Acute Fabrication Pty Ltd (ABN 40 618 245 800)
Trading Terms and Conditions

1.       Definitions

1.1.    “AF” means Acute Fabrication Pty Ltd (ABN 40 618 245 800) and any persons acting on behalf of and with authority of Acute Fabrication Pty Ltd.

1.2.    “Client” means any legal entity which purchases goods and/or services from AF

1.3.    “Goods” means all materials, works, services, fabrication, manufactured products, repair, or related goods or services supplied by AF to the Client and the Clients request from time to time.

1.4.    “Price” means the price payable for the goods as agreed between the Client and AF

1.5.    “Contract” has the meaning provided in Clause 3 of these Terms and Conditions

1.6.    “PPSA” means the Personal Property Securities Act (2009) (Cth) and any associated regulations or subsidiary legislation

1.7.    “PPSR” means the Personal Property Securities Register established in accordance with s147 of the PPSA

1.8.    “Terms of Trade” means these terms of trade, which may be amended from time to time.

1.9.    “GST” means Goods and Services Tax Act 1999.

2.       General

2.1.    These terms and conditions apply to all tenders, quotations, orders and contracts whenever AF supplies, provides or delivers any Goods or services to a client.

2.2.    By requesting, ordering, purchasing or receiving delivery of any goods or services, the client is deemed to have accepted these terms and to have agreed that they apply to the exclusion of all other, unless agreed in writing.

2.3.    A quotation made by AF will be valid for 30 days, unless otherwise stated.

2.4.    Any order made by the client shall not be binding until AF have accepted in writing or in such a manner that AF see fit for the circumstance.

2.5.    The failure by AF to enforce any provision of these terms and conditions shall not be treated as a waiver of that

provision, nor shall it affect AF’s right to subsequently enforce that provision.

2.6.    If any provision of these terms and conditions shall be invalid, void, illegal, or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

2.7.    AF may license or subcontract all or any part of its rights and obligations without the Clients consent.

2.8.    Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.

2.9.    The Client warrants that it has the power to enter into this agreement and has obtained all necessary authorizations to allow it to do so, it is not insolvent, and that this agreement creates binding and valid legal obligations on it.

3.       The Contract

3.1.    These Terms and Conditions together with:

3.1.1.  Any completed application accepted by the company

3.1.2.  Any guarantee provided by the Client and/or its directors or shareholders in favour of AF

3.1.3.  Any quotation issued by the company to the Client stated to be binding on the parties

3.1.4.  Any other supply agreement between AF and the Client make up the contract between AF and the Client for the provision of the goods

3.2.    By purchasing the goods, the Client agrees to be bound by the contract.

4.       Acceptance

4.1.    The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions when the Client places an order or accepts delivery of goods.

5.       Price and payment

5.1.    At AF’s sole discretion, the price shall be either

5.1.1.   As indicated on any invoice provided by AF to the Client

5.1.2.   AF’s quoted price which will be valid for the period stated in Clause 2.3 or otherwise stated on the quotation

5.2.    AF reserves the right to change the price if a variation to AF’s quotation is requested. Any variations from the plan of scheduled goods or specifications will be charged for on the basis of AF’s quotation and will be shown as variations on the invoice.

5.3.    At AF’s discretion, a non-refundable deposit may be required.

5.4.    The price will be payable by the client on the date/s determined by AF, which may be:

5.4.1.  Cash in Advance

5.4.2.  Cash On delivery/completion of the goods

5.4.3.  By way of instalments/progress payments in accordance with AF’s payment schedule

5.4.4.  Thirty days following the end of the month in which a statement is provided to the Client

5.4.5.  The date specified on any invoice or other form as being the date for payment

5.5.    A line of credit will only be offered once a credit application has been filled out and approved by AF. Filling out a credit application does not Guarantee a line of credit will be offered. Until such time all quotes prices are assumed to be COD terms unless credit has been confirmed prior.

