Trade Accounts Terms and Conditions at Allfasteners
The following terms and conditions of sale ("Terms") will apply to and form part of any contract ("Contract") for the supply of goods ("Goods") and services ("Services") by Allfasteners and/or Allfasteners NSW ("Allfasteners") to a customer ("Customer"), whether or not there is a 30 Day Credit Account Application ("Credit Form").
Any terms and conditions set out in the Customer's order deviating from or inconsistent with these Terms will not bind Allfasteners despite any statement by the Customer in its order that its terms and conditions shall prevail over these Terms.
- A Contract is formed when Allfasteners has received an order and either sends the Customer a written acceptance or despatches Goods pursuant to the order.
- Allfasteners expressly rejects any conditional purchase order placed by the Customer.
- The price is that quoted by Allfasteners in respect of the particular order and not in any brochure or other product information published. Prices are ex-warehouse and are subject to Goods and Services Tax (GST) where applicable.
- Prices given in any quotation by Allfasteners are valid for a period of 30 days from the date of issue by Allfasteners, unless noted otherwise in the quotation.
- Orders are subject to delivery fees where applicable.
- Despatch dates will be observed subject to Allfasteners' ability to effect transport by available means.
- Allfasteners is deemed to have delivered Goods when collected by the Customer or when they are made available for unloading at the Customer's nominated delivery point (whichever occurs first).
- Risk in the Goods passes at the point of delivery.
- Payment is to be made on receipt of Goods, or in the case of an approved account, within 30 days following the end of the month in which the invoice is dated or any other terms applied.
- If not paid as aforesaid Allfasteners reserves the right to charge interest at a rate of 2.5% per month on all outstanding monies dating back to the original date of invoice, plus any expenses, costs or disbursements, including debt collection agency fees and solicitors costs, and -Credit Form.
RETENTION OF TITLE AND PPSA
- Whilst the risk in the Goods passes on delivery, legal and equitable title remains with Allfasteners until payment in full for all debts accrued or owed by the Customer to Allfasteners in relation to the Goods is received by Allfasteners.
Until Allfasteners has received payment for the Goods in full:
(a) Allfasteners reserves the right to enter the Customer’s premises and retake possession of the Goods, reserves the right to keep or resell any Goods repossessed and reserves any other rights it may have at law (including but not limited to under the PPSA);
(b) the Customer agrees to take the Goods as bailee for Allfasteners; and
(c) if the Customer does not return the Goods to Allfasteners within 48 hours of service of demand for a due payment, Allfasteners may enter upon the Customer's premises at any time to do all things necessary to recover the Goods.
- Prior to the use or resale of Goods, the Customer shall maintain them in an identifiable condition in store or on site.
- Until Allfasteners has received payment for the Goods in full, the Customer acknowledges that Allfasteners shall have a Purchase Money Security Interest which attaches over such Goods and their proceeds and a Security Interest in relation to other amounts owed by the Customer to Allfasteners.
- For the avoidance of doubt, Allfasteners may register its Purchase Money Security Interest on the PPSR and, where reasonable, amend the registration.
- The Customer acknowledges that it must sign a Credit Form or a document incorporating these Terms and if it does not sign such a document it will be deemed to have accepted these Terms upon placing an order.
- The Customer must not grant any other person a Security Interest in respect of the Goods or allow an Excluded Interest to exist over the Goods.
The Customer agrees to do anything (such as obtaining consents, signing and producing documents, producing receipts and getting documents completed and signed) which Allfasteners asks and considers necessary for the purposes of:
(a) ensuring that a Security Interest created under the Contract is enforceable, perfected and otherwise effective; or
(b) enabling Allfasteners to apply for any registration, or give any notification, in connection with a Security Interest created under the Contract so that the Security Interest has the priority required by Allfasteners, including anything Allfasteners reasonably asks the Customer to do in connection with the PPSA.
- To the extent permitted by law, if the PPSA applies, the Customer irrevocably waives any rights the Customer may have to receive notices or statements under sections 95, 121(4), 125, 130, 132(3)(d), 132(4) and 135 of the PPSA, redeem the Goods under section 142 of the PPSA; reinstate these Terms under section 143 of the PPSA or receive a verification statement (as defined in the PPSA).
- Despite these provisions Allfasteners may maintain an action against the Customer for the purchase price of the Goods and at all times risk in respect of the Goods shall pass to the Customer on delivery.
- The Customer shall be liable for all costs associated with the exercise by Allfasteners of its rights under this clause 5, which shall be repayable on demand.
- To the extent permitted by law all implied conditions, warranties, guarantees and undertakings are expressly excluded and except as provided in this clause 6, Allfasteners is not liable for any loss or damage, whether direct or indirect (including consequential losses or damage) arising out of any breach of contract by Allfasteners or any negligence of Allfasteners, its employees or agents and the Customer releases Allfasteners from those claims.
