STANDARD TERMS AND CONDITIONS OF SALE

PURCHASE ORDER STANDARD TERMS AND CONDITIONS

1. Definitions 

In these Terms unless the contrary intention appears:

‘Australian Consumer Law’ means the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth);

‘Business Day’ means any day that banks are generally open for business in Adelaide but not a Saturday, Sunday or a public holiday pursuant to the Holidays Act 1910 (SA);

‘Contract’ means the contract referred to in clause 3, being the contract formed between the Supplier and the Customer for the sale of Goods;

‘Customer’ means the party or parties entering into the Contract with the Supplier;

‘Delivery’ means the delivery of the Goods to the Customer to the address specified in the Contract;

‘Goods’ means the products to be supplied by the Supplier in accordance with the Contract;

‘PPSA’ means Personal Property Securities Act 2009 (Cth);

‘regulator‘ includes TCA;

‘Supplier’ means Airtec Corporation Pty Limited ACN 122 444 277  and Airtec Manufacturing Pty Ltd ACN 115 521 072; and

‘TCA‘ means Transport Certification Authority;

‘Terms’ means these standard terms and conditions.

2. Interpretation

In these Terms unless the contrary intention appears:

  • the singular includes the plural and vice versa;
  • a reference to a person includes any corporation, partnership, joint venture, trust, association, government, or public authority and vice versa;
  • where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
  • a reference to any party to this or any other document includes the party’s successors and permitted assigns;
  • a reference to any legislation or legislative provision includes any statutory modification, substitution or re-enactment and any subordinate legislation issued under that legislation or provision;
  • mentioning anything after include, includes or including does not limit what else might be included; and
  • a reference to a person that comprises two or more persons means those persons jointly and severally.

3. Contract

The specifications, timing, price and other details of the Goods to be provided by the Supplier to the Customer will be agreed in writing (including by purchase order and acceptance, letter, email, website order or by other electronic written communications) between the parties (‘the Contract’). 

If the Supplier provides a quotation (‘the Quotation’) in relation to the Goods to be provided:

  • the Quotation is valid for 30 days unless withdrawn earlier by the Supplier or otherwise agreed between the parties; and
  • the Quotation should not be construed as an offer or obligation to sell Goods and the Supplier reserves the right to accept or reject any request or order from the Customer to provide the Goods.

If the Customer makes a request or order (‘the Order’) for the Supplier to sell Goods:

  • the Order should be construed as an offer and not as an acceptance of an offer previously made by the Supplier;
  • the Order does not create any obligation on the Supplier to sell the Goods; and
  • the Contract will not be formed until such time as the Supplier accepts the Order in writing.

Once formed, the Contract and these Terms constitute the entire agreement between the Supplier and the Customer.  All prior negotiations, agreements, arrangements, representations, understandings and correspondence are superseded by the Contract and these Terms.

The Contract and these Terms will in all circumstances prevail over the Customer’s terms and conditions (if any), unless the Supplier agrees in writing to be bound by the Customer’s terms and conditions.

To the extent that there is any inconsistency between the Contract and these Terms, these Terms prevail unless the inconsistency is expressly agreed in writing.

4. Prices

The price for the sale of Goods will be agreed in the Contract, or will be specified in the invoice or account issued by the Supplier to the Customer.

The Supplier may increase the price of Goods as agreed or specified in accordance with clause 4 if the price increase results from the introduction of any legislation, regulation or government policy.

Unless otherwise stated:

  • the price for the Goods agreed in the Contract and any other amount payable under the Contract or these Terms shall be exclusive of any tax payable pursuant to A New Tax System (Goods and Services Tax) Act 1999 (Cth) (‘GST’); and
  • the Customer will be required to pay to the Supplier an amount equal to the GST in addition to the price or relevant amount.

5. Delivery

5.1 Delivery Terms

The Customer will, unless the Supplier and the Customer otherwise agree, bear the cost of Delivery of the Goods.

5.2 Delivery Date

The Supplier will make all reasonable efforts to have Goods Delivered to the Customer by the date agreed between the parties, but the Supplier will not be liable for:

  • any failure to Deliver, or delay in Delivery of, Goods for any reason;
  • any damage or loss due to unloading or assembling the Goods; and
  • any damage to property caused upon entering premises to Deliver the Goods.

Acceptance

The Customer will inspect all Goods upon Delivery.

If any Goods are damaged, wrongly supplied or not in accordance with the Contract, the Customer may reject or return those Goods in accordance with clause 6.

The Customer will be deemed to have accepted the Goods supplied in the following events:

  • failure by the Customer to reject or return those Goods in accordance with clause 6; or
  • use of the Goods in any way by the Customer.

