1) DEFINITIONS: In these Terms and Conditions of Sale:
- “ABT Group” means Advanced Braking Pty Ltd ACN 088 129 917 T/A Advanced Braking Technology and any of its related bodies corporate as that term is defined in the Corporation Act 2001 including Advance Braking Technology Ltd ACN 099 107 623.
- “Application” means the ABT Group application for credit form submitted by the Customer to ABT Group and accepted by the ABT Group;
- “Contract” has the meaning provided in clause 3 of these Term and Conditions
- “Customer” means any legal entities, including; public companies, private companies, partnerships, trusts individual sole traders and government bodies, who accept goods from the ABT Group
- “goods” means any goods and services supplied by ABT Group to the Customer
- “Order” has the meaning provided in clause 6 of these Terms and Conditions
- “Payment Date” has the meaning provided in clause 15 of these Terms and Conditions
- “PPSA” means the Personal Property Securities Act (2009) (Cth) and any associated regulations or subsidiary legislation
- “PPSR” means the Personal Property Securities Register established in accordance with s147 of the PPSA. “Terms and Conditions” means these terms and conditions of sale as may be amended from time to time in accordance with clause 33
2) INTERPRETATION: These Terms and Conditions:
- Replace all prior Terms and Conditions issued by ABT Group to the Customer in respect of goods provided to the Customer from the date the Customer is given notice of these Terms and Conditions in accordance with clause 33 or accepts them in accordance with clause 4. The Customer prior to the commencement of the Terms and Conditions shall remain subject to the Terms and Conditions current at the time the goods were provided;
- Unless otherwise provided on these Terms and Conditions, take precedence over any terms sets out in the Customer’s purchase order, regardless of whether the ABT Group has accepted the purchase order, to the extent of any inconsistency;
- The expression “Person” includes an individual, a body politic, a corporation, an association (incorporated or unincorporated), a statutory authority or persons identified as the Binder Group;
- References to legislation or legislative provisions will include any legislative or other modification or amendment thereto or consideration or replacement thereof.
- The terms “writing” and “written notice” include email.
3) THE CONTRACT: These Terms and Conditions together with:
- Any completed Application;
- Any Guarantee provided in favour of the ABT Group for the provision of goods;
- Any Order issued by the Customer and accepted by ABT Group; and
- Any invoice issued by ABT Group to the Customer for the provision of goods
- together make up the contract between ABT Group and the Customer for the supply of goods by ABT Group to the Customer (“Contract”).
4) BINDING TERMS AND CONDITIONS:
The only contractual erms which are binding upon ABT Group are those set forth herein or otherwise agreed to in writing by ABT Group and those, if any, which are imposed by law and which cannot be excluded. Where a term is imposed by law, the operation of such terms will be restricted and modified in operation to the maximum extent possible so as to comply with these Terms and Conditions. These Terms and Conditions and any agreement including them will be governed by the law of Western Australia and ABT Group and the Customer submits to the jurisdiction of the Courts of Western Australia. Any terms or conditions put forward by a Customer (whether contained in an Order or otherwise) will not be binding on ABT Group so far as they purport to amend, annul or vary any of these Terms and Conditions, unless specifically agreed by ABT Group in writing. All conversations, representations and statements not embodied in these Terms and Conditions or agreed in writing by ABT Group shall not be binding or form part of any Contract between the Customer and ABT Group. By accepting goods from ABT Group the Customer agrees to be bound by these Terms and Conditions.
5) PRIVACY AUTHORITY:
Where goods are supplied to the Customer on credit the Customer irrevocably authorises ABT Group, its employees and agents to make such enquiries as it deems necessary to investigate the credit worthiness of the Customer from time to time including (but without limiting the generality of the forgoing) the making of enquiries of persons, company or credit reporting agencies (Information Sources) and the Customer hereby authorises the Information Sources to disclose to ABT Group such information concerning the Customer which is within their possession and which is requested by ABT Group.
