SUPPLIER TERMS AND CONDITIONS
CO GEAR PTY LTD ACN 631 130 517 - CONDITIONS OF SUPPLY
- In these Conditions, words importing the singular include the plural and vice versa. References to a party includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity and a reference to a party to this document includes the party’s successors, permitted substitutes and permitted assigns. Any terms used in these Conditions have the same meaning as in the Credit Account Application.
- In these conditions:
- CCA means the Competition and Consumer Act 2010 (Cth) and all related regulations, as amended from time to time;
- Common Goods means the goods which the Customer processes and which are created either by using the Goods to manufacturer other goods or by incorporating the Goods in or with any other goods, such that the Goods are no longer separately identifiable;
- Conditions means these terms and conditions;
- Confidential Information means all pricing information and any other commercially sensitive or confidential information relating to the Credit Account Agreement;
- Corporations Act means the Corporations Act 2001 (Cth) and includes the Corporations Regulations 2001 (Cth), both as amended from time to time;
- Credit Account Agreement means the agreement comprised by these Conditions and the Credit Account Application;
- Credit Account Application means the credit account application issued by the Supplier;
- Customer means Co Gear Pty Ltd ACN 631 130 517 trading as ‘Co Gear’ ABN 59 631 130 517;
- Default Interest Rate means the rate of 5% per annum, compounding on balances due at the end of each calendar month;
- Delivery Point means the location for delivery of the Goods, as nominated by the Customer to the Supplier;
- Drop Spot means the place as close to the Delivery Point as, in the opinion of the Supplier or its transport contractor, it is safe or prudent to deliver the Goods;
- Force Majeure means any cause or circumstance beyond the Supplier’s reasonable control, including but not limited to, any lack of production capacity or raw materials, strikes, lock-outs, labour disputes, fires, floods, acts of God or public enemy, malicious or accidental damage, delays in transport, breakdowns in machinery or restrictions or prohibitions by an government or any semi-government authorities or embargoes;
- Forced Labour means any activity, practice or conduct that would constitute an offence in relation to forced labour, involuntary servitude, debt bondage, human trafficking, modern slavery, or other slavery-like exploitation as prohibited or defined as a modern slavery offence under all application anti-slavery and human trafficking laws, statutes and codes from time to time in force, including (but not limited to) the Criminal Code Act 1995 (Cth) and other linked, related or similar legislation;
- Goods means goods the subject of a quotation, an order, or contract made between the Supplier and the Customer and includes Common Goods;GST means the tax payable on a Taxable Supply within the meaning of the GST Act;
- GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any related Act imposing such tax or legislation that is enacted to validate, recapture or recoup such tax;
- Hardship Notice means a written notice issued to the Supplier by the Customer, outlining the Customer’s desire to discuss and negotiate a price adjustment or appropriate changes to any contract for supply of Goods;
- Loss means any loss and includes without limitation, indirect, special or consequential loss or damage and is deemed to include economic loss, loss of opportunity, loss of profit or revenue, loss or damage in connection with clams against the Customer by third parties, liquidated sums or liquidated damages;
- Price Escalation means an increase in the cost of supplying the Goods incurred by the Supplier in the period between acceptance of a quote by the Customer, or an order by the Supplier, and the delivery of the relevant Goods, as a result of a Price Escalation Event;
- Price Escalation Event occurs where there is an increase in the cost to the Supplier of acquiring, producing or delivering the Goods (or raw material inputs required to produce the Goods) outside of the Supplier’s reasonable control, as a result of an event including, without limitation, any one or more of the following:
- an increase in transportation costs, including changes to fuel prices, freight charges, importation costs and the like;
- a tax, excise, duty, charge, levy or other impost charged by any domestic or foreign government;
- a change in any law or regulation of any country; and
- a change in current long term foreign currency exchange rates between Australia and any other foreign currency;
- Recipient means a party to these Conditions who is receiving a Taxable Supply;
- Related Body Corporate has the meaning given to the term in the Corporations Act;
- Supplier means the party who has provided the quote to provide the Goods, that is being accepted by the Customer upon the provision of these Terms & Conditions;
- Supply Maker means a party to these Conditions who is making a Taxable Supply;
- Taxable Supply has the meaning given to the term in the GST Act;
- Variation means any modification, amendment or change to the terms of an order submitted by the Customer (whether or not such order has been accepted by the Supplier) including, without limitation, in relation to scheduling and re-scheduling, loading requirements, delivery times or delivery sites; and
- Working Hours means between 8:00 am and 5:00 pm, Monday to Friday (inclusive) excluding public holidays in Brisbane.