The Customer will indemnify the Supplier against any losses, costs or expenses incurred by the Supplier due to any failure by the Customer to accept the Goods at the time of Delivery.

Except as required by law, and subject to clause 6, the Supplier will be under no obligation to accept Goods returned for any reasons which are (in the Supplier’s sole discretion) not satisfactory to the Supplier.

6. Rejection of Goods and Services

The Customer may reject any Goods only in accordance with this clause.

If any Goods are damaged, wrongly supplied, or not in accordance with the Contract, the Customer must notify the Supplier:

  • by providing full particulars of the claim in writing within five Business Days of the receipt of those Goods; or
  • where the claim relates to non-Delivery of Goods, by providing full particulars of the claim in writing within five Business Days of the agreed date of Delivery of the Goods in the Contract.

All Goods returned or rejected are subject to assessment by the Supplier.

To the extent permitted by the Australian Consumer Law or any other law, the Supplier may at its sole discretion refuse to accept the return or rejection of the Goods, or dispute or reject any claim made under this clause.

Unless the Supplier and the Customer otherwise agree in writing, the Customer will bear the costs of arranging for the return of any Goods.

The Customer agrees to keep the Goods until the Supplier can arrange the inspection of the Gods or acceptance of returned Goods;

Subject to the Customer’s rights under the Australian Consumer Law, the following Goods cannot be returned or rejected by the Customer under any circumstances:

  • those that were specially made, sourced, ordered or purchased for the Customer;
  • those that were used, installed, damaged or altered in any way by the Customer;
  • those that were sold to the Customer at wholesale or discounted prices, or as second grade or quality; or
  • those that are no longer in stock in store by the Supplier or have been discontinued.

To the extent permitted by law, Goods returned will be subject to a handling fee.  The handling fee will be 10% of the price of the Goods (including GST).

7. Payment

7.1 Payment Terms 

Subject to clause 7.2, the Customer will pay for the Goods:

  • in the manner and within the time specified in the invoice or account issued by the Supplier to the Customer; or
  • if the time for payment is not specified, before the time specified by the Supplier for Delivery or collection of the Goods.

The Customer must pay for the Goods in cash, by cheque, by credit card or by any other method of payment specified by the Supplier.

Payment is only received by the Supplier when it receives cash or when the proceeds of other methods of payment are credited and cleared to the Supplier’s bank account.

The Customer may not assert or exercise any right of set-off against monies payable by it to the Supplier.

7.2 Credits

The Supplier may, upon request by the Customer, and subject to the Customer complying with the terms set out in this clause, grant the Customer credit to pay for the relevant Goods.

Unless the Supplier and the Customer agree in writing, the credit period will be for a period ending 14 days from the date on which the Goods are Delivered.

The Supplier can cancel or vary the Customer’s credit arrangements at any time and for any reason by giving reasonable notice to the Customer.

The Customer authorises the Supplier, its employees and agents to make any inquiries it deems necessary to investigate the credit worthiness of the Customer including inquiries with persons nominated as trade referees, bankers or other credit providers (‘the Information Sources’).

The Customer authorises the Information Sources to disclose to the Supplier information concerning the Customer, requested by the Supplier.

Unless otherwise agreed, the Customer:

  • charges in favour of the Supplier all beneficial interests (freehold and leasehold) in real estate held now or in the future by it as security for payment of any monies payable by the Customer to the Supplier; and
  • will, if requested by the Supplier, execute a mortgage or other instrument of security in a form requested by the Supplier.

The Customer shall pay any expenses, costs or disbursements incurred by the Supplier in recovering any outstanding monies, including debt collection, agency fees and legal fees.

The Customer must notify the Supplier in writing if there is a change in the shareholding or ownership of the Customer or any material change in the Customer’s financial position.

7.3 Interest

Interest may be charged on accounts which remain unpaid from the date payment is due in accordance with clause 7.1  Interest may be charged on the outstanding amounts until they are paid in full.

The interest rate will be seven percentage points above the cash rate target announced by the Reserve Bank of Australia from time to time.

That interest will accrue and be recoverable from day to day.

8. Title and Risk

8.1 Retention of Title

The legal and equitable title to the Goods will only be transferred from the Supplier to the Customer when the Customer has met and paid all that is owed to the Supplier on any account whatsoever.

The Customer acknowledges that until the Customer has met and paid all that is owed to the Supplier on any account whatsoever, the Customer holds the Goods as bailee for the Supplier and that a fiduciary relationship exists between the Customer and the Supplier.

The Customer will store the Goods safely and in such manner to ensure that they are capable of being clearly identified as the property of the Supplier.