5.6.    Payment can be made by Direct Electronic Fund transfer to our Nominated Bank Account, or by another method as agreed between the Client and AF.

5.7.    Unless otherwise stated, the price does not include GST.

5.8.    GST is payable by the client on the goods provided by AF and the price payable for the goods will be increased by an amount equal to the amount of GST Payable.

5.9.    AF will separately identify the amount of GST payable by the client on AF’s tax invoice.

6.       Default and consequences of default

6.1.    Interest on overdue invoices will be charged at a rate of 4% per calendar month, once payment reaches 30 days overdue.

6.2.    If the Client owes AF money, the Client shall indemnify AF from and against all costs and disbursement incurred by AF in recovering the debt

6.3.    Without any prejudice top any other remedies, AF may have if at any time the Client is in breach of any obligation under these terms and conditions AF may suspend or terminate the supply of goods to the Client.

6.4.    AF will not be liable to the Client for any loss or damage the client suffers because AF has exercised its rights under this clause.

7.       Plans and Specifications

7.1.    All industry tolerances shall apply to the dimensions and measurements of the goods, unless AF and the client agree otherwise in writing.

7.2.    AF shall be entitled to reply on the accuracy of any plans, specifications and other information provided by the Client.

7.3.    If the giving of an estimate or quotation for supply of goods involves AF to estimate measurements and quantities, it shall be the responsibility of the Client to verify the accuracy of AF estimated measurements and quantities, before the Client accepts such quotation.

8.       Orders

8.1.    The client may order goods from time to time by providing a purchase order to the company in a form which contains information that AF may require.

8.2.    AF reserves the right to accept or reject any order submitted by the client at its absolute discretion.

8.3.    In the event that the client cancels the delivery of goods, the Client shall be liable for any and all loss incurred by AF as a direct result of the cancellation

8.4.    Cancellation of orders for goods to the Clients specifications or for non-stock list items, will definitely not be accepted once production has commenced, or an order has been placed.

9.       Delivery of goods

9.1.    Delivery of the goods is taken to occur at the time that:

9.1.1.  The Client or the Clients nominated carrier takes possession of the goods at AF’s address OR

9.1.2.  AF delivers the goods to the Clients nominated address

9.2.    The date provided by AF to the Client, is an estimate only. The Client must still accept the delivery of the goods even if late, and AF will not be liable for any loss or damage incurred by the Client as a result of the delivery being late.

10.    Risk

10.1. Risk of damage to or loss of the goods passes to the client on delivery and the Client must insure the goods on or before delivery.

10.2. If any goods are damaged or destroyed following delivery, but prior to ownership passing to the Client, AF is entitled to receive all insurance proceeds payables for the goods.

10.3. If the Client requests AF to leave the goods outside AF premises for collection or to deliver the goods to an unattended location, then such goods shall be left at the Clients sole risk.

11.    Ownership & Retention of Title

11.1. AF and the Client agree that ownership of the goods shall not pass until:

11.1.1.     The Client has paid AF all amounts owing to AF; AND

11.1.2.     The Client has met all of its other obligations to AF.

11.2. Receipt by AF of any form other than cash, shall not be deemed to be payment until that form of payment has been honored, cleared or recognized.

11.3. The Client irrevocably authorizes AF to enter any premises where AF believes the goods are kept and recover possession of the goods

11.4. The Client shall not charge or grant encumbrance over the goods not grant no otherwise give away any interest in the goods while they remain the property of AF.

11.5. AF may commence proceedings to recover the price of goods sold notwithstanding that ownership of the goods has not passed to the Client.

12.    Defects, warranties and returns, competition and consumer act 2010 (CCA)

12.1. The Client must inspect the goods on delivery and must within fourteen (14) days of delivery notify AF in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote.

12.2. AF make no warranties or other representations under these terms and conditions including but not limited to the quality or suitability. AF’s liability in respect of these warranties is limited to the fullest extent permitted by law.