The Customer may seek to order goods from ABT Group from time to time by providing a purchase order to ABT Group in a form and containing such information as the ABT Group may require (Order). ABT Group reserves the right to accept or reject any Order submitted by the Customer at its absolute discretion. No binding contract between the Customer and ABT Group will come into existence until ABT Group accepts the Order
7) STATUS OF PRICE LIST:
Any price list and/or quote given or made by or on behalf of ABT Group will not be construed or operate as an offer or obligation to sell but will be an invitation to treat only. The prices shown in the price list and/or quote are subject to alteration by ABT Group from time to time at its absolute discretion and without notice
In circumstances where discounts are offered by ABT Group to the Customer, discounts shall only be valid if the discounted invoice is paid in full by the Payment Date. This may only be varied by written amendment, signed by an authorised ABT Group representative
9) PARTIAL SUPPLY:
If ABT Group is unable to supply the Customer’s total Order, however is able to deliver part of the Order, these Terms and Conditions will apply to all goods supplied.
10) BACK ORDERS:
>ABT Group will advise the Customer if an Order for goods is accepted by ABT Group but cannot be supplied at that time. Back Orders of goods will be supplied to the Customer at the price and on the Terms and Conditions applying at the time the original Order is accepted by ABT Group.
11) DELIVERY AND DELIVERY CHARGES:
Any time or date named and accepted by ABT Group for delivery, dispatch, shipment or arrival of the goods is an estimate only and does not constitute a condition of the Contract. All delivery charges, including but not limited to overnight transport, air freight or other special delivery including ancillary charges or fees attached to priority delivery services will be for the account of the Customer and payable on the Payment Date or as otherwise notified by ABT Group to the Customer in writing.
>The Customer must inspect the goods immediately upon delivery and must, within 7 days from the date of receipt of the goods by the Customer or its agent, give written notice to ABT Group of any matter or thing by reason of which the Customer alleges that the goods are not in accordance with the Contract. If the Customer fails to give such notice then the goods will be deemed to have been accepted by the Customer and the Customer must pay for the goods in accordance with the provisions hereof.
>Returns may only be made if approved by ABT Group in writing prior to return. Authorised returns must be freight prepaid by the Customer. ABT Group will credit returned goods only if they are, in ABT Group’s opinion acting reasonably, in a saleable condition upon return. ABT Group reserves the right to charge a handling charge equivalent to 20% of the price of goods returned payable on the Payment Date or as otherwise notified by ABT Group to the Customer in writing. Acceptance of the returned goods by ABT Group shall not constitute any acceptance of any claim.
14) RISK AND INSURANCE:
>Goods supplied by ABT Group to the Customer will be at the Customer’s risk immediately on dispatch from ABT Group’s premises to the Customer or on entering into the custody of the Customer or its agent (whichever is the sooner) unless otherwise agreed in writing by an authorised representative of ABT Group (Possession Date). The Customer indemnifies ABT Group for any refusal of delivery or for any damage incurred to the goods during the course of delivery or collection. The Customer should insure the goods for their full insurable value from the Possession Date at their own cost against such risks as are appropriate or reimburse ABT Group for such costs incurred on their behalf.
15) PAYMENT TERMS:
>All invoices must be paid within 30 days of the date of invoice or other date as agreed in writing by an authorised officer of the ABT Group (Payment Date). Payment for the goods sold by ABT Group to the Customer must be tendered in the manner set out in the invoice on or before the Payment Date, or on or before such other date as agreed in writing (including email) between ABT Group and the Customer. The Customer must ensure that all invoices are paid to ABT Group in full without demand, deduction, abatement, counter-claim or set-off. Where a Customer makes a payment from a source outside Australia, the Customer is responsible for (without limitation) all bank and government charges, taxes, fees, withholdings and currency exchange transaction and other costs and must ensure that the full amount of the invoice is received by the ABT Group. Where the payment is received by the ABT Group by electronic transfer or cheque, the entry in the ABT Group’s bank statement will be prima facie evidence of the amount received.
16) TIMING OF PAYMENT: Payment will be deemed to have been made:
- if cash is tendered, on the date it is tendered; and
- if the payment is by way of cheque or electronic funds transfer on the date on which ABT Group receives cleared funds
17) SANCTIONS FOR LATE PAYMENT:
- If the Customer defaults in making payment to ABT Group in accordance with these Terms and Conditions ABT Group may at its absolute discretion:
- suspend or cancel any credit account or facility held by the Customer and require that all goods supplied, including any Orders accepted by ABT Group prior to the default, must be paid for on delivery;
- charge the Customer interest on the amount due from time to time at the rate of 2% per month calculated monthly from the date on which such default arose until such date all amounts and interest are paid in full;
- require the Customer to reimburse ABT Group for all costs, including legal costs, incurred by ABT Group as a consequence of ABT Group instructing its solicitor or other agent to provide advice to it in connection with each default and/or to institute such recovery or enforcement processes as will be, at the absolute discretion of the ABT Group, appropriate in the circumstances.
