Domestic Terms and Conditions of LENBRIDGE FORGE PTY LTD ABN 083 841 025 PDF

Terms and Conditions of LENBRIDGE FORGE PTY LTD ABN 083 841 025 (“the Supplier”)
1. Application
These Terms and Conditions (“T&Cs”), and no terms and conditions of the Customer, will apply to
any supply of Goods and/or Services by the Supplier to the Customer.
2. Definitions
In these T&Cs:
“Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for
any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or
any other remedy of whatever nature and however arising, whether direct or indirect, and whether in
contract, tort (including but not limited to negligence) or otherwise;
“Confidential Information” means information, whether in visual, oral, documentary, electronic,
machine-readable, tangible, intangible or any other form, relating to the Supplier or any related entity
of the Supplier including but not limited to any information relating to any business, products, markets,
operations, processes, techniques, technology, forecasts, strategies or any other matter;
“Contract” means a contract formed as a result of the acceptance of an Order by the Supplier;
“Control” has the meaning set out in the Corporations Act 2001 (Cth);
“Customer” means the customer set out in any quotation, offer or other document provided by the
Supplier (or, in the absence of such information, the customer who placed the Order);
“Delivery Address” means any delivery address in a Contract;
“Delivery Date” means any delivery date in a Contract;
“Goods” means the goods in a Contract;
“Insolvency Event” means any of the following, or any analogous, events:
(a) the Customer disposes of the whole or any part of the Customer’s assets, operations or business
other than in the ordinary course of business;
(b) the Customer ceases, or threatens to cease, carrying on business;
(c) the Customer is unable to pay the Customer’s debts as the debts fall due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the
Customer’s assets, operations or business;
(e) any step is taken for the Customer to enter into any arrangement or compromise with, or
assignment for the benefit of, the Customer’s creditors or any class of the Customer’s creditors;
or
(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional
liquidator or liquidator of the whole or any part of the Customer’s assets, operations or business;
“Intellectual Property Rights” means any present or future rights conferred by statute, common law or
equity in any part of the world in relation to any confidential information, copyright, trade marks,
service marks, designs, patents, circuit layouts, plant varieties, business names, domain names,
inventions, trade secrets or other results of intellectual activity in any industrial, commercial, scientific,
literary or artistic fields;
“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not
limited to reasonable legal fees);
“Order” means any written or verbal order by the Customer to the Supplier for Goods and/or Services;
“Personnel” means any employee, servant, contractor, subcontractor, agent, partner, director or
officer of a party;
“Price” means the price of the Goods and/or Services (including but not limited to any delivery or
other charges); and
“Services” means the services in a Contract and any services associated with the Goods.
3. Order for Goods / Services
3.1 Any Order by the Customer to the Supplier and/or any acceptance of any Goods and/or Services by
the Customer will constitute agreement to these T&Cs by the Customer.
3.2 If the Supplier accepts an Order, the parties will have created a binding Contract and the Supplier will
supply the Goods and/or Services to the Customer, and the Customer will pay the Price to the
Supplier in accordance with the terms of the Contract (which will include these T&Cs).
3.3 The Customer is not entitled to cancel any Contract and must pay to the Supplier any costs
associated with the Customer purporting to cancel a Contract.
3.4 The Customer must provide the Supplier with written details of any required specifications or
properties of Goods and/or Services at the time the Customer provides an Order to the Supplier.
3.5 The Customer must ensure the specifications or properties of Goods and/or Services stated in any
Order by the Customer will be fit for the intended purpose of the Goods and/or Services.
3.6 The Supplier will be entitled to rely on the accuracy of any plans, specifications or other information
provided by the Customer.
3.7 If there are any errors in any plans, specifications or other information provided by the Customer to
the Supplier, the Supplier will be entitled to vary the Price.
3.8 The Supplier may cancel any Contract at any time prior to delivery of the Goods and/or Services with
no liability other than to repay any amount of the Price paid in advance of the cancellation.
4. Delivery of Goods
4.1 If the Supplier agrees to deliver Goods to the Customer, the Supplier:
(a) may charge delivery charges;
(b) will endeavour to deliver the Goods to the Delivery Address on the Delivery Date; and
(c) may charge further delivery charges if the Customer is unable to receive delivery of the Goods at
the Delivery Address or on the Delivery Date or in accordance with any other delivery
arrangements.
