be completed or fulfilled and to recover from the customer any or all losses, damages, costs, interest, fees, charges (including handling charges payable to Interlloy and its suppliers) and all expenses incurred and suffered by Interlloy as a result of the customer’s default and the subsequent cancellation. The customer shall have no recourse whatsoever against Interlloy as a result of any such cancellation.
Entire agreement - exclusion of other terms
30. These terms and conditions and any terms and conditions implied by statute constitute the contract between the parties. Any terms and conditions endorsed on any other document pertaining to any order or request and, in particular, on any order form or request form produced by the customer are expressly negated and do not form part of the contract between the parties unless Interlloy has specifically adopted in writing those terms and conditions.
Goods and services tax
31. The customer shall in addition to any monies otherwise payable hereunder pay any applicable goods and services taxes (or their equivalent) in respect of any goods and/or services purchased.
Enquiries by Interlloy
32. The customer irrevocably authorises Interlloy, its servants and agents to make such enquiries as they deem necessary and as may be allowed by law of or incidental to the customer’s or its director’s credit history.
Corporate customer - directors' guarantees
33. The customer agrees at the request of Interlloy to procure such of its directors to sign a guarantee and indemnity in favour of Interlloy in order to better secure the customer’s indebtedness herein.