- The Customer is taken to have accepted and is immediately bound, jointly and severally, by these Conditions at the earlier of the time that the Customer:
- places an order for Goods; or
- accepts delivery of the Goods.
- The Supplier is taken to have accepted and is immediately bound, jointly and severally, by these Conditions at the point in time the Supplier receives an order for Goods from the Customer.
- Unless other terms and conditions are expressly accepted by the Supplier by means of a written amendment to these Conditions signed by a Director of the Supplier and referring specifically to the Conditions to be amended, these Conditions shall exclude and supersede all prior discussions, representations and arrangements, and any other oral or written terms and conditions whether or not the same are endorsed upon, delivered with or referred to in any delivery docket or other document delivered with or referred to by the Customer to the Supplier.
- A written quotation issued by the Supplier to the Customer is an offer to sell and overrides the Supplier’s prevailing price list. A written quotation expires on the date specified as an expiry date. If no expiry date is specified, the written quotation expires 120 days after the date of issue of the written quotation.
- A contract for the supply of Goods is made when the Customer communicates (by writing or conduct) to the Supplier its acceptance of a written quotation or places an order for Goods from the Supplier.
- An order from the Customer on terms which are inconsistent with the terms of a written quotation (or where no quotation has been supplied) is an offer by the Customer to buy Goods from the Supplier. A contract for the supply of Goods is made if the Supplier communicates that it is prepared to supply the ordered Goods in which case the contract is deemed to have been made as at the date of the Customer’s order and these Conditions shall apply.
- A contract made pursuant to clauses 2 or 3.3 is wholly documented by any specific terms agreed by the Supplier and the Customer in writing including, without limitation, in a quotation and in all cases, includes these Conditions. To the extent that any inconsistency arises between the terms of a quotation and any clause of these Conditions, the terms of these Conditions prevail.
- The provisions of these Conditions prevail over any terms and conditions of trade of the Supplier whether or not any inconsistency arises.
- It is a term of the contract made between the Supplier and the Customer that in the event the Customer has made a payment for the Goods (either in part or in full), the Supplier is obliged to supply the Goods to the Customer.
- If, after the contract is made between the Supplier and Customer the Goods are unavailable, the Supplier must:
- immediately notify the Customer;
- take all reasonable steps to make alternative arrangements to procure the Goods;
- provide an updated timeframe by which the Goods will be made available to the Customer,
and the Customer may, at the sole discretion of the Customer:
- cancel the order, in which case the Supplier must immediately refund any amount paid by the Customer to the Supplier; or
- accept the revised timeframe given by the Supplier, and these Conditions will continue in force.
- The Customer is relying on the skill and judgement of the Supplier in relation to the suitability of any of the Goods for a particular purpose, in particular where it has indicated that purpose in writing to the Supplier and the Supplier has acknowledged in writing and provided evidence that is satisfactory to the Customer in their sole discretion that the Goods will be fit for the particular purpose.
- The Supplier will deliver Goods to the Customer as follows:
- the Supplier reserves the right to arrange transport by any means in its absolute discretion;
- unless otherwise agreed to by the Supplier, delivery will be made during Working Hours to the Delivery Point;
- the Supplier or its transport contractor will deliver the Goods to the Delivery Point and delivery occurs and risk in the Goods passes to the Customer when:
- the Supplier’s or its transport contractor’s delivers the Goods to the Delivery Point; and
- the Supplier’s or its transport contractor’s provides communication to the Customer that this has been completed; and
- the Customer communicates receipt of the Goods to the Supplier or its transport contractor;
- the delivery of Goods at the Delivery Point is the Supplier’s responsibility at its own cost and risk, but the Supplier or its transport contractor may, if directed by the Customer, unload the Goods at the Drop Spot if the Customer requests the Supplier to do so or is absent from the Drop Spot at the time the Supplier or its transport contractor wishes to unload, however the Customer only releases and forever discharges the Supplier and its transport contractor from and against any claim, cause of action or liability arising out of the unloading of Goods at the Drop Spot upon the giving of written acknowledgement from the Customer that the Goods have been received;
- where the Customer attends the Supplier’s premises, or arranges for collection by their own carrier to acquire Goods the Supplier must:
- deliver the Goods into or onto the Customer’s or the carrier’s vehicle in which case risk in the Goods passes to the Customer and delivery is effected when the Goods are set down in or on the Customer’s or carrier’s vehicle.
