terms and conditions
TERMS AND CONDITIONS OF SUPPLY – Duram (Supplier)
These Terms and Conditions of Supply (Terms) apply (unless otherwise previously agreed in writing) to the Supply of Goods by Duram to a Buyer from time to time. Any supply of Goods by Duram to the Buyer made after the date of acceptance of these Terms is a supply pursuant to the supply agreement constituted by these Terms and the relevant order accepted by Duram (Agreement) and any such supply does not give rise to a new separate agreement.
In these Terms, unless the contrary intention appears:
Buyer means the person to or for whom the Goods are to be supplied by Duram.
Consequential Loss means increased costs or expenses; loss of revenue; loss of profit or anticipated profit; loss of business; loss of business reputation; loss of opportunities; loss of anticipated savings; loss of goodwill; loss or expense resulting from a claim by a third party; special or indirect loss or damage of any nature whatsoever caused by Duram’s failure to complete or delay in completing the order to deliver the Goods; and any other loss suffered by a party as a result of a breach of this Agreement that cannot reasonably be considered to arise directly and naturally from that breach.
Force Majeure Event means any event outside the reasonable control of Duram including acts of God, war, riots, strikes, lock outs, trade disputes, break downs, mechanical failures, interruptions of transport, government action, pandemic, epidemic or any other cause whatsoever, whether or not of a like nature to those specified herein.
Goods means the goods sold to the Buyer by Duram and includes any services provided by Duram to Buyer.
Intellectual Property Rights means all current and future registered and unregistered rights in respect of patents, copyright, designs, circuit layouts, trademarks, trade secrets, know-how, confidential information, invention and discoveries.
PPSA means the Personal Property Securities Act 2009 (Cth).
Purchase Price means the list price for the goods as charged by Duram at the date of delivery or such other price as may be specified by Duram in a quotation provided to the Buyer.
2. Orders, Quotations and Price
2.1 Quotations made by Duram are not an offer or obligation to supply in accordance with the quotation. An order given to Duram is binding on Duram and the Buyer if:
(a) a written acceptance is signed for or on behalf of Duram; or
(b) the Goods are supplied by Duram in accordance with the order.
2.2 An acceptance of the order by Duram is then to be an acceptance of these Terms by Duram and the Buyer and these Terms will override any conditions contained in the Buyer’s order. Duram reserves the right to accept a part only of any order by notifying the Buyer in writing or by delivering the Goods to the Buyer. No order is binding on Duram until accepted by it.
2.3 An order which has been accepted in whole or in part by Duram cannot be cancelled by the Buyer without obtaining the prior written approval of Duram, which it may refuse in its absolute discretion.
2.4 The supply of Goods is subject to availability. Duram reserves the right to suspend or discontinue the supply of Goods to the Buyer without any liability whatsoever. If Duram is unable to supply all of the Buyer’s order these Terms continue to apply to any of the order supplied.
2.5 Subject to clause 2.6, where a written quotation has been given by Duram, the Purchase Price is the price specified in the quotation. In any other case, the Purchase Price is the price specified in Duram’s price list as at the date of despatch of the Goods. Unless otherwise stated, the Purchase Price does not include GST.
2.6 Duram may at any time change a quoted price and its price list at any time to reflect, among other things, changes in exchange rates or the imposition of any duties, levies or other taxes and the Buyer is bound by those changes. The Buyer must accept any corrections to errors or omissions in invoicing and, where applicable, the Buyer must accept the amended pricing and pay the difference within the approved terms of trade.
3.1 Unless otherwise agreed in writing by Duram, delivery is at Duram’s premises. All freight from Duram’s premises to the Buyer is at the Buyer’s expense. If Duram arranges the carriage of the Goods for delivery to the Buyer, Duram will be deemed to contract as agent for the Buyer, and the Buyer will bear all risks with respect to the Goods during carriage and will likewise be responsible for effecting any insurance of the Goods during carriage. Duram may charge a reasonable handling fee for all Goods delivered to the Buyer. The Buyer indemnifies Duram for the cost of all transport arranged by Duram on the Buyer’s behalf.