- Where any invoice has not been paid within the time specified and has fallen into arrears then the totality of all invoices outstanding and any credit account or facility whether or not in arrears shall become immediately due and payable
18) APPLICATION OF PAYMENTS:
- ABT Group may apply or re-apply at any time any payments tendered by the Customer to ABT Group in connection with the Contract to satisfy obligations of the Customer contemplated or secured by the Contract in any way ABT Group determines in ABT Group’s absolute discretion even if ABT Group has applied payment towards an invoice and sent a statement of account to the Customer evidencing this.
- if no determination is made by ABT Group in accordance with sub-clause (a) by ABT Group then payments will be applied as follows:-
- firstly to reimburse any collection costs incurred by ABT Group in accordance with clause 17);
- secondly in payment of any interest charged to the Customer in accordance with clause 17); and
- thirdly in satisfaction or part satisfaction of the oldest portion of any outstanding invoice(s).
- Any payment made to ABT Group and later awarded by any statutory provision or discounted, refunded or reduced by any subsequent legal proceedings shall not be deemed to discharge any liability to pay such amount.
19) USE OF THE GOODS:
>The Customer must not use the goods other than for their intended use and in accordance with the manufacturer’s instructions and without limiting any other provision of the Contract, ABT Group shall not be liable for any damage, loss or claim suffered by the Customer as a result of the Customer failing to comply with this clause.
20) RETENTION OF TITLE:
- All the goods sold by ABT Group pursuant to these Terms and Conditions remain the property of ABT Group until all debts owing by the Customer to ABT Group have been paid in full, notwithstanding that payments may be made for the purpose of the settlement of specifically designated claims.
- If payment in full is not made on the Payment Date, ABT Group shall have the right, with or without prior notice, to re-take and resume possession of any goods which remain ABT Group’s property and by its servants and agents, enter upon the Customer’s premises, or any other place where the goods may be, for that purpose if:-
- there is any breach of any Contract, any term of these Terms and Conditions or any other agreement between ABT Group and the Customer; or
- an application is commenced to wind up the Customer or the Customer is placed under official management or a receiver, or a receiver and manager, or an administrator is appointed in respect of the Customer, its undertaking or property or any part thereof, or an encumbrancer, by itself or by an agent, has taken possession of the Customer’s undertaking or property or any part thereof.
- Without limiting any other provision of these Terms and Conditions the Customer shall indemnify and keep indemnified ABT Group in respect of any claims, actions or costs that may arise against ABT Group in relation to the removal, repossession and sale of the collateral including any claims bought by third parties.
- The Customer may sell the goods in the ordinary course of business notwithstanding they have not paid ABT Group the full amount of the invoice relating to the goods (Unpaid Goods). The Customer must keep separate records in relation to the proceeds of sale of any Unpaid Goods, bank the proceeds of any such sale into a separate account and immediately remit such funds to the credit of ABT Group.
- The Customer may mix, combine, attach, affix or secure the goods to another item such as a vehicle on the following conditions:
- if it mixes or comingles the goods with other items so that the goods are no longer separately identifiable, or there has been an accession of the goods within the meaning of the PPSA, ABT Group have rights in and to the other item.
- The Customer must record the value of goods combined including sufficient identification details of the item to which the goods are combined including serial numbers for serial numbered goods within the meaning of the PPSA or affixed so as to allow registration of ABT Group’s interest in the goods on the PPSR pursuant to clause 23)
- and upon sale of any relevant goods immediately remit that amount from the proceeds of sale to ABT Group.
