1 RECITALS
1.1 Smyth Structural Steel Fabrications Pty Ltd ABN:27 114 890 292 trading as Smyth Structural Steel Fabrications Pty Ltd
Address: 8 Tannery Road DUBBO NSW 2830 P O BOX 4862 DUBBO NSW 2830.
Email: admin@smythstru ctural.com , Phone: 02 6885 3366
Smyth Structural Steel Fabrications Pty Ltd carries on the business type of Steel Fabrication and Erection by supplying Goods and Services to:
Business to Business customers
Business to Consumer
Smyth Structural Steel Fabrications Pty Ltd is a privately owned and operated company with over 18 years’ experience being supplier, fabricator and erector of quality, fabricated steel components and structures for the industrial commercial projects.
1.2 The Customer has requested and Smyth Structural Steel Fabrications Pty Ltd has agreed to enter into this Agreement for the purpose of supplying Goods and/or Services to the Purchaser in accordance with this Agreement and the Order or Quote.
1.3 Smyth Structural Steel Fabrications Pty Ltd intends to utilise the Personal Property Securities Act 2009,
1.4 DEFINITIONS
In these Terms of Trade, unless the context indicates otherwise:
ACL means the Australian Consumer Law under the Consumer and Competition Act 2010 (Cth) as amended;
Agreed Delivery Address means the address for delivery or collection of the Goods and/or Services as nominated in an Order or subsequently agreed in writing by the parties, or as specified in item 3 of the schedule;
Business Day means any day other than a Saturday, Sunday, or public holiday
Collateral means property that is subject of a security interest;
Customer means the person named in item 1 of the schedule;
Default Event means any one of the following events:
(a) the Customer fail to make any payment when due, whether for the Goods and/or Services or otherwise;
(b) Winding Up commences against the Customer;
(c) a receiver is appointed to the Customer;
(d) the Customer become insolvent, bankrupt or commit an act of bankruptcy;
(e) proceedings are commenced or an application is made for the appointment of any persons listed in items (b) to (e) above; or
(f) a mortgagee or their agent enters into possession of the Customer assets;
Disputant means a party to a Dispute;
Dispute means a dispute arising out of or related to these Terms and Conditions;
Force Majeure Event means circumstances beyond our reasonable control shall include, but not be limited to compliance with any laws, regulations, orders, acts, instructions or priority request of any government, or any department or agency, civil or military authority, acts of God, acts of the public enemy, the Customer acts or omissions, fires, floods, strikes, lockouts, embargoes, wars, labour or material shortages, riots, insurrections, defaults of our suppliers or subcontractors, delays in transportation, or loss or damage to Goods and/or Services in transit;
Grantor means the person who has the interest in property to which a security interest is attached;
GST means a tax imposed under the A New Tax System Goods and Services Tax) Act 1999;
Handling and Delivery Charges means any handling and delivery charges for Goods and/or Services that are notified to Smyth Structural Steel Fabrications Pty Ltd by the person in charge of delivery, including those relating to packaging, freight, handling, and insurance, and any credit card or other bank transaction fees;
Initial Period means the 14 day period after a notice of a Dispute is given under clause 14.2;
Material means any material in which the Customer may have Intellectual Property Rights provided by the Customer for use by Smyth Structural Steel Fabrications Pty Ltdin the production, development and supply of the Goods and/or Services to the Customer; Order means an order in writing for the purchase and supply of Goods and/or Services placed by the Customer in accordance with these Terms of Trade;
Order Confirmation means the written confirmation of Smyth Structural Steel Fabrications Pty Ltd acceptance of an Order in whole or in part, setting out the details of the Order accepted, including but not limited to the quantity of Goods and/or Services that Smyth Structural Steel Fabrications Pty Ltd will supply to the Customer, the amount due in respect of the Order (based on the fees including any discounts plus any Handling and Delivery Charges), the date by which payment must be received, the Agreed Delivery Address, and the expected delivery date for the Order;
Order Form means the order form specified by Smyth Structural Steel Fabrications Pty Ltd for use when placing an Order for an Goods and/or Services;
Goods and/or Services means a product which is the subject of an Order which has been accepted by Smyth Structural Steel Fabrications Pty Ltd;
PPSA means the Personal Property Securities Act 2009 (Cth) as amended;PMSI means a purchase money security interest as defined by section 14 of the PPSA; Payment means payment of any amount relating to Goods and/or Services in accordance with these Terms and Conditions;
Quote means a quotation by Smyth Structural Steel Fabrications Pty Ltd for the supply of particular Goods and/or Services containing details as specified in these terms and conditions;
Secured Party means a person who holds the benefit of a security interest;
Security Agreement means the security agreement set out in clause 12 (Security Interest and Title);
Tax Invoice means a tax invoice as defined in A New Tax System Goods and Services Tax) Act 1999;
Terms mean these Terms of Trade;
Smyth Structural Steel Fabrications Pty Ltd means any person or entity that places an Order with Smyth Structural Steel Fabrications Pty Ltd and agrees by conduct or by virtue of notice or otherwise to be bound by these Terms and Conditions, including any related company, related party, officer and authorised person of the relevant person; and
Winding Up means commencing to be wound up, or suffering a provisional liquidator, liquidator, official manager or any other administrator of the affairs of insolvent companies to be appointed.