3.2 Times quoted for delivery are estimates only and Duram accepts no liability for failure or delay in delivery of Goods. The Buyer is not relieved of any obligation to accept or pay for Goods by reason of any delay in delivery. Goods may be delivered by instalments at Duram’s discretion.
4. Inspection, Acceptance and Returns
4.1 The Buyer must inspect the Goods immediately following delivery or completion of the services (as the case may be).
4.2 To the extent permitted by law:
(a) the Buyer may only return goods with the prior approval of Duram and within 7 days of the date of delivery in re-saleable condition and, where appropriate, in the original packaging; and
(b) no change of mind returns will be accepted for any custom product (customised by colour, quantity, or any other non-standard attribute).
4.3 A reasonable handling fee for any returned Goods may be charged to the Buyer.
4.4 To the maximum extent permitted by law, any claim that the Goods are not in accordance with these Terms (including if they are defective, damaged during delivery, are short delivered or not as per the Agreement) must be made at the time of delivery of the Goods, or in writing to Duram within 48 hours after delivery of the Goods or where the Goods are services on completion of the services, otherwise they will be deemed to have been accepted.
5.1 Unless otherwise agreed, if the Buyer has an approved credit account with Duram, the Buyer must pay for Goods ordered by the Buyer, and any administrative charge under this clause, within 30 days from end of month, or earlier if the approved credit limit is exceeded. Where the Buyer does not have a credit account with Duram, all Goods and any administrative charge under this clause are to be paid for at or before the time of delivery. Duram may charge an administration fee for any payments by credit card. Time is of the essence in respect of the Buyer’s obligation to make payment for goods or services supplied by Duram to the Buyer. All amounts payable by the Buyer under these Terms must be paid without set-off or counter claim of any kind.
5.2 If the Buyer does not make any payment by the due date, exceeds its credit limit at any time, commits any other material breach of these terms and conditions, or an insolvency event in respect of the Buyer arises or is reasonably suspected by Duram, Duram may (without limiting any other right or claim it may have against the Buyer) do any or all of the following:
(a) charge the Buyer an administration fee of 10% of the outstanding invoice or such other reasonable administration fee;
(b) charge the Buyer interest calculated on a daily basis on any portion of the Buyer’s account that is overdue at the rate of 10% per annum calculated from the date the payment was due until the date payment is made (both dates inclusive);
(c) vary or withdraw any approved credit limit and/or terms of trade including cancelling any rebate, discount or allowance due or payable by Duram as at the date of the event;
(d) cancel or suspend any unfilled orders or cease providing Goods;
(e) terminate any contracts between the Duram and the Buyer and demand immediate payment of any moneys due and outstanding under those contracts;
(f) enter (at any time) any premises in which the Duram’s Goods (including any merchandising materials) are stored, to enable Duram to inspect the Goods and to reclaim possession of the Goods without liability for the tort of trespass, negligence or payment of any compensation to the Buyer whatsoever; or
(g) institute any recovery process as Duram in its discretion decides, at the Buyer’s cost and expense on a full indemnity basis.
5.3 The Buyer acknowledges and agrees that all payments will be applied by Duram as follows:
(a) firstly, in payment of any and all collection costs and legal costs in accordance with clause 5;
(b) secondly, in payment of any interest and administration fee incurred in accordance with clause 5; and
(c) thirdly, in payment of the outstanding invoice(s).
5.4 If any part of an invoice is in dispute, the balance will remain payable and must be paid when due.
6. Building and Construction Industry Security of Payment Legislation
6.1 The Buyer acknowledges and agrees that:
(a) Duram may, from time to time, serve payment claims in accordance with the Building and Construction Industry Security of Payment Act 1999 (NSW)(BCISPA) on the Buyer for goods and services supplied in New South Wales;
(b) Duram may, from time to time, serve payment claims on the Buyer for goods and services supplied outside of New South Wales, in accordance with the relevant Building and Construction Industry Payment Act of the State or Territory in which they were supplied; and
(c) each invoice issued by the Supplier gives rise to a separate construction contract.
7. Risk and Title
7.1 Goods supplied by Duram to the Buyer are at the Buyer’s risk immediately on the earlier of:
(a) delivery to the Buyer; or
(b) delivery into the Buyer’s custody, including its carrier or forwarder.