21) INTELLECTUAL PROPERTY:
>”Intellectual Property” means the specification and design of goods developed by ABT Group or any original or copy designs, data sheets, manuals or specifications supplied by ABT Group including but not limited to, copyright, design right, trademarks or other intellectual property, patents, database rights, rights in trademarks, designs, circuit layout, know how, trade secrets, formulae and confidential information (whether registered or unregistered), applications for registration and rights to apply for registration, of any of the foregoing rights and all other intellectual property rights or equivalent or similar forms of protection existing anywhere in the world including but not limited to those defined in Article 2 of the Convention establishing the World Intellectual Property Organisation of July 1967.
- All Intellectual Property attaching to, relating to the goods and associated items of any goods purchased or received by the Customer from ABT Group or arising from the provision of the goods by ABT Group pursuant to these Terms and Condition is the property of ABT Group which is held by the Customer on behalf of ABT Group only in accordance with these Terms and Conditions and the Customer agrees to do anything reasonably required by ABT Group to insure that this Intellectual Property vests in ABT Group.
- In dealing with ABT Group’s Intellectual Property the Customer must not:-
- disclose or furnish the Intellectual Property to any other person, firm or government and all reasonable precautions must be taken to protect such confidentiality; or
- copy, distribute, transmit, display, perform, reproduce, publish, license, modify, rewrite, allow or permit derivative works be created from, transfer or sell the Intellectual Property;
- allow copies of the Intellectual Property to be printed, published, made, reproduced or otherwise communicated without acknowledging ABT Group’s Intellectual Property; or
- directly or indirectly do anything that would or might invalidate or put in dispute ABT Group’s title to the Intellectual Property.
- If any person makes a claim alleging that the goods infringe any intellectual property rights of any person, the Customer must:
- promptly notify ABT Group;
- not make any admission or take any action in relation to a claim without ABT Group’s written consent;
- permit ABT Group control over any and all investigations, negotiations, settlements and dispute resolution proceedings relating to the claim; and
- co-operate assist and act at all times in accordance with the directions of ABT Group in relation to the claim.
- The Customer must ensure that ABT Group’s Intellectual Property is not subjected to any treatment which is prejudicial to the reputation and does not infringe the moral rights of the author.
- ABT Group’s Intellectual Property rights and the obligations of the Customer set out above shall survive the termination or completion of any Contract
- The Customer acknowledges that all pricing information and any other commercially sensitive or confidential information relating to the Intellectual Property, the goods, the business of ABT Group and the Contract is strictly confidential (Confidential Information).
- Except as stated in the Contract the Customer, pursuant to these Terms and Conditions, is under an obligation to not and must not permit any of their officers, employees, agents, contractors or related bodies corporate to disclose any Confidential Information to any person, without the prior written consent of ABT Group other than to their professional advisers or as required by law.
- The Customer acknowledges and agrees, for the purpose of section 275(6)(a) of the PPSA, that neither party may disclose any information or documents supplied by another party, including information of the kind referred to in section 275(1) of the PPSA, except in the circumstances in which disclosure is permitted pursuant to clause 22).
- This clause shall continue despite the termination or completion of any Contract or these Terms and Conditions.
- Terms used in this clause 23 have the same meaning as defined in the PPSA unless otherwise defined.
- The Customer acknowledges that the Contract and these Terms and Conditions constitute a security agreement for the purposes of section 20 of the PPSA and that the goods are collateral being described in any Order or other part of the Contract.
- The Customer acknowledges and agrees that ABT Group’s interests in the goods are interests held as security for the payment of a monetary obligation or the performance of any other obligation for the purposes of the PPSA (Security Interest) and that ABT Group is the holder of a Purchase Money Security Interest (PMSI) by virtue of these Terms and Conditions and/or the PPSA.
- The Customer consents to ABT Group effecting a registration on the PPSR (in any manner the ABT Group considers appropriate) in relation to any interest arising under or in connection with these Terms and Conditions, any Contract or otherwise arising under the PPSA and the Customer agrees to provide all assistance reasonably required by the ABT Group to facilitate such registrations.
- The Customer waives the right to receive a copy of the verification statement confirming registration of a financing statement or financing change statement relating to any registration on the PPSR.
- To the extent that Chapter 4 of the PPSA would otherwise apply to an enforcement by ABT Group of any interest provided for by these Terms and Condition or any Contract, the parties agree that the following provisions of the PPSA do not apply:-
- to the extent that section 115(1) of the PPSA allows them to be excluded: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142, and 143; and
- in addition, to the extent that section 115(7) of the PPSA allows them to be excluded: sections 127, 129(2) and (3), 132, 134(2), 135, 136(3), 136(4), 136(5) and 137.