- Where the Supplier or its transport contractor enters the Customer’s premises or the premises of a third party nominated by the Customer as a Delivery Point, the Supplier or its transport contractor:
- does so at their own risk; and
- indemnifies and holds the Customer harmless from and against any loss, damage or liability suffered or incurred by the Supplier or its transport contractor in respect of damage occasioned to the Supplier or its transport contractor or injury to persons arising out of the delivery by the Supplier or its transport contractor of Goods to the premises, except for and to the extent that such Loss, damage or liability suffered or incurred by the Supplier or its contractor arises out of the negligence or carelessness of the Customer.
- Unless otherwise agreed by the Supplier and the Customer in writing, the Supplier will bundle or package Goods the subject of an order in its discretion, exercising all reasonable care and skill, and the Supplier takes full responsibility for any damage, breaks, liability or claim arising out of such bundling or packing by the Supplier.
- The Supplier will not be liable for any Loss incurred as a result of delay or failure to make any supply of Goods or to observe any of these Conditions due to an event of Force Majeure. During the continuance of an event of Force Majeure the Supplier’s obligations under these Conditions will be suspended.
- It is the Customer’s responsibility to ensure that all applicable health and safety regulations are observed and other appropriate steps taken in relation to the storage, handling and use of the Goods and, where information is supplied to the Customer on potential hazards relating to the Goods, to bring such information to the attention of its employees, agents, subcontractors, visitors and customers. Without prejudice to the foregoing, it is also the Customer’s responsibility to provide safe facilities for the reception of the Goods into storage.
- The obtaining and maintenance in full force and effect of any necessary licences, permits, approvals, authorisations or consents in respect of the Goods is the sole responsibility of the Customer. The Supplier will not have any liability in respect of Goods purchased by the Customer without holding the necessary licences, permits, approvals, authorisations or consents.
Passing of Title
- The Supplier agrees that legal and equitable title to the Goods passes to the Customer upon delivery of the Goods to the Customer.
- Notwithstanding any other provision to the contrary, the Supplier reserves the following rights in relation to the Goods until all amounts owed by the Customer to the Supplier in respect of the Goods and all other goods and services supplied to the Customer by the Supplier at any time are fully paid:
- to seek payment of any unpaid amount by the Customer as a liquidated debt;
- to charge interest at the Default Interest Rate for any amount not paid by the Customer when due.
- The price of Goods will be the price provided by the Supplier to the Customer in a written quotation, or if no written quotation has been given, the price at the time the Customer places the order for the Goods.
- Where there is a Price Escalation, the Supplier will bear any additional costs arising in relation to a Price Escalation.
- If the Supplier, in its sole discretion, determines that the Price Escalation is material, the Supplier shall notify the Customer of the Price Escalation Event and the amount of any such Price Escalation and the Customer may elect to:
- accept the Price Escalation and receive the Goods; or
- deliver a Hardship Notice to the Supplier.
- Where the Customer delivers a Hardship Notice:
- the Supplier shall arrange and hold a meeting with the Customer within 14 days of receipt of the notice, at which the parties must use their best endeavours to reach a mutually acceptable agreement; and
- the Customer is not bound to accept the Price Escalation, in which case it will forego the right to receive the Goods and the Supplier must immediately refund to the Customer any and all amounts paid in relation to the Goods.