7.2 The Buyer must insure the Goods at its cost from delivery of the Goods until they are paid for in full against such risks as are usual or common to insure against in a business of a similar nature to the Buyer.
7.3. Title in the Goods supplied by Duram to the Buyer does not pass to the Buyer until all Goods have been paid for in full. In the meantime, the Buyer takes custody of the goods and retains them only as fiduciary agent and bailee of Duram. Until all goods have been paid for in full:
(a) to the extent possible, the Buyer must store the Goods in a manner that shows clearly they are the property of Duram, maintain records relating to the Goods, secure the goods from risk, damage and theft and ensure that the Goods are kept in good and serviceable condition;
(b) the Buyer may sell the Goods, in the ordinary course of its business, but only as fiduciary agent of Duram. The Buyer must not represent to any third party that the Buyer is acting in any capacity for or on behalf of Duram and the Buyer has no authority to bind Duram to any contract or otherwise assume any liability for or on behalf of Duram. The Buyer receives all proceeds (including any proceeds from insurance claims) in trust for the Supplier and must keep the proceeds in a separate bank account until all liability to the Supplier is discharged; and
(c) if the Buyer uses the goods in some manufacturing process of its own or of a third party, the Buyer must hold in trust for Duram that part of the proceeds of the manufacturing process as is equal to the amount owing by the Buyer to Duram at the time of receipt of the proceeds.
7.4 Separately, the Buyer hereby charges all its right, title and interest to and in the proceeds of sale of Collateral (as defined in the PPSA) as original collateral, or any of it, in favour of Duram.
8.1 Defined terms in this clause have the same meaning as given to them in the PPSA.
8.2 Duram and the Buyer acknowledge that these Terms constitute a Security Agreement and entitle Duram to claim:
(a) A Purchase Money Security Interest (PMSI) in favour of Duram over the Collateral supplied or to be supplied by Buyer as Grantor pursuant to these Terms; and
(b) a security interest over the proceeds of sale of the Collateral referred to in clause 7.4 as original collateral.
8.3 The goods supplied or to be supplied under these Terms fall within the PPSA classification of ”Other Goods” acquired by the Buyer pursuant to these Terms.
8.4 The Proceeds of sale of the Collateral referred to in clause 8.2(b) falls within the PPSA classification of “Account”.
8.5 Duram and the Buyer acknowledge that Duram, as Secured Party, is entitled to register its Security Interest in the Collateral supplied or to be supplied to Buyer pursuant to these Terms and in the relevant Proceeds.
8.6 To the extent permissible at law, the Buyer:
(a) waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Buyer to Duram.
(b) agrees to indemnify Duram on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the:
(i) registration or amendment or discharge of any Financing Statement by or on behalf of Duram; and
(ii) enforcement or attempted enforcement of any Security Interest granted by Duram by the Buyer;
(c) agrees that nothing in sections 130 and 143 of the PPSA will apply to these Terms or the Security under these Terms;
(d) agrees to waive its right to do any of the following under the PPSA:
(i) receive notice of removal of an Accession under section 95;
(ii) receive notice of an intention to seize Collateral under section 123;
(iii) object to the purchase of the Collateral by the Secured Party under section 129;
(iv) receive notice of disposal of Collateral under section 130;
(v) receive a Statement of Account if there is no disposal under section 132(4);
(vi) receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
(vii) receive notice of retention of Collateral under section 135;
(viii) redeem the Collateral under section 142; and
(ix) reinstate the Security Agreement under section 143.
8.7 All payments received from the Buyer must be applied in accordance with section 14(6)(c) of the PPSA.
9. Formulations, Specifications and Instructions
9.1. Duram will retain ownership of all Intellectual Property Rights in relation to all formulations and specifications prepared by it for or on behalf of the Buyer, despite any payment made in accordance with these terms of sale.
9.2 If required, the Buyer agrees to assign all Intellectual Property Rights in any formulations and specifications to Duram or its nominated entity. The Buyer also agrees to ensure that its employees and contractors execute all documents and do all things necessary to give effect to this clause 9.2.