2. OUTLINE & ORDERING Goods and/or Services
2.1 These terms and conditions apply to the supply of all Goods and/or Services by Smyth Structural Steel Fabrications Pty Ltd to the Customer from the date that the Customer accepts these terms and conditions.
2.2 The Customer accepts these terms and conditions when:
(a) the Customer submits an Order; or
(b) the Customer accepts delivery of, or any part of, the Goods and/or Services pursuant to an Order or otherwise; or
(c) the Customer makes a Payment, or a partial Payment, for any Goods and/or Services supplied by Smyth Structural Steel Fabrications Pty Ltd.
(d) Orders can be placed by phone order, order by email. Once an Order or Quote has been confirmed, the Customer can no longer cancel it.
(e) A purchase order is required prior to any orders being dispatched.
2.3 The Customer may request a Quote from Smyth Structural Steel Fabrications Pty Ltd relating to the potential supply of Goods and/or Services.
If the Customer accepts the Quote, the Customer must place an Order with Smyth Structural Steel Fabrications Pty Ltd within 90 days of the date of the Quote. The Customer must contact Smyth Structural Steel Fabrications Pty Ltd directly to confirm its acceptance of the Quote by sending purchase order by email.
2.4 Once the quote is confirmed and the order placed Smyth Structural Steel Fabrications Pty Ltd will process within allow up to 4 weeks.
2.5 If the Goods and/or Services are above a threshold Purchase Price, as directed by Smyth Structural Steel Fabrications Pty Ltd in its sole discretion from time to time, and the Customer accepts the Quote, Smyth Structural Steel Fabrications Pty Ltd will email a confirmation of the Order to the Customer and may from time to time include a direction to pay a deposit of 50%. A new purchase order may be required. Delivery of the Goods and/or Services will not commence until payment of any such deposit required.
2.6 Variations to the quote either by Smyth Structural Steel Fabrications Pty Ltd or by the Customer must follow this procedure; Smyth Structural Steel Fabrications Pty Ltd will send a revised quotation, the customer must stipulate the new quotation number on the purchase order.
2.7 Changes to the cost of materials, labour or unforeseen circumstances: Smyth Structural Steel Fabrications Pty Ltd will notify the customer, the customer must stipulate the new quotation number on the purchase order.
2.8 Unless otherwise agreed by Smyth Structural Steel Fabrications Pty Ltd in writing, Smyth Structural Steel Fabrications Pty Ltd will not be bound by any conditions added by the Customer in an Order (express or implied).
2.9 All Orders must indicate the following:
(a) the Goods and/or Services being ordered by product number, if available;
(b) the quantity of Goods and/or Services being ordered; and
(c) the Agreed Delivery Address for the Goods and/or Services.
2.10 Following the receipt of an Order from the Customer, Smyth Structural Steel Fabrications Pty Ltd will process the order and notify the Customer in writing through an Order Confirmation or an order rejection notice of its:
(a) acceptance or rejection of the Order in its entirety; or
(b) acceptance of the Order in part; or
(c) acceptance of the Order subject to specified conditions.
2.11 Any variation of an Order or cancellation of an Order must be agreed to in writing by Smyth Structural Steel Fabrications Pty Ltd.
2.12 Prices for freight, postage or delivery fees will be confirmed in the quote and will be indicated on the Invoice.
3. PRICE
3.1 Unless otherwise agreed to in writing by Smyth Structural Steel Fabrications Pty Ltd or by Smyth Structural Steel Fabrications Pty Ltd authorised representative, subject to this clause 3, the price charged and payable for the Goods and/or Services shall be the price in Local Currency at the date Smyth Structural Steel Fabrications Pty Ltd accepts the Order, together with any applicable taxes, charges and delivery costs in relation to the Goods and/or Services.