- The Supplier agrees that the price of Goods includes (and the Supplier may not recover from the Customer):
- taxes (other than income tax and GST), stamp duty or other statutory charges or levies whether State or Federal payable in relation to the supply of Goods;
- the cost of delivery of Goods including, without limitation, costs relating to long loads, wide loads, escorted loads, drop trailers, crane trucks (including essential personnel), particular dunnage requirements, palletising or crating of materials, early deliveries (at or around 7:00 am), small delivery loads of less and delivery to non-metropolitan sites;
- costs incurred by the Supplier arising out of notification by the Customer of a change to an agreed delivery schedule;
- storage charges where Goods are not collected immediately upon being made available for collection at the Supplier’s premises;
- demurrage costs or charges incurred by the Supplier for attendance at a Delivery Point after the expiration of the first three quarters of an hour such charges to be calculated at master carrier rates;
- all costs, charges, expenses or any other outgoings incurred by the Supplier with respect to any Variation by the Customer;
- the costs of any testing or inspection of Goods, or testing or inspection of products or materials required by the Customer to be used in relation to the manufacture of Goods.
- Where a Supply Maker makes a Taxable Supply under or in connection with these Conditions to a Recipient and the consideration otherwise payable for the Taxable Supply is not specifically stated to include GST, the Supply Maker will be entitled to recover from the Recipient as an additional amount the amount of any GST payable on the Taxable Supply.
- The amount of any cost recovery or compensation for costs under or in connection with these Conditions shall be reduced by the amount of any Input Tax Credits (within the meaning of the GST Act) available in respect of those costs.
- A party to these Conditions will not be obliged to pay any amount in respect of GST to the other party unless and until a Tax Invoice (within the meaning of the GST Act) has been issued in respect of that GST.
Payment Terms, Default and Credit
- Unless the Supplier has agreed to extend credit to the Customer, payment for Goods must be made by the Customer in within thirty (30) days from receipt of an invoice from the Supplier, which must not be given until the Goods have been delivered.
- Unless otherwise agreed by the Customer and the Supplier, the Supplier must deliver the Goods in one instalment. Where the delivery of the Goods is effected by way of part delivery, the Supplier is responsible for any additional costs in doing so, and may not require payment from the Customer until all Goods have been delivered.
- Where the Supplier has entered into a Credit Account Agreement with the Customer, the Supplier will submit an invoice to the Customer for Goods supplied to the Customer (including, without limitation, Goods delivered in part fulfilment of an order) and the full amount of the invoice together with any additional charges (if any) must be paid by the Customer to the Supplier by no later than the date which is 30 days after the date of the Supplier’s invoice or such other date for payment as the Supplier and the Customer agree in writing.
- Interest on overdue invoices shall accrue from the date that is one day after the date when payment becomes due daily until the date of payment at the Default Interest Rate and shall continue to accrue at the Default Interest Rate before or after any judgement until payment is received in full. All payments made by the Customer will be first applied to the costs of the Goods.
- If the Supplier is in breach or alleged breach of these Conditions (including the supply of allegedly faulty or defective Goods), the Customer may retain or withhold any money not paid until the Supplier remedies such breach.
- If the Customer breaches a provision of these Conditions including, without limitation, a provision relating to the payment of money or if the Customer, being a natural person, is the subject of any personal insolvency event including, without limitation, arising out of the Customer committing an act of bankruptcy or if the Customer, being a company, has a receiver, receiver and manager, official manager, trustee, administrator, other controller (as defined in the Corporations Act) or similar official appointed or if steps are taken for such appointment over any of the assets or undertaking of the Customer then the Supplier may, without limiting any other rights it may have, do any or all of the following things:
- withdraw any credit facilities which may have been extended to the Customer and require immediate payment of all moneys owed to the Supplier by the Customer;
- terminate without the Supplier incurring any liability to the Customer any contract in force between the Supplier and the Customer for the sale or supply of Goods and, without limitation, withhold any deliveries of Goods pursuant to any purchase order accepted by the Supplier; or
- suspend the performance under or terminate, in either case without the Supplier incurring liability to the Customer, any contracts in force between the Supplier and the Customer, not being contracts for the sale of supply of Goods.
