CONNECTOR-TECH ALS TERMS & CONDITIONS OF TRADING
It is our endeavour to give excellent service to our customers in that we will forward your requirements as efficiently as is possible. To assist us to provide and maintain this service, we require your co-operation in adhering to our terms of trading as outlined below. There are also a number of legal obligations that need to be met so please read everything below carefully.
1 Interpretation
1.1 Definitions
Unless the context otherwise requires:
(a) Agreement means the agreement by CTALS to sell or supply the Products to the Customer pursuant to these Conditions;
(b) ACL means the Australian Consumer Law which is contained in Schedule 2 of the Competition and Consumer Act 2010 (Cth);
(c) Claims includes all actions, suits, causes of action, arbitrations, debts, dues, costs, expenses (including reasonable legal costs on a solicitor and own client basis and tax of any kind), claims, demands, proceedings, appeals, complaints, objections, investigations, obligations, liabilities, interest, verdicts, orders and judgments either at law or in equity, arising under a statute and whether or not the matter giving rise to those claims are known to the parties as at the commencement of these Conditions;
(d) Conditions means these terms and conditions that apply to the sale or supply of the Products;
(e) Consumer Guarantees means the guarantees relating to the supply of goods and services contained in the ACL;
(f) CTALS means Connector-Tech ALS Pty Ltd ACN 065 191 424;
(g) Customer means the person named in the Order, Quotation or Order Confirmation, and who has requested CTALS to supply the Products;
(h) Force Majeure means any act, omission or circumstance over which CTALS could not have reasonably exercised control including, without limitation, acts of God, war, terrorism, mobilisation, civil commotion, riots, embargoes, orders or regulations of governments of any relevant jurisdiction, fires, floods, pandemics, epidemics, strikes, lockouts or other labour difficulties, shortages of or inability to services, materials, labour or fuel;
(i) Order means a request by the Customer (whether written or oral) for CTALS to supply the Products to the Customer;
(j) Order Confirmation means the document or written communication issued by CTALS to the Customer evidencing their agreement for the sale and supply of the Products by CTALS to the Customer;
(k) Products means the products supplied by CTALS to the Customer pursuant to the Order Confirmation and any special terms in the Quotation;
(l) Purchase Price means the price for the Products set out in the relevant Order Confirmation issued by CTALS;
(m) PPSA means the Personal Property Securities Act 2009 (Cth) (as amended) and any other legislation and regulations in respect of it and the following words in clause 4 have the respective meanings given to them in the PPS Act: collateral, financing change statement, financing statement, interested person, register, security agreement, security interest and verification statement; and
(n) Quotation means the form of quotation or proposal provided by CTALS to the Customer, setting out the Purchase Price and any other special terms and conditions for the sale and supply of the Products by CTALs to the Customer.
1.2 Interpretation
In the interpretation of these Conditions, unless the context otherwise requires:
(a) words and expressions defined in clause 1.2 or elsewhere have the meaning so given to them;
(b) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(c) headings are inserted for convenience only and are not to be used in the interpretation or construction of this Agreement;
(d) words importing any gender include all other genders;
(e) words importing the singular include the plural and vice versa;
(f) "includes", "including" and similar expressions are not words of limitation;
(g) all monetary amounts are in Australian dollars, unless stated otherwise;
(h) a reference to dates and times are to local time in Brisbane, Queensland, Australia;
(i) a reference to sections, paragraphs, clauses, recitals, schedules and annexures are to sections, paragraphs and clauses of and recitals, schedules and annexures to this Agreement;
(j) a reference to a document or instrument (including a reference to this Agreement), is to the document or instrument as amended, supplemented, novated, replaced or varied from time to time;
(k) a reference to a person includes a natural person, body corporate, unincorporated association, trust, partnership, joint venture, Government Agency and statutory body or authority;
(l) a reference to a party or person includes its employees, agents, officers, successors, substitutes (including, but not limited to, a party or person taking by novation), executors, administrators and assigns;
(m) unless application is mandatory by law, any legislation present or future will not apply to this Agreement so as to abrogate, extinguish, impair, delay or otherwise prejudicially affect the exercise or enjoyment of any right given or accruing to any Party;
(n) unless otherwise specifically provided in this Agreement, references to indemnify and indemnifying any person against any matter or circumstances, includes indemnifying and keeping the person harmless from all Claims made, suffered or incurred by that person as a consequence of or which would not have arisen but for that matter or circumstance.