If Allfasteners is liable for a breach of a guarantee implied by the Australian Consumer Law of the Competition and Consumer Act 2010 (Cth) (not being a condition or warranty implied by Section 64 of the Australian Consumer Law) then its liability for a breach of any such guarantee will be limited, at its option, to any one or more of the following:
(a) in the case of goods:
(1) the replacement of the goods or the supply of equivalent goods;
(2) the repair of the goods;
(3) the payment of the cost of replacing the goods or acquiring equivalent goods;
(4) the payment of the cost of having the goods repaired; and
(b) in the case of services:
(1) the supply of the services again;
(2) the payment of the cost of having the services supplied again.
- Any claim for warranty by the Customer will be considered only after the Customer returns Goods with proof of purchase to Allfasteners within 7 days of delivery.
- To the extent permitted by law, without limiting the generality of clauses 6.1 and 6.2, where Allfasteners contracts to install Goods, Allfasteners shall not be liable for any delay in installing the Goods or for loss or damage arising out of the installation of the Goods.
- Allfasteners will not be liable for damage caused by a failed power supply. The provision and maintenance of an adequate power supply will be undertaken by the Customer.
- The Customer acknowledges that it does not rely and that it is unreasonable for the Customer to rely on the skill or judgement of Allfasteners as to whether the Goods are reasonably fit for the purpose for which the Goods are being acquired or as to the fitness for purpose for which the Services are being acquired and any materials supplied in connection with those Services.
To the extent permitted by law, Allfasteners may in its absolute discretion accept the return of standard products (but not special products) to the credit of the Customer provided that such products are returned to Allfasteners unused and undamaged, and with proof of purchase, before the expiry of 14 days after their delivery to the Customer and the Customer agrees to pay a reasonable handling and administration charge. No returns of special products will be accepted and Allfasteners may in its absolute discretion, not accept the return of non-stock quantities or products.
- The Customer hereby releases, indemnifies and defends Allfasteners from and against any losses, liabilities, claims and costs caused by or arising out of the way in which the Goods are contained or made in compliance with the Customer’s design or specification.
- There is no need for Allfasteners to suffer loss or damage before enforcing clause 8.1.
Allfasteners does not waive any of its strict legal rights in respect of these Terms and shall not be bound by any waiver made by its servants and agents on a particular occasion.
If any provision on these Terms is held invalid, unenforceable or illegal for any reason, these Terms remain otherwise in full force and effect apart from such provision which will be deemed deleted.
Allfasteners will not be responsible for any delay in or failure of performance of supply or delivery caused by circumstances beyond its control including but not limited to, strikes, lock-outs, labour disturbances, Act of Government, riot, civil war, commotion, fire, flood, failure of power supply or similar event and shall not be liable for any consequential loss, damage, expense or claim suffered by the Customer or any other party as a result of any such event.
VIENNA CONVENTION EXCLUDED
The United Nations Convention on Contracts for the International Sale of Goods (Vienna 1980, known as Vienna Sales Convention 1980) is expressly excluded from the Contract.
AGENTS AND EMPLOYEES
The Customer is bound by and liable for the actions and conduct of its agents, employees, contractors, subcontractors, officers and any other party that purports to represent the Customer or that accepts goods on behalf of the Customer, including but not limited to freight, transport and logistics service providers.
These Terms contain the entire agreement between the parties on the subject matter of these Terms, and there are no other oral or written representations, stipulations, warranties, agreements, or understandings relating to the subject matter of these Terms. Any variation or modification of these Terms must be in writing and agreed by both parties.
The laws of the State in which the relevant AllFasteners company that supplied the Goods is incorporated ("Relevant State") governs the Contract. All disputes arising hereunder will be dealt with in the courts of the Relevant State and courts hearing appeals therefrom.
DEFINITIONS AND INTERPRETATION
The following definitions apply in these Terms:
(a) "Allfasteners" means Allfasteners Pty Ltd (ACN 113 948 100) trading as Allfasteners (ABN 86 766 075 300);
(b) "Allfasteners NSW" means Allfasteners (NSW) Pty Ltd (ACN 73 145 223 730) trading as Allfasteners (NSW) Pty Ltd (ABN 73 871 800 275);
(c) "Excluded Interest" includes any mortgage, charge or other encumbrance over real property or personal property (tangible or intangible) that is not a Security Interest, including non-consensual liens and mortgages over real property;
(d) "PPSA" means the Personal Property Securities Act 2009 (Cth);
(e) "PPSR" means the Personal Property Securities Register established by the PPSA;
(f) "Purchase Money Security Interest" has the same meaning as under the PPSA;
(g) "Registration Commencement Time" has the same meaning as under the PPSA; and
(h) "Security interest" has the same meaning as under the PPSA.