3.2 Prices contained in any Quote or Order for the supply of Goods and/or Services are based on the cost prevailing and the specification supplied at the time of the Quote or Order. Smyth Structural Steel Fabrications Pty Ltd reserves the right to vary the price if:
(a) there is any movement in the cost of supplying the Goods and/or Services specified in the Order; or
(b) if the Goods and/or Services specified in the Order are varied from the Goods and/or Services specified in the Quote, and Smyth Structural Steel Fabrications Pty Ltd provides the Customer with reasonable notice of any such variation of price.
(c) The Order or Quote is not deemed accepted until the price is confirmed in writing or email by Smyth Structural Steel Fabrications Pty Ltd
(d) Prices are Inclusive of GST
4. PAYMENT OF ORDERS
4.1 Where Smyth Structural Steel Fabrications Pty Ltd accepts an Order in accordance with clause 2, it will issue the Customer an Order Confirmation.
4.2 Acceptance of an Order Confirmation by a Customer will constitute acceptance of the Price set out in the Order Confirmation unless otherwise agreed in writing by the parties.
4.3 The Customer must pay GST and any other taxes, duties and government charges imposed or levied on the goods in connection with any Order or these terms and conditions. Unless otherwise indicated, the price and all other consideration for any supply made under any Order is Inclusive of GST imposed on the supply.
4.4 The Customer’s liability to pay for the Goods and/or Services will not be offset, reduced or affected in any way as a result of any returns of, or credits or rebates relating to, the Goods and/or Services, unless otherwise agreed in writing by Jasmat Steel Fabrications; or 4.5 Payments must be made according to the methods selected by Jasmat Steel Fabrications, specified in item 5 of the schedule. The Customer may select from one of the following methods of payment:
(a) Payments to be received in full upon making an Order; or
(b) Goods and/or Services to be delivered on credit to the Customer; or
(c) Payment of a 50% deposit upon making an Order and payment of the remainder upon delivery of the Goods and/or Services.
4.6 If Goods and/or Services are delivered to the Customer on credit, the following conditions apply:
(a) The person named in item 2 of the schedule, guarantees to Smyth Structural Steel Fabrications Pty Ltd the due and punctual payment by the Customer of its any amounts due to Smyth Structural Steel Fabrications Pty Ltd under these Terms;
(b) The Customer must sign the Financing Statement annexed to these Terms; and
(c) The Customer must pay a tax invoice provided by Smyth Structural Steel Fabrications Pty Ltd within 30 days of the date of issue.
4.7 Smyth Structural Steel Fabrications Pty Ltd reserves the right to revoke at any time any credit extended to the Customer because of the Customer’s failure to make any Payment when due or for any other reason.
4.8 The Customer may pay for Goods and/or Services in full by;
(a) Direct Deposit
(b) Business or Company Cheque
(c) Cash on Delivery
4.9 If the Customer fails to make a Payment when it is due, Smyth Structural Steel Fabrications Pty Ltd shall, in addition to all other rights and remedies available under these Terms and Conditions at law or in equity, be entitled to charge Default Interest at the rate of Nil per annum plus the interest rate set by the Reserve Bank of Australia.
4.10 Smyth Structural Steel Fabrications Pty Ltd reserves the right to pass any debts incurred under this Supply Agreement to a Debt Collection Agency and refer the Customer’s details to credit reporting agencies if the Customer’s account remains outstanding for more than three (3) months. In addition to any outstanding amounts, the Customer agrees to indemnify Smyth Structural Steel Fabrications Pty Ltd for all legal costs (on a solicitor and client or full indemnity basis, whichever is greater) and other expenses incurred by Smyth Structural Steel Fabrications Pty Ltd in connection with a demand, action, or other proceeding (including mediation, out of court settlement or any action taken for recovery of the debts from the Customer) arising out of a breach of the terms of this Agreement, including the failure by the Customer to pay an amount by the due date.
4.11 Default Interest pursuant to clause 4.9 shall be:
(a) payable on demand; and
(b) calculated daily from the date the Payment was due to the actual date that the Payment is made in full.
4.12 Any Payment the Customer makes to Smyth Structural Steel Fabrications Pty Ltd shall first be credited against any Default Interest accrued pursuant to this clause 4 to the actual date of Payment.
4.13 If as a consequence of an instruction from the Customer, Smyth Structural Steel Fabrications Pty Ltd delays or suspends (but not cancels) an Order or any part of an Order for a period of 3 days or more, Smyth Structural Steel Fabrications Pty Ltd may:
(a) request the Payment in full for all work in progress relating to the relevant Order at the time of suspension; and/or
(b) vary the Price for the uncompleted portion of the relevant Order.
