Terms and Conditions
ARMACELL AUSTRALIA PTY. LTD.
ABN 32 089 316 638
(a) These terms and conditions except as otherwise agreed in writing by Armacell and the purchaser shall apply notwithstanding any provisions to the contrary which appear on any order form or other documents issued by the purchaser or any other person.
(b) These terms and conditions, each purchase order accepted by Armacell in accordance with these terms and conditions (the acceptance of which shall always be subject to clauses 2 and 14 of these terms and conditions which shall prevail over such purchase order in the manner set out in those clauses) and the price lists and delivery fees applicable to the purchaser most recently advised to the purchaser by Armacell together comprise and evidence the agreement between Armacell and the purchaser.
The price of the goods and services payable by the purchaser shall (regardless of any price which may be set out in the purchaser’s purchase order) be in accordance with the price list applicable to the purchaser most recently advised to the purchaser by Armacell or, where Armacell has provided a specific quote in respect of the supply of particular goods and/or services, the quoted price. Any prices set out in the purchaser’s purchase order which are different to those provided for by the first sentence of this clause shall not apply and shall be of no effect notwithstanding any fulfilment by Armacell of such purchase order by the provision of goods and/or services to the purchaser of the quantities or kinds set out in the purchase order. The purchaser agrees that any purchase order submitted by it containing prices not in accordance with the first sentence of this clause shall operate as an order to purchase at prices which are in such accordance and may be accepted and fulfilled by Armacell on that basis without further communication to the purchaser and the purchaser shall be liable accordingly. Unless otherwise expressly stated all prices are exclusive of GST. Armacell may, by notice to the purchaser, vary its prices.
3. PURCHASE ORDER
(a) The purchaser must order goods and services from Armacell in writing in a form approved by Armacell and without limiting the matters which a purchase order can address it must specify:
- the date of the placement of the purchase order;
- the quantity and description of the goods and/or services ordered;
- a preferred delivery date for the goods and/or services;
- the exact delivery location for the goods;
- any additional provisions (if any).
(b) Armacell may accept any purchase order received from the purchaser (including where the purchase order does not comply with clause 3(a) above) either by notice to the purchaser within 5 business days of receipt of the purchase order by Armacell or by proceeding to fulfil the order. Any purchase order that is not accepted as set out above shall not create or impose any contractual or other obligations on Armacell. The purchaser agrees that clauses 2 and 14 of these terms and conditions shall prevail over any purchase order in the manner set out in those clauses and that Armacell may accept and fulfil any purchase order on the basis of the prices and delivery fee provided for by those clauses (in place of any contrary prices or delivery fees set out in the purchase order) without further communication to the purchaser and the purchaser shall be liable accordingly.
(a) Should any Taxes be imposed or otherwise levied on, or in respect of, or in relation to, the supply of any goods and/or services pursuant to this agreement then these will be to the account of the purchaser. The purchaser shall be responsible for the payment of those Taxes and will immediately provide Armacell with documentary evidence of payment if payment is made by the purchaser on Armacell’s behalf.
(b) Except where expressly stated otherwise, all amounts referred to in this agreement and any purchase orders or other documents relating to the provision of goods and/or services pursuant to this agreement are exclusive of all Taxes. Where Armacell makes a supply of goods and/or services under or in relation to this agreement then Armacell is entitled to increase the amount payable for the supply by the amount of any applicable Tax.
(c) If a legislative requirement requires the purchaser to deduct an amount in respect of withholding tax (however it may be described in such legislation) from any payment under this agreement such that Armacell will not actually receive on the due date the full amount provided for under this agreement (or any applicable purchase order or other documents relating to the provision of goods and/or services pursuant to this agreement) then on the due date:
- the purchaser must deduct the amount for the withholding tax;
- the purchaser must pay an amount equal to that amount deducted to the relevant authority in accordance with applicable law and give the original receipt to Armacell; and
- the purchaser must pay Armacell an amount equal to the difference between the payment and the amount deducted.