2 ORDERS
2.1 These Conditions shall apply to the sale and supply of the Products by CTALS to the Customer where the Customer submits an Order for the Products and CTALS accepts the Order by either:
(a) issuing an Order Confirmation to the Customer; or
(b) supplying the Products to the Customer in accordance with the Order.
2.2 Any Order placed by the Customer will constitute an offer and shall not bind CTALS until CTALS accepts the Order in accordance with clause 2.1.
2.3 Once accepted, an Order may not be cancelled by the Customer, except with the written consent of CTALS (in its absolute discretion).
2.4 Where an Order placed by the Customer refers to a Quotation, then any special conditions contained in the Quotation will apply to the sale and supply of those Products, in addition to these Conditions.
2.5 Where there is any discrepancy or conflict between the terms in the Quotation and the terms in the Order Confirmation, the Order Confirmation shall prevail.
2.6 These Conditions prevail over any terms and conditions contained in any Order, offer, acceptance or other document provided by the Buyer, whether or not any inconsistency arises.
3 Payment
3.1 All invoices, unless otherwise agreed in writing with CTALS, must be paid by the Customer without discount, retention, set-off or any other deduction, prior to delivery or collection of the Products or within such other timeframe as agreed with CTALS.
3.2 If the Customer fails to pay an amount when due, CTALs may charge interest on the outstanding amount at the rate of 15% per annum from the due date until payment is received.
4 DELIVERY, INSPECTION AND ACCEPTANCE
4.1 Any timeframes quoted by CTALS for delivery of the Products are estimates only.
4.2 Delivery will be made in the manner and at the place specified in the relevant Quotation or Order Confirmation, or if not specified delivery will be made as determined by CTALS.
4.3 The Customer shall inspect all Products upon delivery and shall within ten (10) days of delivery give notice to CTALS of any matter or thing by which the Customer alleges that the Products are not in accordance with the Order Confirmation or Quotation or these Conditions. Failing such notice, subject to any non-excludable rights, guarantees or conditions implied by law, such as the Consumer Guarantees, the Products shall be deemed to have been delivered to and accepted by the Customer.
5 returns
5.1 The Customer is not entitled to return any of the Products for credit, except with the prior approval of CTALS, or where CTALS is required to accept a return of goods under the ACL.
5.2 Any permitted returns must be freight prepaid and will only be accepted if they are in the original packing, undamaged, unused and otherwise in a saleable condition, and (unless otherwise agreed with CTALS) and the Products are returned within 14 days of supply.
5.3 CTALS may, in its discretion, charge a restocking fee of 25% of the Purchase Price of the Products returned, which may be deducted from any refund amount.
6 INDEMNITIES AND EXCLUSION OF LIABILITIES
6.1 The Customer expressly agrees that:
(a) use of the Products is at the Customer’s risk;
(b) all information, specifications provided by CTALS in relation to the Products are approximations only; and
(c) subject to any Consumer Guarantees, small deviations or slight variations in the Products compared to any information, specification or sample provided by CTALS, which do not substantially affect the Customer's use of the Products, will not entitle the Customer to reject the Products upon delivery or to make any Claim in respect of the deviations or variations.
6.2 The Customer acknowledges and agrees that, although any advice, recommendation, information, assistance or service given by CTALS in relation to any Products (Advice), is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given:
(a) CTALS gives no warranty as to the accuracy, appropriateness or reliability of any Advice;
(b) the Customer may not rely on any Advice provided to it;
(c) the Customer releases CTALS from any Claims arising from or in relation to any reliance by the Customer or a third party on the Advice.
6.3 All express or implied representations, conditions, statutory guarantees, warranties, undertaking, inducements and provisions (whether based on statute, common law or otherwise), relating to these Conditions, that are not contained within the Conditions, are excluded to the fullest extent permitted by law.
6.4 Nothing in these Conditions excludes, restricts or modifies any right or remedy, or any guarantee, term, condition, warranty, undertaking, inducement or representation, implied or imposed by any legislation which cannot lawfully be excluded or limited (Non-Excludable Provision). This may include the Consumer Guarantees.