12.3. If AF is required to replace the goods under this clause or the CCA, but is unable to do so, AF may refund any money the client has paid for the goods.

12.4. Subject to this clause, returns will only be accepted provided that:

12.4.1.     The client has complied with the provisions of clause 12.1 AND

12.4.2.     AF have agreed that the goods are defective

12.4.3.     The goods are returned within a reasonable time at the client’s cost

12.4.4.     The goods are returned in the conditions to that in which they were delivered as is possible.

12.5. Notwithstanding clause 12.1 and 12.4, but subject to the CCA, AF shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

12.5.1.     The Client failing to properly maintain or store any goods

12.5.2.     The Client using the goods for any purpose other than that for which they were designed

12.5.3.     The Client continuing the use of any goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user

12.5.4.     The Client failing to follow any instruction or guidelines provided by AF

12.5.5.     Fair wear and tear, any accident or act of God.

13.    Limitation of Liability

13.1. AF shall not be liable to the client for any loss or damage, consequential or otherwise, which is not a direct result of a breach by AF of the contract.

13.2. In the event of a breach of this contract by AF the remedies of the Client shall be limited to the damages and AF’s liability whether in contract, tort or otherwise, in respect of any defect in the goods, or for any breach of these terms and conditions, or of any duty owed to the Client in connection with them shall be limited to the amount of the price.

14.    Personal Property Securities Act 2009 (PPSA)

14.1. Upon assenting to these terms and conditions, the client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all goods that have been supplied and that will be supplied in the future by AF to the Client.

14.2. The client consents to AF effecting a registration on the PPSR in relation to any interest arising under or in connection with these terms, any contract or otherwise arising under the PPSA.

14.3. The Client agrees that AF does not need to provide a copy of the verification statement (resultant form the PPSR registration) to the Client, if the registration involves Commercial property.

14.4.  The client undertakes to:

14.4.1.     Promptly sign any further documents and/or provide any further information which AF may reasonably require to:

14.4.1.1.           Register a financing statement or financing change statement in relation to a security interest on the PPSR

14.4.1.2.           Register any other document required to be registered by the PPSA; or

14.4.1.3.           Correct a defect in a statement referred to in clause 10.2

14.4.2.     Indemnify, and upon demand reimburse AF for all expenses incurred in registering a financing statement or financing change statement on the PPSR established by the PPSA or releasing any goods charged thereby

14.4.3.     Not register a financing change statement in respect of a security interest without the prior written consent of AF

14.4.4.     Not register or permit to be registered a financing statement of financing change statement in relation to the goods in favour of a third party without the prior written consent of AF

15.    Security & Charge

15.1. In consideration of AF agreeing to supply Goods, the Client charges all of its rights, title and interest in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions.

15.2. The Client indemnifies AF from and against all AF’s costs and disbursements including legal costs from a solicitor and own client bases incurred in exercising AF’s rights under this clause

16.     Confidentiality

16.1. The client acknowledges and agrees that all pricing information and any other commercially sensitive or confidential information relating to the goods, the business of the company and the contract is strictly confidential.

16.2. Other than disclosure to it professional adviser, or if required to do so by law, the client shall not permit any of its officers, employees, agents, contractors or related bodies, to disclose any confidential information to any person without the prior written consent of AF.

16.3. Clause 16 will survive the termination of the contract, or these terms of trade.

17.    Privacy act 1988

17.1. The client agrees for AF to obtain from a credit reporting agency a credit report containing personal credit information about the Client in relation to credit provided by AF

17.2. The Client agrees that AF may exchange information about the Client with those credit providers either named as trade referees by the Client, or named in a consumer credit report issued by a credit reporting agency for the following purposes:

17.2.1.     To assess an application by the Client

17.2.2.     To notify other credit providers of a default by the Client

17.2.3.     To exchange information with other credit providers as to the status of this credit account, where the client is in default with other credit providers

17.2.4.     To assess the creditworthiness of the Client