(c) in the event of a default in payment Smyth Structural Steel Fabrications Pty Ltd
reserves the right to suspend or terminate supply to the customer and List customer with a credit reporting agency. Smyth Structural Steel Fabrications Pty Ltd
utilise's Creditor Watch to report defaults on payments.
4.14 The Customer may not cancel an Order, or any part of it, without our written consent, which may be withheld in Smyth Structural Steel Fabrications Pty Ltd absolute discretion. 4.15 Without prejudice to Smyth Structural Steel Fabrications Pty Ltd right to refuse consent for the Customer to cancel an Order under clause 4.13.
4.16 Smyth Structural Steel Fabrications Pty Ltd may in writing cancel an Order or delivery of an Order without liability to the Customer (save as required by relevant laws) if:
(a) Smyth Structural Steel Fabrications Pty Ltd reasonably forms the opinion that the Customer is insolvent or at material risk of insolvency;
(b) the Customer fails to pay any amount for the Goods and/or Services on the due date; or (c) Smyth Structural Steel Fabrications Pty Ltd reasonably forms the opinion that supplying Goods and/or Services to the Customer may have a negative impact upon Smyth Structural Steel Fabrications Pty Ltd business or commercial reputation or image.
5. DELIVERY
5.1 The Customer shall pay all Handling and Delivery Charges associated with the Goods and/or Services. Goods are to be picked up at the seller's address by the buyer or their nominated carrier or Goods will be delivered to the buyer by the seller or the seller's nominated carrier
5.2 If the Customer has nominated an Agreed Delivery Address for the Goods and/or Services, Smyth Structural Steel Fabrications Pty Ltd shall deliver, by Smyth Structural Steel Fabrications Pty Ltd nominated carrier or otherwise, the Goods and/or Services to the Agreed Delivery Address, subject to the following conditions:
(a) The Customer or its duly authorised representative shall be present at the Agreed Delivery Address for delivery. If not present, Smyth Structural Steel Fabrications Pty ltd, its duly authorised representative, or the person in charge of delivery may unload the Goods and/or Services at the place and in which case, it shall not be responsible for any claims, costs or losses arising from such a situation.
(b) If a delivery date is nominated, Smyth Structural Steel Fabrications Pty Ltd shall take reasonable steps to dispatch the Goods and/or Services on or about that date.
However, Smyth Structural Steel Fabrications Pty Ltd does not make any warranty or promises that the Goods and/or Services will be available on that date. In the event that Smyth Structural Steel Fabrications Pty Ltd is unable to deliver the goods on that date, Smyth Structural Steel Fabrications Pty Ltd will not be liable for any loss, including any consequential loss, for failure or delay in delivery due to any cause whatsoever.
5.3 Smyth Structural Steel Fabrications Pty Ltd reserves the right to make deliveries in instalments and these Terms and Conditions shall be severable as to such instalments. Delivery; Once an Order is confirmed, the Customer must allow up to 4 weeks for manufacturing, then 2 to 4 days for delivery, Transit times are provided by the carrier selected for the Order for Products and excludes weekends and holidays. If the Goods and/or Services are defective, then the Customer must notify Smyth Structural Steel Fabrications Pty Ltd in writing within 7 days of the Delivery. If notice is received within this timeframe, Smyth Structural Steel Fabrications Pty Ltd may either replace or repair, or pay the cost of repair, or replacing the defective Goods and/or Services at its own cost. The Customer must return the defective Goods and/or Services to Smyth Structural Steel Fabrications Pty Ltd and Smyth Structural Steel Fabrications Pty Ltd will affect the refund or replacement as soon as possible upon the receipt and inspection of the returned Goods and/or Services. The Customer is responsible for all associated costs in returning the defective Goods and/or Services. Smyth Structural Steel Fabrications Pty Ltd is not liable for returning any Goods and/or Services lost in transit.
6. TRANSFER OF TITLE AND RISK (IF PROVIDING GOODS)
6.1 This clause 6 only applies when the Terms relate to the provision of Goods only or Goods as well as Services.
6.2 Smyth Structural Steel Fabrications Pty Ltd retains title to the Goods and/or Services until delivery to the Agreed Delivery Address or collection of the Goods and/or Services by the Customer or its duly authorised representative from the Agreed Delivery Address, whichever is the earlier, at which time, provided that payment for the Goods and/or Services is received by Smyth Structural Steel Fabrications Pty Ltd within the agreed timeframe for payment, title to the Goods and/or Services will be transferred to the Customer.