9.3 Duram is not responsible for the accuracy, performance or suitability for purpose of any formulation, specification, information or instruction provided by the Buyer. The Buyer is responsible for the accuracy of any formulation, specification, information or instruction provided for use by Duram. Where Duram has followed any formulation, specification, information or instruction furnished by or on behalf of the Buyer, the Buyer indemnifies and will keep Duram indemnified against all claims, damages, losses, penalties, costs and expenses to which Duram may become liable by reason of using or following the formulation, specification, information or instruction, including any infringement of any patent, registered design, trademark, copyright or any other right of a third party, including moral rights.
9.4 This clause survives termination or expiration of this Agreement.
10. Limitation of Liability
10.1 To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms or in another warranty document given by Duram are excluded and Duram is not liable in contract, tort (including without limitation, negligence or breach of statutory duty) or otherwise to compensate the Buyer for:
(a) any increased costs or expenses;
(b) any loss of profit, revenue, business, contracts or anticipated savings;
(c) any loss or expense resulting from a claim by a third party; or
(d) Any special, indirect, or Consequential Loss or damage of any nature whatsoever caused by Duram’s failure to complete or delay in completing the order to deliver the Goods.
10.2 Where legislation implies in these Terms any condition or warranty that cannot be excluded or modified, to the extent permitted by law the liability of the Duram for a breach of any such condition or warranty is limited at the Duram’s option to any one or more of the following:
(a) In the case of Goods:
(i) replacement of the goods or the supply of equivalent goods;
(ii) The repair of goods;
(iii) the payment of the cost of replacing the goods or acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired.
(b) Where the Goods are services:
(i) the supply of service again; or
(ii) the payment of the cost of having the services supplied again.
11. Force Majeure
11.1 Duram will not be liable for the consequences of any failure or delay in performing any of its obligations under these Terms to the extent that such failure or delay is due directly or indirectly to any Force Majeure Event.
11.2 If a Force Majeure Event arises, Duram will notify the Buyer in writing of the Force Majeure Event and the likely impact it will have on the performance under these Terms. If the Force Majeure Event affects the capacity of Duram to complete its material obligations under these terms in a timely manner, Duram may by notice to the Buyer terminate this Agreement without any liability whatsoever on its part arising from that termination.
To the full extent permitted by law, Buyer will indemnify Duram and keep Duram indemnified from and against any liability and any loss or damage Duram may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms Buyer or its representatives
13. Trustee Capacity
If Buyer is the trustee of a trust (whether disclosed to Duram or not), Buyer warrants to Duram that:
(a) Buyer enters into this Agreement in both its capacity as trustee and in its personal capacity;
(b) Buyer has the right to be indemnified out of trust assets;
(c) Buyer has the power under the trust deed to enter into this Agreement; and
(d) Buyer will not retire as trustee of the trust or appoint any new or additional trustee without first advising Duram.
14. Other Terms
14.1 Neither party excludes or limits the application of any statute (including but limited to the Competition and Consumer Act (Cth) as amended from time to time and its schedule 2, the Australian Consumer Law) where to do so would contravene that statute or cause a provision of these Terms to be void. Any states exclusion or limitation in these Terms is only to the full extent permitted by law.
14.2 This Agreement contains the entire understanding of the parties as to its subject matter. There is no other understanding agreement, warranty or representation whether express or implied in any way defining or extending or otherwise relating to these provisions or binding on the parties with respect to the goods of their operation. The application of the United Nations Convention on Contracts for the International Sale of Goods (known as the Vienna Sales Convention 1980) is excluded. If any provision of these terms or conditions is unenforceable, illegal or void, that provision is severed and the other provisions remain in force.
14.3. Duram may amend or vary these terms and conditions by notifying the Buyer in writing of the amendment or variation.
14.4 No waiver of these Terms or failure to exercise a right or remedy by Duram will be considered to imply or constitute a further waiver by Duram of the same or any other term, condition, right or remedy.
14.5 The laws of New South Wales, Australia apply to these terms and conditions. The parties irrevocably submit to the non-exclusive jurisdiction of the courts of New South Wales.