Absafe Pty Ltd ("the Supplier") supplies Equipment ("the goods") to the Customer on the basis of the following terms and conditions and the Customer's acceptance of this is evidenced by their purchase or use of the goods.
1) Payment
a) The payment falls due and payable as listed in the payment terms on the invoice.
b) The Customer agrees that interest may be charged on any overdue accounts from the day the amount became due at the rate from time to time applied by the ANZ Banking Group Limited on overdrafts in excess of $100,000 plus two percent (2%).
c) Interest on overdue accounts is without prejudice to any other rights of the Supplier under this Agreement.
d) Any costs, including legal, incurred by Absafe in recovering outstanding accounts due and payable by the Customer shall be paid in full by the Customer.
e) Pending payment in full for the goods, the Customer:
i) must not supply any of the goods to any person outside of its ordinary or usual course of business;
ii) must not allow any person to have or acquire any security interest in the goods;
iii) must insure the goods for their full insurable or replacement value (whichever is the higher) with an insurer licenced or authorised to conduct the business of insurance in the place where the Customer carries on business;
iv) must not remove, deface or obliterate any identifying plate, mark or number on the goods.
2) Title of Goods
a) The property of the Supplier in the goods remains with the Supplier until the Supplier has been paid in full for the goods under all individual contracts and terms set out in the Order or Invoice for the supply of the goods, between the Supplier and the Customer.
b) Risk in the goods shall pass to the Customer on delivery to the Customer. However, the Supplier shall not be responsible for any loss of, or damage to, the goods in transit.
c) Delivery shall occur upon physical delivery to the Customer or if installation is required upon loading at the Customer's premises. The Supplier is authorised to deliver and install goods at the address given to the Supplier by the Customer for that purpose and it is expressly agreed that the Supplier shall be taken to have delivered and installed the goods in accordance with its Contract if that Addressee obtains from any person a receipt or signed delivery docket for the goods.
d) The Customer is a bailee of the goods until such time as property in them passes to the Customer and that this bailment continues in relation to each of the goods until the price of the goods has been paid in full;
i) Despite Clause 1)e)., if the Customer supplies any of the goods to any person before all moneys payable by the Customer have been paid to the Supplier, the Customer agrees that:
ii) it holds the proceeds of resupply of the goods on trust for and as agent for the Supplier immediately when they are receivable or are received;
iii) it must either pay the amount of the proceeds of resupply to the Supplier immediately when they are received or pay those proceeds into an account with a bank or financial institution or deposit-taking institution as trustee for the Supplier;
iv) in the event that the Customer uses the goods in some manufacturing or construction process of its own or some third party, then the Customer shall hold such part of the proceeds of such manufacturing or construction process as relates to the goods in trust for the Supplier. Such parts shall be deemed to be equal in dollar terms to the amount owing by the Customer to the Supplier at the time of the receipt of such proceeds.
v) if the Customer fails to pay for the goods within the period of credit (if any) extended by the Supplier to the Customer, the Supplier may recover possession of the goods at any site owned, possessed or controlled by the Customer without liability of any kind including for trespass and the Customer agrees that the Supplier has an irrevocable licence to do so.
3) To the extent permitted by law, the Supplier does not warrant that the goods will be error free, the use of the goods shall be uninterrupted or that the goods will be fit for purpose. Any liability of the Supplier shall be in the case of goods be limited to the replacement of the goods or the supply of equivalent goods and in the case of services to the supply of the services again.
4) The Customer must notify the Supplier in writing of Products they wish to return. No goods can be returned without a completed and authorised Absafe Goods Return Authorisation form. Goods will only be credited to the Customer's account if returned in the same condition as delivered to the Customer initially and received by the Supplier within 14 days from the initial delivery. The Supplier reserves the right to apply a minimum restocking fee of 10% of the invoiced value of the product. For the avoidance of doubt, the Supplier does not replace lost or stolen equipment, or equipment that was damaged whilst being transported. IMPORTANT! Life Support/Personal Protection Equipment (PPE) may not be accepted for credit due to Public Liability Insurance restrictions.
5) Nothing in this Agreement shall exclude, restrict or modify any condition, warranty or liability which may at any time be implied by the Trade Practices Act, the Sale of Goods Act or any other law where to do so would render the above provision of this Agreement void provided that liability is limited as far as possible as provided in Clause 5. hereof.
6) This Agreement will be governed and constructed according to the laws of the State of Victoria.
7) This Agreement constitutes the entire agreement between the parties and is not transferable without the written consent of the Supplier.