6.3 The Customer accepts the risk of loss or damage to the Goods and/or Services and such risk in the Goods and/or Services is passed to the Customer from the time that the Goods and/or Services are placed onto Smyth Structural Steel Fabrications Pty Ltd nominated form of transport for delivery to the Customer and will indemnify Smyth Structural Steel Fabrications Pty Ltd for any such loss or damage between the time of delivery or collection of the Goods and/or Services and the time at which title to the Goods and/or Services is transferred to the Customer.
6.4 The Customer will ensure that it has appropriate insurance coverage to compensate Smyth Structural Steel Fabrications Pty Ltd under clause 6.3 in the event of loss or damage to the Goods and/or Services unless otherwise agreed in writing by Smyth Structural Steel Fabrications Pty Ltd.
6.5 Smyth Structural Steel Fabrications Pty Ltd will not otherwise be liable in any manner whatsoever for any costs incurred or losses suffered (including but not limited to loss of business profits, business interruption and loss of opportunity) arising directly or indirectly from lost deliveries of Goods and/or Services.
7. LIMITED PRODUCT WARRANTY (IF PROVIDING GOODS)
7.1 This clause 7 only applies when the Terms relate to the provision of Goods only or Goods as well as Services.
7.2 This clause 7 is subject to clause 9 (Exclusions and Limitations), clause 10 (Statutory Rights) and any other statutory or legal right whether under these Terms and Conditions or otherwise.
7.3 The Customer may only return the Goods and/or Services if:
(a) they do not materially comply with the Order; or
(b) if permitted by law, including the ACL. 7.4 If the Customer wish to return any Goods and/or Services delivered to the Customer, the Customer must give to Smyth Structural Steel Fabrications Pty Ltd:
(a) notice within a reasonable time of the Customer receipt of the Goods and/or Services; and
(b) the original Invoice details.
7.5 If Smyth Structural Steel Fabrications Pty Ltd accepts the return of Goods and/or Services from the Customer, Smyth Structural Steel Fabrications Pty Ltd will at our option either:
(a) replace the returned Goods and/or Services; or
(b) give a credit or a refund for such Goods and/or Services.
7.5 Costs relating to the return of Goods and/or Services under this clause 7 are payable:
(a) if the defect is due to Smyth Structural Steel Fabrications Pty Ltd, by Smyth Structural Steel Fabrications Pty Ltd and to be transported by our nominated carrier; or
(b) otherwise, by the Customer.
7.6 The Customer shall bear any expense of transportation of Goods and/or Services returned to Smyth Structural Steel Fabrications Pty Ltd, unless the Customer have a statutory or other legal right that permits otherwise.
7.7 The Customer may not withhold any Payment due to Smyth Structural Steel Fabrications Pty Ltd in respect of any other Goods and/or Services pending the resolution of a claim for a defect.
7.8 Smyth Structural Steel Fabrications Pty Ltd will not accept notifications under clause 7.3 in the event of the Customer non-payment of an account.
7.9 If the Goods and/or Services are damaged in the course of being delivered to the Customer:
(a) the Customer must notify Smyth Structural Steel Fabrications Pty Ltd of any claim for Goods and/or Services damaged in transit within a reasonable time of delivery; and
(b) subject to our acceptance of the Customer claim under this clause 7, Smyth Structural Steel Fabrications Pty Ltd will replace the relevant Goods and/or Services.
8. EXPRESS WARRANTY
8.1 The warranty against defects (Warranty) contained in this clause 8 is provided by:
** The external manufacturer or supplier of products.
** Internally manufactured products supplied are covered for warranty by Smyth Structural Steel Fabrications Pty Ltd
8.2 Smyth Structural Steel Fabrications Pty Ltd warrants that the Goods and/or Services are supplied free from defects in material and workmanship except such defects as normally being regarded as being commercially acceptable.
8.3 The Goods and/or Services shall be covered by this Warranty for a period of 1 month from the date of delivery unless otherwise stated in writing.
8.4 The Customer may make a claim under this Warranty by providing Smyth Structural Steel Fabrications Pty Ltd notice in writing to our address specified in clause 8.1 containing a reasonable description of the defect in the Good(s).
8.5 Smyth Structural Steel Fabrications Pty Ltd will during the Warranty period and subject to clause 8.6, repair or replace at our option, any component or part of the Goods and/or Services which our examination shows to be defective.
8.6 Our obligations under this Warranty are limited to repairing or furnishing a replacement part to replace any part which has proven to have been defective.