(d) Taxes means any and all present and future sales, use, personal, property, real property, valued added, goods and services, turnover, stamp, documentary, transaction, interest equalisation, business, occupation, excise, profits, income, gross receipts, corporations, gains, or other fees, withholdings, imposts, levies, duties or other charges of any nature at all or whenever imposed (other than taxes on Armacell’s net income) by any government, semi-government or other relevant authority anywhere in the world together with any penalties, fines or interest payable thereon.
(a) Payment must be made by the purchaser to Armacell without set off or deduction by the end of the month which immediately follows the month in which Armacell issues a tax invoice which complies with the GST Law (e.g. payment is to be made by 30 June for a tax invoice issued on 15 May) or within such other period of time as is agreed in writing between the parties,but Armacell reserves the right to vary the terms of payment and to require payment in cash in full prior to delivery if, at any time, the credit worthiness of the purchaser is, in Armacell’s opinion, unsatisfactory. If the purchaser has not paid for the goods and/or services within the time stipulated above this shall constitute a breach by the purchaser of an essential term of this agreement.
(b) GST Law has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth) and includes all regulations and associated legislation (including without limitation the Taxation Administration Act 1953 (Cth)) and delegated legislation.
6. CLAIMS FOR WRONGFUL DELIVERY
Any claim by the purchaser for short or wrongful delivery of goods must be notified to Armacell in writing within 14 days of delivery of the goods. Any claim which the purchaser does not notify within that time (time being of the essence) will be taken to have been absolutely waived.
7. NO CANCELLATION
All orders of goods and/or services are firm and non-cancellable.
Any description of the goods is given by way of identification only and the use of that description does not constitute a sale by description.
9. SALE BY SAMPLE
The purchaser acknowledges that no sale made under these terms constitutes a sale by sample. Samples may vary from actual production.
Products not listed in the price list applicable to the purchaser most recently advised to the purchaser by Armacell are deemed to be "specials" and may be offered subject to confirmation by Armacell. Armacell reserves the right to overship specials up to 5%.
11. IMPLIED TERMS
All conditions and warranties expressed or implied by statute, the common law, equity, trade, custom or usage or otherwise are expressly excluded to the maximum extent permitted by law.
If the goods or services supplied by Armacell are other than of a kind ordinarily acquired for personal, domestic or household use or consumption and if Armacell is liable for a failure to comply with a guarantee contained in Division 1 of Part 3-2 of the Australian Consumer Law (“ACL”) (other than a guarantee under section 51, 52 or 53 of the ACL), then its liability for such failure will, to the extent permitted by law, be limited to one of the following at Armacell’s election:
(a) in the case of the goods:
- the replacement of the goods or the supply of equivalent goods;
- the repair of the goods;
- the payment of the cost of replacing the goods or of acquiring equivalent goods; or
- the payment of the cost of having the goods repaired.
(b) in the case of services:
- the supplying of the services again; or
- the payment of the cost of having the services supplied again.
For the avoidance of any doubt, no provision of these terms and conditions shall have effect as, or be taken to be, a term referred to in section 276A(4) of the ACL imposing on Armacell a liability greater than that mentioned in section 276A(1) of the ACL in circumstances where section 276A(1) of the ACL operates to limit Armacell’s liability under section 274 of the ACL.
The purchaser agrees to release, hold harmless and indemnify Armacell to the maximum extent permitted by law from and against any liability whatsoever and howsoever arising (including, without limitation, from negligence or wilful misconduct on the part of Armacell or others) in connection with the sale of goods and the provision of any services by Armacell.
13. NO LIABILITY FOR CONSEQUENTIAL LOSS
(a) So far as the law permits, Armacell is not liable to the purchaser in any way for any Consequential Loss or any loss by reason of delay, defective or faulty materials or workmanship, negligence or any act or matter or thing done or permitted by Armacell.
(b) Consequential Loss includes the following:
- loss of contract;
- loss of business opportunity;
- loss of profit;
- loss of production;
- loss of revenue;
- loss of goodwill;
- loss of business reputation, future reputation or damage caused by adverse publicity;
- damage to credit rating;
- any economic loss;
- loss or denial of opportunity (not confined to business opportunity)
- loss of use;
- loss of cost savings; and
- loss of sales.