6.5 Subject to any Non-Excludable Provisions, CTALS gives no warranty and will not be liable for any Claim in relation to:
(a) the Products provided or supplied;
(b) any defect, deficiency or discrepancy in the Products;
(c) any alterations or modifications to the Products;
(d) damage or failure caused by unusual or non-recommended use or application of the Products; or
(e) any factors beyond CTALS’ reasonable control.
6.6 Subject to any Non-Excludable Provisions, CTALS is not liable for any Claims:
(a) arising out of or in any way connected with the Products, including any Claims caused directly or indirectly by:
(i) any defect in material or workmanship of, or any other defect whatsoever in, or unsuitability for any purpose of the Products or any part of the Products; or
(ii) any default or negligence on the part of CTALS or of any employee, contractor or agent of CTALS or of any person for whom CTALS has legal responsibility relating to the supply of, or otherwise concerning the Products or any part of the Products;
(b) arising out of or in any way connected with the delivery or collection of the Products;
(c) for any special, indirect, consequential or economic loss or damage or loss of profits, including for injury or death of any person.
6.7 Subject to any Non-Excludable Provisions, CTALS’ total liability for any Claim arising in relation to the Products or this Agreement is limited, at the option of CTALS in its absolute discretion, to:
(a) the repair or replacement of the Products or the supply of substitute Products (or the cost of doing so); or
(b) the refund of the costs of the Products.
6.8 The Customer acknowledges that:
(a) the manufacturer and/or applicable laws and regulations may require the Products to be installed by a licensed electrician; and
(b) if so, where the Product is not installed by a licenced electrician, any applicable manufacturer or supplier warranties for the Products, including under the Consumer Guarantees, may be void or unenforceable.
6.9 The Customer indemnifies and keeps indemnified CTALS, and each of its directors, employees, servants and agents (Indemnified Parties) in respect of any Claims against, or suffered by, an Indemnified Party in connection with:
(a) any negligent acts or omissions of the Customer;
(b) any breach of these Conditions by the Customer;
(c) the delivery or collection of the Products, from the time the Products are loaded for transport or otherwise collected by the Customer from CTALS’ premises.
6.10 The provisions in this clause 6 remains in force after the termination of these terms of trade
7.1 CTALS shall not be liable for any delay or failure to perform its obligations under these Conditions, if such failure or delay is due to Force Majeure.
7.2 CTALS shall notify the Customer as soon as practicable of any anticipated delay due to Force Majeure, and the performance of CTALS’s obligations shall be suspended during the period of delay due to such Force Majeure.
7.3 CTALS will use all reasonable endeavours to comply with time limitations and schedules agreed between the Customer and CTALS. However, CTALS shall not be liable for any loss or damage resulting from any delay in supplying the Products, including any indirect, consequential, special or economic loss or damage, or loss of profits.
8 IMPORT EXPORT RESTRICTIONS
8.1 The Customer acknowledges that
(a) all Products which are manufactured in or originate from the United States of America (and all information relating to those Products) are subject to the regulations in that jurisdiction, including the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR); and
(b) any infringement of such regulations may incur significant fines and penalties.
8.2 The Customer shall be responsible and liable for compliance with any regulations relating to the import or export of the Products, including where an export licence is required by any government authority or jurisdiction.
8.3 The Customer indemnifies CTALS in respect of any Claim arising from or in connection with a breach of any regulations or requirements relating to the import or export of the Products.
9 Breach of agreement by the customer
(a) breaches this Agreement and fails to remedy the breach within seven (7) days; or
(b) if the Customer becomes bankrupt or insolvent, executes a personal insolvency agreement, enters into liquidation, administration, receivership or cease to carry on business,
then, CTALS shall be entitled to:
(c) terminate this Agreement; and/or
(d) sue for damages and recovery of all monies owing by the Customer.
9.2 These rights are in addition to any other rights CTALS has under this Agreement and do not exclude any right or remedy under law or equity.
10 GST
10.1 Unless the context requires otherwise, words and phrases used in this clause that have a specific meaning in the GST law will have the same meaning in this clause.
10.2 Unless specifically stated otherwise, all amounts payable or to be provided under or in connection with this Agreement are exclusive of GST.