8.7 The Customer will be liable for all transport charges incurred in returning defective components or parts for repair or replacement together with the cost of returning them to the Customer. An invoice for such transport charges will be provided upon returning the relevant Good(s) to the Customer which will be payable in accordance with these Terms and Conditions.
8.8 A replacement part supplied by Smyth Structural Steel Fabrications Pty Ltd during the warranty period shall be covered by the warranty for the unexpired portion of the warranty period which covered the original Goods and/or Services.
8.9 The benefits to the Customer given by this Warranty are in addition to the Customer other rights and remedies under the ACL or the relevant laws.
8.10 This Warranty against is provided in addition to other rights and remedies the Customer may have at law. Smyth Structural Steel Fabrications Pty Ltd goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer are entitled to a replacement or refund for a major failure and for compensation for any reasonably foreseeable loss or damage. The Customer are 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.
9. EXCLUSIONS AND LIMITATIONS
9.1 The exclusions and limitations in this clause 9 are subject to clause 10 (Statutory Rights).
9.2 All express or implied representations, conditions, statutory guarantees, warranties and provisions (whether based on statute, common law or otherwise), relating to these Terms and Conditions, that are not contained in it, are excluded to the fullest extent permitted by law.
9.3 Any liability arising in relation to Goods and/or Services the subject of the Order or Smyth Structural Steel Fabrications Pty Ltd supply to the Customer, arising and whether for consequential loss or otherwise, including any liability arising by virtue of any representation or warranty, whether express or implied by law, is hereby excluded to the fullest extent permitted by law.
9.4 No warranty is given and Smyth Structural Steel Fabrications Pty Ltd will not be liable for:
(a) alterations to Goods and/or Services for which Smyth Structural Steel Fabrications Pty Ltd is not responsible;
(b) damage or failure caused by unusual or non-recommended use or application of the Goods and/or Services; or
(c) loss caused by any factors beyond our control.
9.5 Smyth Structural Steel Fabrications Pty Ltd will not be liable for any special, indirect, consequential or economic loss or damage or loss of profits (in contract or tort or arising from any other cause of action) suffered by the Customer or any other person resulting from any act or omission by Smyth Structural Steel Fabrications Pty Ltd (including breach, termination or non-observance of the terms of an Order or agreement which incorporates these Terms and Conditions)
9.6 Smyth Structural Steel Fabrications Pty Ltd’s total liability for breach of these Terms and Conditions or breach of Smyth Structural Steel Fabrications Pty Ltd ‘s contractual obligations or duties at law or in equity (howsoever arising) is limited at the option of Smyth Structural Steel Fabrications Pty Ltd to:
(a) the replacement of the Goods and/or Services or the supply of equivalent Goods and/or Services;
(b) the repair or rectification of the Goods and/or Services;
(c) the payment of the cost of replacing the Goods and/or Services; or
(d) the payment of the cost of the repair or rectification of the Goods and/or Services.
9.7 If Smyth Structural Steel Fabrications Pty Ltd obtains goods or services from a third party in order to carry out the Customer’s instructions or complete an Order:
(a) Smyth Structural Steel Fabrications Pty Ltd will not be liable for any breach of these Terms and Conditions if that breach is as a result or is connected with the supply by a third party of such goods or services;
(b) Smyth Structural Steel Fabrications Pty Ltd acquire such goods or services as agent for the Customer not as principal and will have no liability to the Customer in relation to the supply of these goods or services;
(c) any claim by the Customer in relation to the supply of such goods or services must be made directly against that third party; and
(d) the Customer must pay for such goods or services and Smyth Structural Steel Fabrications Pty Ltd will give the Customer notice of any such third party charges as applicable.
10.1 ACL rights: In circumstances where the Customer is acquiring Goods and/or Services from Smyth Structural Steel Fabrications Pty Ltd as a ‘consumer’ for the purposes of (and as defined in section 3 of Schedule 2 of) the ACL, Smyth Structural Steel Fabrications Pty Ltd acknowledges and agrees that certain statutory guarantees and rights shall apply to the Customer as provided by relevant laws but subject to these Terms and Conditions as applicable and where permitted by relevant laws.
10.2 No restriction: Nothing in these Terms and Conditions excludes, restricts or modifies any condition, warranty, statutory guarantee, right or remedy implied or imposed by common law, statute or regulation which cannot be lawfully excluded, restricted or modified, which may include the ACL and corresponding provisions and relevant laws of State or Territory legislation containing implied terms and/or statutory guarantees which operate to protect the Customers of goods and services in various circumstances.