Without limiting the above section, and in addition, Armacell shall not be liable for any special, indirect, exemplary, punitive or consequential loss, damage or liability suffered, paid or otherwise incurred by the purchaser either directly or indirectly in connection with this agreement.
Unless the purchaser has an express agreement with Armacell concerning delivery terms to the contrary, then the following delivery terms shall apply:
(a) Armacell shall in addition to the price payable for goods and/or services charge a delivery fee (which shall be in accordance with the delivery fees applicable to the purchaser most recently advised to the purchaser by Armacell) whether or not such fee was set out in the relevant purchase order.
(b) Delivery of goods and services shall occur at a time and date acceptable to Armacell. Armacell will endeavour, but is not obliged, to deliver such goods and services between the hours of 9.00 a.m. and 5.00 p.m. Monday to Friday (except public holidays).
(c) Pickups can be made: in relation to Full cartons/coils by the purchaser giving Armacell 24 hours prior notice provided such notice is given on a business day and the date of the pickup is in turn a business day.
(d) Armacell is not liable for any failure to deliver or delay in delivery for any reason including, without limitation:
- act of God, lightning, fire, flood, explosion;
- strike, lock-out or other labour difficulty;
- breakage or accident or other damage to machinery;
- unavailability or shortage of raw materials, labour, power supplies or transport facilities; or
- failure or inability to obtain licences or the effect of any applicable laws, orders, rules or regulations of any government or competent authority.
(e) If Armacell determines that it is or may be unable to deliver within a reasonable time or at all the contract may be cancelled by Armacell. If the contract is cancelled, the purchaser will have no claim against Armacell for any damage, loss, cost or expense.
15. RISK AND PROPERTY
(a) The risk of loss of, or damage to, the goods will pass to the purchaser on delivery and the purchaser will insure the goods until sold by the purchaser.
(b) Property in, and ownership of, the goods will not pass from Armacell to the purchaser until payment in full of the purchase price of the goods and all other amounts owing by the purchaser to Armacell (the money owing).
(c) Until property passes to the purchaser:
- the purchaser will hold the goods as fiduciary and bailee for Armacell;
- the goods must be stored separately and in a manner to enable them to be identified and cross-referenced to particular invoices;
- Armacell, its employees or agents, are entitled to enter the purchaser's premises between 9.00 a.m. and 5.00 p.m. to inspect the goods;
- unless otherwise notified in writing by Armacell and subject to paragraph (d), the purchaser is authorised to sell the goods in the ordinary course of the purchaser's business; and
- the proceeds of goods sold by the purchaser must be paid immediately into a separate account and shall not be mixed with other money, including funds of the purchaser.
(d) If payment for the goods is not made by the purchaser to Armacell on the due date, the purchaser must deliver the goods to Armacell on demand. If the purchaser does not comply with such a demand, Armacell, its employees or agents, are entitled:
- to enter the purchaser's premises at any time to do all things necessary in order to take possession of the goods and the purchaser:
(A) must procure the consent of all other persons having any interest in the premises where the goods are situated to entry of those premises by Armacell, its employees or agents; and|
(B) indemnifies Armacell against any claim, loss, liability, cost and expense that may be incurred or sustained by Armacell, its employees or agents, as a result of the entry of those premises where the goods are situated; and
- with or without taking possession of the goods, to sell them as Armacell sees fit. The purchaser must pay to Armacell the costs and expenses incurred by Armacell of legal advisers, mercantile agents and other agents acting on Armacell's behalf in respect of any enforcement of these Terms and Conditions, or recovery or attempted recovery of either the money owing by the purchaser to Armacell or possession of the goods.
(e) The purchaser acknowledges that the goods are not intended to become affixed to any of its premises and must ensure that the goods may be removed from those premises without causing damage of any kind to the premises.