4.2 The Supplier will not be liable for any delay in the delivery of Goods to the Delivery Address.
4.3 The Customer will ensure a member of the Customer’s Personnel will be at the Delivery Address on
the Delivery Date to accept any delivery of Goods and sign the delivery docket on the Customer’s
behalf.
4.4 The Supplier may deliver any Goods to any person at the Delivery Address who has apparent
authority to receive delivery of the Goods.
4.5 The signature of a member of the Customer’s Personnel on the Supplier’s delivery docket will
represent acknowledgement by the Customer that the Supplier’s supply of the Goods complies with
the Contract and these T&Cs.
4.6 The Customer will inspect any Goods immediately on delivery of the Goods and will be deemed to
have accepted the Goods unless the Customer provides immediate written notice to the Supplier that
the Customer rejects the Goods.
5. Price
5.1 The Price is exclusive of GST unless otherwise stated by the Supplier in writing.
5.2 The Customer must not withhold, make deductions from, or set-off, payment of any money owed to
the Supplier for any reason.
5.3 The Supplier may charge, in addition to the Price, any other fees and charges that the Supplier
notifies to the Customer from time to time.
6. Credit Terms
6.1 The Customer must make full payment of the Price and any other amounts payable to the Supplier
before the Supplier supplies Goods and/or Services to the Customer unless the Supplier has granted
credit terms to the Customer in which case the Customer must make full payment of the Price and
any other amounts payable to the Supplier within 30 days of the date of the invoice.
6.2 If the Supplier grants credit terms to the Customer, the Customer agrees to grant the Supplier a
charge over the whole of the Customer’s present and future undertaking, property and assets
(including, without limitation, all of the Customer’s legal and beneficial interests in freehold and
leasehold land) as security for any amount owed by the Customer to the Supplier and the Customer
acknowledges the Supplier may lodge caveats or take any other action to enforce the Supplier’s
security over the charged property.
6.3 The Customer must reimburse the Supplier for the full amount of any bank or other fees associated
with any dishonoured payments or cheques and any legal, debt recovery or other expenses
associated with any action by the Supplier to recover money from the Customer.
6.4 The Supplier may charge monthly compound interest on any overdue amounts owed by the
Customer at a rate of 10% per annum above the Reserve Bank of Australia’s cash rate target.
7. Risk and Title
7.1 The risk in Goods passes to the Customer, and the Customer must insure the Goods, immediately
on the collection of the Goods by the Customer or delivery of the Goods by the Supplier.
7.2 The Customer will not receive title to Goods until the Customer makes full payment of the Price and
any other amounts payable to the Supplier.
7.3 Until title in the Goods passes to the Customer in accordance with these T&Cs, the Customer will:
(a) be only a bailee of the Goods;
(b) ensure the Goods are kept separate and identifiable from other goods;
(c) not grant any charge over, or interest in, the Goods to any third party;
(d) return any Goods to the Supplier immediately on request;
(e) authorise the Supplier or any agent of the Supplier to enter any land and premises owned,
occupied or controlled by the Customer where the Goods are located and take possession of
the Goods; and
(f) hold the proceeds from any sale or disposal of the Goods on trust for the Supplier.
8. Force Majeure
The Supplier will not be liable to the Customer for any failure to perform, or delay in performing, the
Supplier’s obligations under these T&Cs if the failure or delay is due to any cause beyond the
Supplier’s reasonable control and if any such failure or delay continues for a period of 30 days the
Supplier may terminate any affected Contract.
9. Confidential Information and Intellectual Property
9.1 The Customer will not use, or disclose to any third party, any Confidential Information disclosed to
the Customer.
9.2 No supply of Goods and/or Services to the Customer will grant to the Customer any Intellectual
Property Rights in respect of the Goods and/or Services.
10. Warranties
10.1 The Supplier does not warrant the Goods and/or Services are fit for any purpose whether or not
made known by the Customer or any third party to the Supplier or any member of the Supplier’s
Personnel.
10.2 The Supplier excludes all express and implied conditions and warranties in relation to the Goods
and/or Services expect those conditions or warranties that cannot be excluded by law.
10.3 Nothing in these T&Cs are intended to have the effect of contracting out of any applicable provisions
of the Trade Practices Act 1974 (Cth) or any Fair Trading Act of any State or Territory of Australia
except to the extent permitted by such Acts.
11. Liability
11.1 The Supplier’s liability for any Liability or Claim in relation to these T&Cs, any Contract, and any
supply of Goods and/or Services will be limited to the amount of the Price.