10.3 Unfair contract: If section 23 of the ACL applies to any provisions in these Terms and Conditions, any such provision(s) shall be void to the extent it is unfair within the meaning of section 24 of the ACL.
11. SECURITY INTEREST AND TITLE (IF PROVIDING GOODS)
11.1 This clause 11 only applies when the Terms relate to the provision of Goods only or Goods as well as Services.
11.2 This clause 11 sets out the Security Agreement between Smyth Structural Steel Fabrications Pty Ltd and the Customer.
11.3 The Customer (Grantor) grant to Smyth Structural Steel Fabrications Pty Ltd (Secured Party) a Purchase Money Security Interest (PMSI) in the Goods and/or Services (Collateral) as security for all or part of the Payment for the Goods and/or Services.
11.4 Our security interest attaches to the Collateral by virtue of the Customer’s possession of the Goods and/or Services as bailee under clause 11.7.
11.5 Smyth Structural Steel Fabrications Pty Ltd may, without notice, apply to register a financing statement with respect to the PMSI described in this clause 11.3.
11.6 Until full title in the Goods and/or Services has passed to the Customer, the Customer will ensure that the Goods and/or Services are identifiable and distinguishable:
(a) from any other goods that may be in the Customer’s possession; and
(b) as to each particular Invoice of Goods and/or Services.
11.7 Smyth Structural Steel Fabrications Pty Ltd will retain absolute title over the Goods and/or Services until:
(a) Smyth Structural Steel Fabrications Pty Ltd has received Payment in full in respect of the Goods and/or Services;
(b) Smyth Structural Steel Fabrications Pty Ltd registers a financing statement as described in clause 11.4; or
(c) the Customer sells the Goods and/or Services in the manner prescribed under clause 11.10.
11.8 After delivery of the Goods and/or Services, until the full Payment has been made the Customer shall possess the Goods and/or Services as bailee only.
11.9 Until Payment in full for the Goods and/or Services has been received by Smyth Structural Steel Fabrications Pty Ltd, Smyth Structural Steel Fabrications Pty Ltd may, without notice, seize the Goods and/or Services if:
(a) a Default Event occurs; or
(b) the Customer is in breach of these Terms and Conditions.
11.10 For the purposes of carrying out seizure under clause 11.8, Smyth Structural Steel Fabrications Pty Ltd may without notice, enter the Customer’s premises and seek any or all remedies provided under Chapter 4 of the PPSA and any other remedies provided at law or in equity or otherwise.
11.11 The Customer may only sell all or any of the Goods and/or Services in respect of which full Payment has not been received to a third party if:
(a) Smyth Structural Steel Fabrications Pty Ltd have not exercised our right to seize the Goods and/or Services under clause 11.8;
(b) the sale is a bona fide transaction at market value in the ordinary course of business; and (c) all proceeds of sale of those Goods and/or Services is:
(i) immediately paid to Smyth Structural Steel Fabrications Pty Ltd; or
(ii) held on trust for Smyth Structural Steel Fabrications Pty Ltd in a separate account, payable immediately on demand.
11.12 Notice requirements under sections 95, 118, 121, 130, 132 and 135 of the PPSA shall not apply and not place any obligations on Smyth Structural Steel Fabrications Pty Ltd in the Customer favour
11.13 The Customer agree to waive the Customer’s right to receive from Smyth Structural Steel Fabrications Pty Ltd a copy of any financing statement, financing change statement or verification statement that is registered, issued or received at any time in relation to these Terms and Conditions and this Security Agreement.
11.14 The Customer shall immediately notify Smyth Structural Steel Fabrications Pty Ltd in writing of any change of name.
11.15 The Customer acknowledge receipt of a copy or due notice of these Terms and Conditions and this Security Agreement.
12. INTELLECTUAL PROPERTY
12.1 If the Customer provides Smyth Structural Steel Fabrications Pty Ltd with Material to be used in the supply of the Goods and/or Services:
(a) the Customer warrants and represents to Smyth Structural Steel Fabrications Pty Ltd that any Goods and/or Services supplied to the Customer based on the Material the Customer provide to Smyth Structural Steel Fabrications Pty Ltd will not infringe the Intellectual Property Rights of any third party; and
(b) the Customer indemnifies and will keep the indemnified from and against any and all claims, liabilities, obligations, expenses or damages which Smyth Structural Steel Fabrications Pty Ltd may suffer or incur as a result or in connection with the representation or warranty in clause 12.1(a) being untrue or breached.