If required, the Customer shall deliver the Goods which are subject to this clause 8.1 to the Supplier at the Customer’s cost.

If the Customer defaults as contemplated by clause 12, in addition to clause 12, the Supplier may, without notice, take possession of the Goods and the Customer agrees that representatives of the Supplier may enter the Customer’s premises for that purpose.

Despite clause 8.1, the Customer may sell as fiduciary agent for the Supplier the Goods to a third party provided that where the Customer is paid by that third party, the Customer holds the proceeds separate from other monies, to the extent of the amount owing by the Customer to the Supplier.

Notwithstanding this clause, the Customer is still required to pay the Supplier for:

  • Goods already Delivered; and
  • Goods ordered to specification and not yet Delivered.
8.2 Risk

Subject to clauses 8.2, risk in the Goods passes to the Customer upon Delivery, or upon title in the Goods passing to the Customer, whichever is the earlier.

The Customer acknowledges that the following remain at the risk of the Customer:

  • all components supplied by the Customer for inclusion into the assembly of the Goods by the Supplier; or
  • all goods or components supplied for repair or modification;
  • all calibration and installation services associated with the Goods (not provided by the Supplier).

Where the Customer’s components or goods remain in the possession of the Supplier, it will take reasonable care of and provide adequate storage for the Customer’s components or goods but the Supplier takes no responsibility for loss or damage to the components or goods.

The Customer acknowledges that insurance of any of the Customer’s goods is the responsibility of the Customer.

9. Warranty

9.1 General

In this clause 9, any reference to ‘You’ means the Customer and any reference to ‘Our’ means the Supplier.

9.2 Warranty under Australian Consumer Law

Our Goods come with guarantees that cannot be excluded under the Australian Consumer Law.  You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage.  You are also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.

This clause 9 should not be read as excluding, restricting or modifying any rights and remedies available to You under the Australian Consumer Law.

9.3 Scope of warranty

Other than the warranty set out at clause 9.2, the Supplier makes no other express or implied warranties in respect of the Goods, and expressly excludes all other warranties, express or implied (including any express or implied warranty as to merchantability or fitness for purpose).

The Supplier will not be liable for any damages, losses (including consequential losses), defects or failures whatsoever caused by:

  • misuse, faulty installation, or unauthorised or faulty service, repairs, maintenance or calibration; or
  • You having the Goods serviced, repaired, maintained, or calibrated by third parties without the previous written approval of the Supplier.

The Supplier reserves the right to change specifications, modify designs and discontinue items without incurring obligation and whilst every effort is made to ensure descriptions, specifications and other information is correct, no warranty is given in respect thereof and the Supplier shall not be liable for any error therein;

To honour a valid claim under any warranty, the Supplier will either (in its sole discretion):

  • replace the Goods or supply equivalent Goods;
  • repair the Goods;
  • pay the cost of replacing the Goods or of acquiring equivalent Goods; or
  • pay of the cost of having the Goods repaired.

Notwithstanding any other provision in these Terms, all faulty gauges that are within any applicable warranty period are to be returned to the Supplier for assessment and repairs.  Gauges which are found to be water damaged will not be covered under any warranty.

10. Acknowledgments

The Customer acknowledges and agrees that:

the Supplier does not represent or warrant that the Goods are certified to, or will, meet any particular performance criteria or relevant standards as to:

  • fire safety;
  • air hoses and air hose connectors; or
  • installation.

if the Customer wishes to obtain any certifications in respect of the Goods regarding the matters referred to in clause 10 and any other matter it considers desirable (‘Certifications’), the Customer may obtain such Certifications; and

any actions by the Customer to obtain any Certifications will be:

  • the sole responsibility of, and at the sole risk of, the Customer; and
  • at the Customer’s cost in all things.

11. Personal Property Securities Act 2009 (Cth)

The Customer acknowledges and agrees that for the purposes of the PPSA:

  • the Contract and the Terms constitute a ‘security agreement’;
  • the Supplier holds a ‘security interest’ in respect of all Goods supplied and in any proceeds of the sale of the Goods; and
  • any supply of Goods to which clause 8.1 applies will constitute a ‘purchase money security interest’.

The Customer will execute all documents, provide all such information and do such further acts as the Supplier may reasonably require to enable the registration a ‘security interest’ or a ‘purchase money security interest’ under the PPSA.

To the extent permitted by law and the PPSA, the Customer agrees to waive all of its rights to receive any notice, statement or information under sections 95, 123, 130, 132(3)(d) and 135 of the PPSA, and all of its rights under sections 142 and 143 of the PPSA.