- The Customer acknowledges that:
- the Goods are acquired by the Customer and the Customer has held itself out to the Supplier as acquiring the Goods for the purpose of re-supply or for the purpose of using them up or transforming them, in trade or commerce, in the course of a process of production or manufacture of repairing or treating other goods or fixtures on land; and
- it has not made known to the Supplier expressly or impliedly any particular purpose for which it has acquired the Goods.
- The Supplier warrants and represents that:
- the Supplier (including any of the Suppliers agents, directors, officers, employees, contractors, subcontractors or other authorised persons) has not, in complying with the Conditions and providing the Goods to the Customer, engaged in any form of Forced Labour;
- the Supplier will notify the Customer immediately if it believes, or has reason to believe, that any Forced Labour has been carried in in connection with these Conditions or any order placed by the Customer;
- the Goods will be fit for the purpose required by the Customer, and will comply with their description and quality advertised or separately advised by the Supplier in writing;
- the Supplier has complied with all laws, regulations, statutory, state and local government requirements in connection with these Condition and in relation to providing the Goods to the Customer.
Returns, Limitation of Liability, Release & Indemnity
- The Customer must inspect the Goods on delivery and must within seven (7) days of delivery notify the Supplier in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow the Supplier to inspect the Goods.
- To the extent permitted by law, the liability of the Supplier in respect of any defect in or damage to the Goods is limited to, at the option of the Supplier:
- the replacement or repair of the Goods; or
- the payment of the cost of repairing or replacing the Goods; or
- a refund of any amount paid by the Customer, proportionate to the quantity of damaged Goods (if not all Goods comprising an order are damaged).
- Subject to clauses 12.1 and 12.2, returns will be accepted provided that:
- the Customer has complied with the provisions of clause 12.1; and
- the Goods are returned within a thirty (30) days of receipt by the Customer at the Supplier’s cost; and
- the Goods are returned in the same, or materially the same condition to that in which they were delivered in.
- Notwithstanding anything contained in this clause if the Supplier is required by a law to accept a return then the Supplier will accept a return on the conditions imposed by that law.
- The Customer indemnifies on a continuing basis and on a full indemnity basis the Supplier from and against any liability, loss, expense or demand for or arising from any false, misleading, deceptive or misdescriptive representation or statement made by the Customer in respect of the Goods to any person. This indemnity survives termination of these Conditions by either party for any reason.
- The Customer acknowledges that all of the Confidential Information is strictly confidential.
- Except as stated in the Credit Account Agreement or where required by the PPS Act, the Supplier and the Customer are 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, other than their professional advisers or as required by law, without the prior written consent of the party to whom the Confidential Information relates.
- This clause operates for the benefit of all parties and continues despite the termination of the Credit Account Agreement.
- Nothing in these Conditions is intended to exclude, restrict or modify rights which the Customer may have under the CCA or any other legislation which may not be excluded, restricted or modified by agreement.
- A party waives a right under these Conditions only if it does so in writing. A waiver of one breach of a term of these Conditions does not operate as a waiver of another breach of the same term or any other term.
- If a provision in these Conditions is wholly or partly invalid or unenforceable in any jurisdiction, that provision or the part of it that is invalid or enforceable must, to that extent, and in that jurisdiction, be treated as deleted from these Conditions. This does not affect the validity or enforceability of the remaining provisions in that jurisdiction, or of the deleted provision in any other jurisdiction.
- The Supplier may not assign or otherwise deal with the benefit of any contract made pursuant to these Conditions without the consent of the Customer.
- All contracts made between the Supplier and the Customer shall be governed by and construed in accordance with the laws of the State of Queensland. The Customer agrees to submit to the non-exclusive jurisdiction of the Queensland courts for all purposes of or in connection with such contracts.
Co Gear and the Co Gear logos are trademarks and/or service marks of the Customer. The Supplier has no right under the Credit Application Agreement or otherwise to use any trademark, service mark, patent, logo and/or trade name of the Customer or its subsidiaries or affiliates, suppliers, advertisers, agents or sponsors.
Acceptance by Supplier
The Supplier hereby acknowledges and agrees that:
- they have read and agree to the terms and conditions contained in this Agreement; and
- upon accepting these Terms and Conditions in accordance with the methods set out in this Agreement, they will be deemed to have accepted these Terms and Conditions and will be bound to them as if they have signed.