(f) The purchaser's right to hold and sell the goods will immediately cease if an administrator or a controller within the meaning of section 9 of the Corporations Act 2001 or similar officer is appointed to all or any assets or undertaking of the purchaser or an order is made or resolution passed for the winding up of the purchaser or the purchaser is deregistered. In any such case, and without the need for notice or demand by Armacell, the purchaser acknowledges any sale or purported sale of the goods will not be in the ordinary course of the purchaser's business and the proceeds of any goods sold in such circumstances will, to the extent of money owing, be held on trust for Armacell by the administrator, controller or similar officer as the case may be, or if there is no such officer, by the purchaser.
(g) Any provision of this clause 15 which is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this clause 15 nor affect the validity or enforceability of that provision in any other jurisdiction.
(h) For the purposes of the Personal Property Securities Act 2009 (“PPSA”), the purchaser agrees:
- that the purchaser’s agreement to Armacell’s retention of title rights under this clause constitutes a written security agreement within the meaning of the PPSA;
- that the collateral covered by the written security agreement is all goods sold by Armacell to the purchaser from time to time or at any time;
- that where this written security agreement is contained in a document which is not signed by the purchaser, that the purchaser may adopt and accept the written security agreement by continuing to order goods from Armacell;
- that all terms of the written security agreement shall apply to each supply of goods by Armacell to the purchaser;
- that Armacell may register a financing statement or statements under the PPSA in relation to Armacell’s security interest or interests arising from the written security agreement;
- to sign any further documents and/or provide any further information which Armacell may reasonably require in order to register a financing statement or financing change statement under the PPSA;
- to indemnify and reimburse Armacell for all costs and expenses incurred by Armacell in registering a financing statement or a financing change statement under the PPSA in relation to Armacell’s security interest or interests arising from this written security agreement or that are incurred by Armacell in complying with or considering and dealing with any amendment demand made by the purchaser;
- to provide Armacell with 14 days prior written notice of any change to the purchaser’s name, ACN, ABN, address or other details;
- to waive the purchaser’s right under section 157 of the PPSA to receive a notice in relation to registration events to which paragraph (a) of subsection 157(3) of the PPSA applies;
- that nothing in section 143 of the PPSA will apply to this written security agreement; and
- to waive the purchaser’s right to do any of the following:
(A) receive notice of removal of an accession under section 95 of the PPSA;
(B) receive notice of disposal of collateral under section 130 of the PPSA;
(C) receive a statement of account if there is no disposal under section 132(4) of the PPSA;
(D) receive notice of retention of collateral under section 135 of the PPSA;
(E) redeem the collateral under section 142 of the PPSA;
(F) reinstate the security agreement under section 143 of the PPSA;
(G) object to the purchase of the collateral by Armacell under section 129 of the PPSA; and
(H) receive a statement of account under section 132(3)(d) of the PPSA following a disposal showing the amounts paid to other secured parties.
16. PERFORMANCE AND REPRESENTATIONS
The purchaser acknowledges that neither Armacell nor any person purporting to act on its behalf has made any representation or given any promise or undertaking which is not expressly set out in writing, whether as to the fitness of the goods and/or services for any particular purpose or any other matter.
Armacell reserves the right to deliver goods by installments and each installment will be taken to be sold under a separate contract. Failure of Armacell to deliver any installment of goods will not entitle the purchaser to cancel the balance of the purchase order. If the purchaser defaults in payment for any installment, Armacell may elect to treat the default as a breach of contract relating to each other installment.
Failure by Armacell to insist on strict performance of any term, warranty or condition of the contract will not be taken as a waiver of it or of any rights Armacell may have and no waiver will be taken as a waiver or any subsequent breach of any term, warranty or condition.
19. MITIGATION OF LOSS
The purchaser shall notify Armacell immediately of any defect in the goods of which it becomes aware and will take all reasonable steps to mitigate loss (if any) arising as a consequence of the defect. If the purchaser transforms the goods and sells the transformed goods, the purchaser undertakes to Armacell that it will impose on the acquirer of the transformed goods an obligation to notify immediately the purchaser and Armacell of any defect in the transformed goods of which it becomes aware after delivery and to take all reasonable steps to mitigate loss (if any) arising as a consequence of the defect.