12.2 The Customer grants to Smyth Structural Steel Fabrications Pty Ltd a non-exclusive royalty free license throughout the universe to use all Intellectual Property Rights in all Materials for so long as necessary or convenient for the production of the Goods and/or Services and the matters contemplated in relation to the delivery of the relevant Goods and/or Services.
12.3 All Intellectual Property Rights in and relating to the production, development and supply of the Goods and/or Services (excluding Materials licensed to Smyth Structural Steel Fabrications Pty Ltd pursuant to clause 12.2) will remain Smyth Structural Steel Fabrications Pty Ltd property and will not be disclosed to any other person by the Customer without our prior written consent.
12.4 The Customer shall keep confidential and shall not use any confidential information communicated by Smyth Structural Steel Fabrications Pty Ltd to the Customer without our prior written consent.
12.5 The Service Provider is the exclusive owner of all of the Service Provider’s Intellectual Property in the Products and Services, including any Intellectual Property provided in conjunction with a Quote, e.g. designs.
13. GST
13.1 Unless otherwise agreed, prices with respect to any taxable supply are exclusive of GST.
13.2 The Customer must pay to Smyth Structural Steel Fabrications Pty Ltd all GST in addition to any other amounts payable by the Customer to Smyth Structural Steel Fabrications Pty Ltd, which will be payable by the Customer when required to pay for the Goods and/or Services.
13.3 Smyth Structural Steel Fabrications Pty Ltd will issue a tax invoice for any taxable supply to the Customer, which will enable the Customer, if permitted by the GST Law, to claim a credit for GST paid by the Customer.
13.4 If GST is payable for a taxable supply by a third party, Smyth Structural Steel Fabrications Pty Ltd will request that party to provide the Customer with a tax invoice.
13.5 Prices for imported goods are to be converted into Australian dollars based on the Reserve Bank Exchange Rate on the date that such goods are ordered.
14. DISPUTE RESOLUTION
14.1 A party must not start court proceedings in respect of a Dispute unless it has complied with this clause 14.
14.2 A party claiming that a Dispute has arisen must notify each other party to the Dispute giving details of the Dispute.
14.3 During the Initial Period after a notice is given under clause 14.2 each Disputant must authorise a representative to use their best efforts to resolve the Dispute.
14.4 If, in relation to a Dispute, a Disputant breaches any provision of clauses 14.1 to 14.3, each other Disputant need not comply with clauses 14.1 to 14.3 in relation to that Dispute.
15. RELATIONSHIP
15.1 The Parties acknowledge that they are not in partnership, there is no joint venture between them or franchise arrangement, and that the only relationship between them is that of Customer (in the case of the Customer) and as service provider (in the case of Smyth Structural Steel Fabrications Pty Ltd) in respect of the Services on the terms in this Agreement. Neither Party may claim or hold itself out as having any other relationship, authority, right or entitlement to represent or act as agent of the other or to have any interest or shareholding in the other.
15.2 It is expressly agreed that nothing in this Agreement will give rise to any fiduciary relationship between the Customer and Smyth Structural Steel Fabrications Pty Ltd and neither Party owes any fiduciary duty to the other in respect of its conduct.
16. GENERAL
16.1 Variations This Agreement may only be varied in writing signed by both the Parties. 16.2 Waiver
16.3 Notices
16.4 Confidentiality of Agreement All terms of this Agreement shall be kept strictly confidential as between the Parties. None of the Parties to this Agreement shall disclose any terms or information relating to, received, or developed in the course of this Agreement relating to the Agreement or the business of either Party without prior written consent of the other party.
16.5 Force Majeure Except for obligations to make payment, delay or non-performance by any Party will be excused if such delay or nonperformance is due to an event or events outside the Party’s reasonable control, including but not limited to:
16.6 Severability If any clause of this Agreement is invalid under any applicable such Law, the clause will be limited, narrowed, construed or altered as necessary to render it valid, but only to the extent necessary to achieve such validity. If necessary the invalid clause will be deleted from the Agreement and the remaining clauses will remain in full force and effect.
16.7 Counterparts This Agreement may be executed in counterparts, each of which will be deemed to be an original and all of which together will constitute one instrument and Agreement.
16.8 Entire Agreement
16.9 Governing Law and Jurisdiction It is agreed by the Parties that this Agreement is to be construed in accordance with the Laws of Australia and each Party covenants that it submits to the jurisdiction of the Courts of the State or Territory in which the Territory is located for the resolution of any dispute under the Agreement. If the Territory is the whole of Australia then the Parties submit to the jurisdiction of all State and Territory Courts and Federal Courts.