The Customer will pay:

  • the costs, charges and expenses of and incidental to the registration of a ‘security interest’ or a ‘purchase money security interest’ in favour of the Supplier under the PPSA; and
  • all reasonable legal costs arising from any disputes or negotiations with third parties claiming an interest in any Goods supplied.

12. Default

The Customer will be in default if:

  • the Customer breaches any of the Terms or the Contract;
  • payment for the Goods has not been received by the Supplier in accordance with clause 7;
  • the Customer being an individual commits an act of bankruptcy; or
  • the Customer being a body corporate becomes insolvent within the meaning of section 95A of the Corporations Act 2001 (Cth).

If the Customer defaults, the Supplier may:

  • treat the whole of the Contract as repudiated and sue for breach of contract;
  • refuse to supply any Goods to the Customer;
  • refuse to continue to provide the Goods to the Customer;
  • claim the return of any Goods in the Customer’s possession where title has not passed to the Customer;
  • without notice to the Customer withdraw or vary any credit the Supplier has provided to the Customer; and, or
  • without notice to the Customer make all monies owing by the Customer to the Supplier on any account immediately due and payable.

Notwithstanding any provision in this clause, the Supplier reserves all of its rights to claim any remedy available to it as a result of the Customer’s default.

13. Limitation of Liability

If under the Australian Consumer Law or any other law any terms which apply to the sale of Goods under the Contract cannot be legally excluded, restricted or modified then those terms apply only to the extent required by law.

All terms, which would otherwise be implied by law or otherwise, are excluded except as stated in these Terms.

To the extent permitted by law, the Supplier’ liability for any breach of the terms of the Contract, any condition or warranty implied by the provisions of the Australian Consumer Law, and any other express or implied warranty, is limited to and will be completely discharged by any one of the following as determined by the Supplier in its absolute discretion:

  • the replacement of the Goods or the supply of equivalent Goods;
  • the repair of the Goods;
  • the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
  • the payment of the cost of having the Goods repaired.

Except as expressly provided in this clause and to the extent permitted by law, the Supplier is not liable to the Customer (and any party claiming through the Customer) for:

  • any claim made under, or in connection with, the Contract, in tort, under statute, in equity or otherwise in respect of defects whatsoever in Goods for the loss or damage to person or property arising from or caused from such defects;
  • any indirect, special or consequential loss or damage of any nature whatsoever resulting from or caused in any way by the Goods where such loss or damage includes:
    • any loss of income, profit or business; or
    • any loss of goodwill or reputation.

14. Indemnity 

The Customer will indemnify and keep indemnified and hold the Supplier harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by the Supplier, and from and against all actions, proceedings, claims or demands made against the Supplier, arising from one or more of the following:

  • any claim or demand made against the Supplier arising from or contributed to by a breach of the Contract or the negligence or other default, act or omission of the Customer or any of its employees, contractors or agents (including, without limitation any liability of the Supplier under any agreement between it and a regulator relating to the Goods where that liability arises from or is contributed to by the acts or omissions of the Customer);
  • any claim or demand made against the Customer by an employee, contractor or agent of the Customer in connection with the Contract;
  • a breach or default by the Customer under the Contract;
  • the Customer’s failure to comply with any laws, rules, standards, regulations or instructions applicable in relation to the Goods or the use of the Goods;
  • any negligence or breach of duty by the Customer and its employees, agents or contractors in relation to the Goods or the use of the Goods including, without limitation:
    • misuse, faulty installation, or unauthorised or faulty service, repairs, maintenance or calibration; and
    • the Customer having the Goods serviced, repaired, maintained, or calibrated by third parties without the previous written approval of the Supplier; and
    • any other act or omission by the Customer in connection with the Goods or the Agreement

The Customer’s obligation to indemnify under this clause 14 will be proportionately reduced to the extent that:

  • the act or omission of the Supplier or its consultants, agents or other contractors (not being employed by the Customer) contributed to; or 
  • the Supplier failed to use reasonable endeavours to prevent or mitigate any actions, proceedings, claims, demands, losses, damage, penalties, costs and expenses which the Supplier may suffer, incur, or for which the Supplier may become liable.

15. Advice

Whilst all care and consideration is taken by the Supplier in providing advice for the purpose of, or in the course of, providing the Goods, to the extent permitted by law and subject to clause 13, the Supplier is not liable to the Customer (and any party claiming through the Customer) for any claim made under, or in connection with, the Contract, in tort, under statute, in equity or otherwise in respect of the advice.

16. Intellectual Property

The Customer warrants to the Supplier that the Supplier is entitled to use any drawings, specifications and documents provided to the Supplier for the purposes of, or in the course of, the supply of Goods (‘Intellectual Property‘) and that such use does not infringe any third party’s intellectual property rights.