- If section 115(1) of the PPSA does not allow section 125 of the PPSA to be excluded, the Customer agrees that at any time after any interest provided for by these Terms and Condition or any Contract has become enforceable, ABT Group may delay disposing of, or taking action to retain, the whole or part of the collateral to the extent permitted by law.
- Where ABT Group has rights in addition to those under Part 4 of the PPSA, those rights shall continue to apply.
- The Customer hereby consents to and appoints ABT Group to be an interested person and the Customer’s authorised representative for the purposes of section 275(9) PPSA.
- Subject to this clause 23 but regardless of any other terms in these Terms and Condition or any Contract, notices or documents required or permitted to be given to either party for the purposes of the PPSA must be given in accordance with the PPSA.
- The Customer agrees to notify ABT Group in writing of any change to the Customer’s details as provided in the Application, within 5 days from the date of such change.
- The Customer agrees not to register or permit to be registered, a financing statement or a financing change statement in relation to the goods in favour of a third party without the prior consent of ABT Group.
24) TECHNICAL INVESTIGATIONS:
- It is acknowledged and agreed by the Customer that, should a problem arise during or after application or installation of goods which requires technical investigation by ABT Group, the Customer must provide to ABT Group the invoice number and/or the Customer’s purchase order number relating to supply of the goods together with a description of the goods prior to any investigation being instigated.
- It is also acknowledged and agreed by the Customer that the onus is on the Customer to ensure that all goods are correctly applied, installed and maintained and that such applications are to be in accordance with ABT Group’s technical data sheets, manuals and recommendations
>The Customer hereby indemnifies ABT Group against all liability, claims, damage, loss, costs and expenses (including, without limitation, legal fee, costs and disbursements on a full indemnity basis) incurred by ABT Group as a result of a breach by the Customer of a term of the Contract or if ABT Group is unable to repossess the goods or to trace the proceeds from any dealings with the goods permitted by the Contract, for any reason.
26) EXCLUSION OF IMPLIED CONDITIONS AND WARRANTIES:
- Save as detailed below and in any warranty which may be specifically provided by ABT Group to the Customer in writing, the only conditions and warranties which are binding on ABT Group in respect of the state, quality or condition of the goods supplied by it to the Customer and/or in respect of advice, recommendation(s), information or services supplied by the employees, servants or agents to the Customer regarding the goods, their use and application are those imposed and required to be binding by statute and, to the extent permitted by law, all other conditions and warranties whether express or implied by law in respect of the state, quality or condition of the goods sold which may apart from this clause be binding on ABT Group are hereby expressly excluded and negated.
- ABT Group’s liability arising from the breach of any conditions or warranties (if any) will, at ABT Group’s option, be limited to and completely discharged in the case of the goods by either the supply by ABT Group of equivalent goods or the replacement or repair by ABT Group of the goods supplied to the Customer and in the case of advice, recommendation(s), information or services by the supplying of advice, recommendation(s), information or services again.
- Except to the extent provided in this clause (21) and subject to any applicable law, ABT Group will have no liability to any person for any loss or damage consequential or otherwise howsoever suffered or incurred by any such person in relation to the goods and/or advice, recommendation(s), information or services and without limiting the generality thereof in particular any loss or damage consequential or otherwise howsoever suffered or incurred by any such person caused by or resulting directly or indirectly from any failure, defect or deficiency of whatsoever nature or kind of or in the goods and/or advice, recommendation(s), information or services.
- Without limiting any other provision of these Terms and Conditions the ABT Group reserves the right to immediately terminate the Contract or suspend any supply of goods without incurring any liability to the Customer in any of the following circumstances:
- The Customer is overdue with any payment or otherwise in breach of these Terms and Conditions;
- The Customer enters into bankruptcy, liquidation or a composition with its creditors, has a Receiver Manager or Administrator appoint over all or any part of its assets or becomes insolvent; or
- Contractual performance is delayed or prevented due to any cause or circumstances.