10.3 If GST is payable, or notionally payable, on a supply made under or in connection with this Agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable, or notionally payable, on that supply (the GST Amount). The GST Amount is payable at the same time that the other consideration for the supply is provided. CTALS must provide a tax invoice for the GST Amount. This clause does not apply to the extent that the consideration for the supply is expressly stated to be GST inclusive or the supply is subject to reverse charge.
10.4 The Customer acknowledges and agrees that CTALS may provide a proforma or draft tax invoice prior to supply of the Products, but is only required to provide the final tax invoice to the Customer at the same time as the supply of the Products.
10.5 Where any indemnity, reimbursement or similar payment under this Agreement is based on any cost, expense or other liability, it will be reduced by any input tax credit entitlement, or notional input tax credit entitlement, in relation to the relevant cost, expense or other liability.
10.6 If an adjustment event occurs in relation to a supply made under or in connection with this Agreement, the GST Amount will be recalculated to reflect that adjustment and an appropriate payment will be made between the parties.
10.7 This clause will not merge upon completion and will continue to apply after expiration or termination of this Agreement.
11 NO RELIANCE
11.1 Subject to clauses 6.1 and 6.5, the Customer acknowledges that neither CTALS nor any person acting on behalf of CTALS have made any representation or other inducement the Customer to enter into this Agreement and the Customer has not entered into this Agreement in reliance on any representations or inducements except for those representations contained in this Agreement.
12 Passing of property, title AND RISK
12.1 Property and title in the Products shall not pass until full payment of all outstanding invoices together with any interest, charges or other costs payable have been paid in full by the Customer.
12.2 Risk in the Products passed to the Customer immediately upon delivery to the Customer or collection by the Customer.
13 ASSIGNMENT
13.1 CTALS may assign this Agreement to any third party without the Customer’s consent.
14.1 This Agreement, and in particular the scope of the Services and the Price, may be varied by written agreement between the parties.
15 vienna sales convention
15.1 To the fullest extent permitted by law, the United Nations Convention on Contracts for the International Sale of Goods (Vienna 1980), known as the Vienna Sales Convention, does not apply to the sale or supply of the Products under these Conditions, nor do any of the conditions express or implied by the Vienna Sales Convention form part of these Conditions.
16 SEVERABILITY
16.1 If any part of this Agreement becomes void or unenforceable for any reason then that part will be severed with the intent that all remaining parts will continue to be in full force and effect and be unaffected by the severance of any other parts.
17 GOVERNING LAW
17.1 This Agreement is executed pursuant to and governed by the laws of Queensland and each party submits to the non-exclusive jurisdiction of the courts of that State in respect of any proceedings arising in connection with this Agreement. Each party waives any objection to the venue of any legal process in these courts on the basis that the process has been brought in an inconvenient forum.
18 NO WAIVER OF RIGHTS
18.1 Any waiver in regard to the performance of this Agreement operates only if in writing and applies only to the specified instance, and must not affect the existence and continued applicability of the terms of it thereafter.
18.2 The failure of a party to this Agreement to enforce a provision or the granting of any time or indulgence will not be construed as a waiver of the provision nor a waiver of the party’s right to enforce the provision at a later time.
19.1 The person signing any document which forms part of this Agreement for and on behalf the Customer hereby warrants that he or she has the Customer’s authority to enter into this Agreement on behalf of the Customer and grant the security interests in connection with it and is empowered to bind the Customer to this Agreement and each security interest granted in connection with it.
19.2 The person signing this Agreement on behalf of the Customer indemnifies CTALS against all losses, costs and claims incurred by CTALS arising from that person not in fact having such power and/or authority.
20 ELECTRONIC SIGNING
20.1 In this clause, “Electronic Signature” means an electronic method of signing that identifies the person and indicates their intention to sign the Agreement.
20.2 If this Agreement is signed by any person using an Electronic Signature, the parties:
(a) consent to the use of electronic communication to give any notice or information required by law to be given before signing this Agreement;
(b) agree to enter into this Agreement in electronic form; and
(c) consent to either or both parties signing the Agreement using an Electronic Signature.
21 ENTIRE AGREEMENT
21.1 This Agreement and the documents referred to in this Agreement represent the entire agreement between the parties and superseded all prior representation, agreements, statements and understandings between the parties.