The Customer indemnifies the Supplier against all claims, losses and damages incurred by the Supplier as a result of drawings, specifications and, or documents provided by the Customer to the Supplier for the purposes of, or in the course of, the supply of the Goods breaching a third party’s intellectual property rights.

17. Confidential information

A party (‘the Disclosee’) must keep confidential all information disclosed to it by the other party (‘the Discloser’).

The Disclosee must use its best endeavours to safeguard the confidential information and may not use or disclose such information unless:

  • it receives the prior written consent of the Discloser;
  • such information enters the public domain (other than as a result of a breach of this clause); or
  • the use or disclosure is required by law.

The provisions of this clause survive the termination or expiry of the Contract.

Notwithstanding the other provisions of this clause 17, the Customer consents to the Supplier retaining the Customer’s company information, unique identifier for the Customer (and any calibration services provider engaged by the Customer), and such other details as to vehicles and calibration of vehicles as is reasonably required to meet the Supplier’s disclosure obligations under any applicable law or regulation. 

18. Termination due to cessation of approval of the Goods by any regulator

If any regulator determines that the Goods no longer meet the requirements set out in any regulations or approvals issued by that regulator which apply to the Goods, or suspends any approval in respect of the Goods, then the Supplier may, by written notice, terminate this Contract forthwith and, or, require the Customer to:

  • cease holding out the Goods as approved; and 
  • as the Supplier directs, destroy, deliver up, or otherwise deal with any and all Intellectual Property concerning the Goods (including certificates of conformance issued by a regulator relating to Goods).

The Customer must comply with any direction given to it by the Supplier under this clause.

19. Quality Standards 

The Supplier will supply Goods in accordance with the specifications, drawings, and requirements detailed in writing by the Customer in the Contract.

20. Force Majeure

If the Supplier’s ability to perform its obligations under the Contract is adversely affected by war, strike, trade dispute, epidemic, pandemic (including COVID-19), damage to plant or machinery, shortage of any material or labour or any cause beyond the Supplier’ control, the Supplier may, if it chooses, end the Contract or suspend it for a period determined by the Supplier by giving the Customer written notice.  The Supplier will not be liable for any loss, damage or liability which the Customer incurs.

The Customer must accept Delivery of the Goods notwithstanding any delay in Delivery caused by any of the events specified in clause 20.

21. Notice

A notice is deemed to have been given if it is in writing and executed by the sender or its agent and is:

  • delivered or sent by pre-paid post to the address on the Contract (or any other address notified to all parties in writing);
  • sent by facsimile transmission to the recipient’s last known facsimile number; or
  • sent or delivered to the recipient in accordance with the Corporations Act 2001 (Cth) or any other legislation.

A notice given in accordance with this clause is deemed to have been received:

  • if delivered or transmitted by facsimile:
    • on the day of transmission or delivery if the transmission or delivery occurred before 5.00 pm on a Business Day, and
    • otherwise, on the next Business Day; and
  • if sent by pre-paid post, on the third Business Day after posting.

Where two or more persons comprise a party, notice to one is effective notice to all.

22. General

The Customer cannot assign, charge or otherwise deal with its rights and obligations under the Contract and these Terms without the prior written consent of the Supplier.

The Contract and these Terms are governed by the laws of South Australia and the Commonwealth of Australia.  The parties submit to the jurisdiction of the Courts of South Australia and the Commonwealth of Australia.  Any proceeding brought in the Federal Court of Australia must be instituted in its South Australia District Registry.

The Customer acknowledges that it has been given reasonable opportunity to obtain independent legal advice before entering into the Contract.

The rights and obligations of the parties will not merge on completion of any transaction under the Contract and these Terms or upon the execution of any other document in connection with the subject matter of the Contract and the Terms.

All rights under the Contract and these Terms are in addition to and do not abrogate, limit or reduce any other rights that the Supplier may have.

Any provision of the Contract and these Terms that is invalid, unenforceable or illegal must be read down to the extent necessary to avoid that effect.  If that is not possible, that provision must be excluded from the Contract and these Terms but only to the extent necessary to avoid that effect.  All other provisions of the Terms continue to be valid and enforceable.

Unless otherwise specified, time is of the essence in the Contract.

The Supplier may vary the Terms with reasonable notice to the Customer.

A right or obligation under the Contract and these Terms cannot be waived except by a document executed by the party waiving that right or obligation and specifying the waiver.

The Customer must pay all stamp duty, registration fees and any other fees charged by any government authority or body in respect of the Contract and these Terms and any document required by the Contract and these Terms.