- Cancellation by the ABT Group under this clause shall be without prejudice to the ABT Group right to recover payment from the Customer for goods previously supplied.
28) FORCE MAJEURE:
- If for any reason beyond the control of ABT Group including without limitation as a result of any strike, trade dispute, fire, tempest, theft or breakdown, orders cannot be filled at the time stipulated by the Customer, ABT Group shall (at its sole discretion and without prejudice to the rights of ABT Group to recover any sums owing to it in respect of goods supplied prior to the date of such determination) be entitled to, at its discretion:-
- cancel any Order for goods placed by the Customer with ABT Group;
- determine any Contract or any other agreement between ABT Group and the Customer that may have arisen by reason of the operation of these Terms and Conditions;
- determine any credit account or facility provided by ABT Group to the Customer.
- The Customer shall have no claim for damages arising out of any such cancellation and/or determination whether or not the Customer receives notice of any such cancellation and/or determination
29) TIME OF THE ESSENCE:
>In respect of the Customer’s obligations to make payment for goods supplied by ABT Group to the Customer, time shall be of the essence.
>All charges, fees, taxes, withholdings and other payments arising as a result of the sale of goods by ABT Group to the Customer are payable by the Customer either directly or upon demand by ABT Group.
>“GST” means GST within the meaning of the GST Act. “GST Act” means A New Tax System (Goods & Services Tax) Act 1999. Expressions used in this clause that are defined in the GST Act have the same meaning as given to them in the GST Act. Where required under the GST Act, GST is payable on the goods provided by ABT Group to the Customer. If GST is payable on any goods or supply made to or to be made under the arrangements between ABT Group and the Customer then the price payable for any such goods or supply will be increased by an amount equal to the amount of GST payable. The amount of GST will be separately identified on the Invoice.
32) VIENNA SALES CONVENTION:
>The United Nations Convention on Contracts for the International Sale of Goods (Vienna 1980) known as the Vienna Sales Convention does not apply to any Contract nor do any terms or conditions express or implied by the Vienna Sales Convention form part of any Contract
33) VARIATION OF TERMS:
>ABT Group reserves the right to vary all or any of these terms upon 30 days’ written notice to the Customer. Notice is deemed given three business days from when ABT Group sends notice of the amended Terms and Conditions to the address supplied by the Customer in the Application or otherwise advised in writing whether or not the Customer has received the notice. The acceptance of goods and/or services by the Customer after notice has been given is deemed to be an acceptance by the Customer of the amended Terms and Conditions. Clerical errors are subject to correction without notification.
>If any provision of these Terms and Conditions or any Contract is or at any time becomes void or unenforceable the remaining provisions will continue in full force and effect. Any void or unenforceable provision will be replaced forthwith by a lawful and enforceable provision which so far as possible achieves the same economic benefit or burden for ABT Group and the Customer as the unlawful or unenforceable provision was intended to achieve. All obligations of the Customer under these Terms and Conditions will survive the expiration or termination of these Terms and Conditions to the extent required for their full observance and performance.
35) FURTHER ASSURANCE:
>The Customer must at its expense do any further act, provide further information and execute any further documents which ABT Group may reasonably request in order to protect ABT Group’s title to any goods and rights, powers and remedies under these Terms and Conditions or any Contract including as may be required in order to perfect any security interest.
>The Customer may not assign or transfer any of its rights or obligations as outlined in these Terms and Conditions or under any Contract. ABT Group may assign its rights and obligations without the consent of the Customer
>Where the consent of ABT Group is required in accordance with these Terms and Conditions or a Contract then ABT Group may refuse its consent at its discretion and is not required to provide a reason for doing so.
38) NO WAIVER:
>No delay or omission by ABT Group to exercise any right, power or remedy available to that party in respect of a Contract will impair any such right,power or remedy nor will it be construed to be a waiver of ABT Group’s rights to take action or make a claim.
>All notices required to be given under this Contract must be in writing and sent to the address of the recipient nominated in the Contract or such other address nominated in writing.
>In the event of an inconsistency between these Terms and Conditions and the other documents forming part of the Contract the Terms and Conditions shall apply to the extent of the inconsistency unless otherwise agreed in writing.
>Nothing in these Terms and Conditions creates any relationship of employment, agency or partnership between ABT Group and the Customer