11.2 The Supplier will not be liable to the Customer or any other person for any Liability or Claim of any
kind whatsoever arising directly or indirectly (whether under statute, contract, tort, negligence or
otherwise) in relation to any indirect or consequential loss (including but not limited to any loss of
actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets,
goodwill, reputation, publicity, or use) or any other remote, abnormal or unforeseeable loss or any
similar loss whether or not in the reasonable contemplation of the parties.
12. Indemnity
The Customer indemnifies the Supplier and each member of the Supplier’s Personnel on a full and
continuing indemnity basis from and against any Liability or Claim arising directly or indirectly in
relation to:
(a) the Customer’s breach of these T&Cs or any Contract;
(b) the negligence or wilful misconduct of the Customer or any member of the Customer’s
Personnel;
(c) damage to the property of the Customer or any third party during any delivery of Goods;
(d) any spillage, breakage or contamination of Goods during any transport or delivery;
(e) the Goods and/or Services not being fit for any particular purpose;
(f) any tests conducted by a third party in relation to Goods and/or Services;
(g) the Customer or any member of the Customer’s Personnel directly or indirectly causing any
delay in the supply of any Goods and/or Services;
(h) the Customer or any member of the Customer’s Personnel refusing to accept any delivery; or
(i) the Customer or any member of the Customer’s Personnel purporting to cancel a Contract.
13. Termination
The Supplier may immediately terminate, or suspend the performance of, any Contract and the
Customer must immediately pay any money owed to the Supplier if:
(a) the Customer breaches a term of these T&Cs or any Contract and does not remedy the breach
within 7 days of receiving a notice from the Supplier requiring the Customer to do so;
(b) the Customer breaches a term of these T&Cs or any Contract which is not capable of remedy;
(c) there is any direct or indirect change in the Control of the Customer; or
(d) an Insolvency Event arises in relation to the Customer.
14. Miscellaneous
14.1 These T&Cs or any Contract may only be amended with the Supplier’s express written agreement.
14.2 Any waiver by the Supplier must be express and in writing.
14.3 The Supplier’s rights under these T&Cs or any Contract do not exclude any other rights of the
Supplier.
14.4 If any provision of these T&Cs or any Contract is unenforceable, the provision will be severed and
the remaining provisions will continue to apply.
14.5 The Customer must immediately provide written notice to the Supplier if there is any direct or indirect
change in the Control of the Customer.
14.6 The Supplier may assign any rights or obligations under any Contract or these T&Cs or any Contract
to any third party.
14.7 The Customer may only assign any rights or obligations under any Contract or these T&Cs or any
Contract with the Supplier’s prior written consent.
14.8 These T&Cs and any Contract will be governed by the law of the state in which Supplier’s address is
located.
15. Interpretation
In these T&Cs:
(a) the headings will not affect interpretation of these T&Cs;
(b) the singular includes the plural and vice versa, and a gender includes other genders;
(c) any other grammatical form of a word or expression defined in these T&Cs has a corresponding
meaning;
(d) a reference to a document or instrument includes the document or instrument as novated,
altered, supplemented or replaced from time to time;
(e) a reference to a party to a document includes the party’s executors, administrators, heirs,
successors in title, permitted assigns and substitutes;
(f) a reference to a person includes a natural person, body corporate, partnership, trust,
association or any governmental, administrative or judicial body, tribunal, department,
commission, authority, agency, minister, corporation or instrumentality or any other entity;
(g) a reference to a statute, ordinance, code or other law includes regulations, rules and other
instruments under the statute, ordinance, code or other law and any consolidations,
amendments, re-enactments or replacements;
(h) a word or expression defined in the Corporations Act has the meaning given to the word or
expression in the Corporations Act;
(i) the meaning of general words is not limited by specific examples introduced by “including”, “for
example” or similar expressions;
(j) any agreement, representation, warranty or indemnity by two or more parties binds those
parties jointly and severally;
(k) any undertaking by a party not to do any act or thing will be deemed to include an undertaking
not to permit or suffer the doing of that act or thing;
(l) a rule of construction does not apply to the disadvantage of a party because the party was
responsible for the preparation of these T&Cs or any part of these T&Cs; and
(m) if a day on or by which an obligation must be performed or an event must occur is not a
business day, the obligation must be performed or the event must occur on or by the next
business day.