20 TERMINATION FOR BREACH
(a) Clauses 20(a) to 21(d) apply if:
- a party commits a breach of this agreement; and
- the party not in breach proposes to terminate this agreement.
(b) The party not in breach must:
- give to the party in breach written notice that the party not in breach proposes to terminate this agreement because of the breach; and
- notify the party in breach of what the party not in breach requires to be done to remedy the breach; and
- allow the party in breach 20 business days to remedy the breach.
(c) If the breach is remedied in accordance with clauses 20(b)(B) and 20(b)(C), the party not in breach must not terminate the agreement because of that breach.
(d) The obligation to give a notice pursuant to clause 20(b)(A) applies to any breach irrespective of whether it is capable of being rectified or corrected within the period of 20 business days referred to therein.
(e) Either party may immediately terminate this agreement at any time by written notice to the other if either party commits an Insolvency Event.
(f) Insolvency Event means the occurrence of any one or more of the following events in respect of a party:
- an order is made to appoint a liquidator or provisional liquidator;
- an order is made for its winding up or dissolution;
- an application is made to a court for an order described in clauses 20(f)A) or 20(f)(B) of this definition and that application is not withdrawn or discharged within 21 days;
- a receiver, receiver and manager, liquidator, provisional liquidator or administrator is appointed (whether or not under an order);
- (being an individual) becoming bankrupt (irrespective of any later annulment);
- entry by the person into any arrangement, or compromise with, or assignment for, the benefit of its creditors;
- the person becomes insolvent as disclosed by its accounts or otherwise, states that it is insolvent or it is presumed to be insolvent under any applicable law;
- becoming an insolvent under administration which for the purposes of this clause has the meaning it has in the Corporations Act 2001;
- being unable to pay its debts other than a debt or claim the subject of a bona fide dispute;
- (being a company) as a result of the operation of section 459F(1) of the Corporations Act 2001 it is taken to have failed to comply with a statutory demand;
- a notice of proposed deregistration is published under section 601AA or 601AB of the Corporations Act 2001; or
- anything occurs under the law of any jurisdiction which has substantially similar effect to any of the above paragraphs of this definition.
The documents comprising the agreement between Armacell and the purchaser must be read in the following order of precedence:
(a) these terms and conditions;
(b) the price lists and delivery fees applicable to the purchaser most recently advised to the purchaser by Armacell;
(c) the purchase order.
Where any conflict occurs between the provisions of a purchase order and these terms and conditions or between the provisions of a purchase order and the price lists and delivery fees applicable to the purchaser most recently advised to the purchaser by Armacell, and where such conflict is not resolved by the application of the other provisions of these terms and conditions, the purchase order shall where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions must be severed from the purchase order without otherwise diminishing the enforceability of the remaining provisions of the agreement.
22. MANDATORY REPORTING
Where a purchaser becomes aware of a death, serious injury or serious illness associated with Armacell’s goods or services, or that another person believes that a death, serious injury or serious illness is so associated, the purchaser must immediately notify this to Armacell and provide all information in the purchaser’s possession or that Armacell reasonably requires concerning same.
Any notice to be given by the purchaser to Armacell must be sent by prepaid mail or facsimile transmission to Armacell's address. No notice will be taken to have been given until it is actually received at Armacell's address.
24. ENTIRE AGREEMENT
This agreement (comprised as set out in clause 1(b) of these terms and conditions) contains the entire agreement and understanding of the parties as to its subject matter and supersedes all prior agreements, understandings, negotiations or representations between the parties and to the full extent permitted by law there are no warranties, conditions or other terms, or agreements whether implied, oral or written, extending, defining or otherwise relating to the provisions of this agreement or its subject matter.
25. GOVERNING LAW
This agreement is governed by and construed in accordance with the laws for the time being in force in the State of Victoria, Australia. The parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia including any courts having appellate jurisdiction.