1Definitions and interpretation

2General

These Terms and Conditions (which can only be waived or varied in writing signed by the Seller and Buyer) will prevail over all conditions of the Buyer’s order, to the extent of any inconsistency.

3Acceptance

By supplying the Goods or any part thereof to the Site, the Buyer shall be taken to have accepted these Terms and Conditions and agree that these Terms and Conditions operate to the exclusion of any conditions asserted by the Buyer to apply to the supply of the Goods.

4Terms of sale

The Goods and all other products sold by Seller are sold on these Terms and Conditions

5Seller’s quotations

Unless previously withdrawn, Seller’s quotations are open for acceptance within the period stated in them or, when no period is so stated, within seven (7) days only after its date. The Seller reserves the right to refuse any order based on this quotation within seven (7) days after the receipt of the order.

6Packing

The cost of any special packing and packing materials used in relation to the Goods are at the Buyer’s expense, even if that cost has been omitted from any quotation.

7Shortage

The Buyer waives any claim for shortage of any Goods delivered if a claim in respect for short delivery has not been lodged with the Seller within seven (7) days from the date of receipt of Goods by the Buyer.

8Drawings, etc

Where specifications, drawings or other particulars are supplied by the Buyer for the purposes of the Goods order, the Seller’s price will be calculated on the basis of estimates of quantities required to provide the Goods as specified, drawn or otherwise particularised by the Buyer. If there are any adjustments in quantities above or below the quantities estimated by the Seller as set out in a quotation, then any such increase or decrease will be adjusted on a unit rate basis according to unit prices set out in this document or in the quotation.

9Performance

Any performance representations given by the Seller are estimates only and given in good faith. The Seller is under no liability for damages for failure of the Goods to perform in accordance with any performance representations made or given.

10Supply of Goods

• The Seller shall supply the Goods in accordance with the Purchase Order and, where applicable, all relevant plans, drawings and pecifications and all reasonable directions of the Buyer.

11Delivery

• The delivery times made known to the Buyer are estimates only and the Seller is not liable for late delivery or non-delivery.
• The Seller will not be liable for any loss, damage or delay occasioned to the Buyer or its customers arising from late or non-delivery or late installation of the Goods.
• The Seller may at its option deliver the Goods to the Buyer in any number of instalments unless there is a prior written agreement between the Buyer and the Seller that the Buyer will not take delivery by instalments.
• If the Seller delivers any of the Goods by instalments, and any one of those instalments is defective for any reason:
  • this does not constitute a repudiation of the contract of sale formed by these Terms and Conditions; and
  • the defective instalment is a severable breach that gives rise only to a claim for compensation, such compensation being limited to a re-supply of the instalment.

12Guarantee

• The Seller’s liability for Goods manufactured by it is limited to making good any defects. This must be done by repairing the defects or, at the Seller’s option, by replacement, within a period not exceeding one (1) calendar month after the Goods have been dispatched. This applies so long as:
  • the defects have arisen solely from faulty materials or workmanship;
  • the Goods have not received maltreatment, inattention or interference;
  • accessories of any kind used by the Buyer are manufactured by or approved by the Seller;
  • the seals of any kind on the Goods remain unbroken; and
  • the defective parts are promptly returned free of cost to the Seller.
• If the Goods are not manufactured by the Seller, the guarantee of the manufacturer of those Goods is accepted by the Buyer and is the only guarantee given to the Buyer for the Goods. The Seller agrees to assign to the Buyer on request made by the Buyer the benefit of any warranty or entitlement to the Goods that the manufacturer has granted to the Seller under any contract or by implication or operation of law to the extent that the benefit of any warranty or entitlement is assignable.
• The Seller is not liable for, and the Buyer releases the Seller from, any claims in respect of faulty or defective design of any Goods supplied. This is unless the design has been wholly prepared by the Seller and the responsibility for any claim has been specifically accepted by the Seller in writing.
• The Seller’s liability under clause 12(c) is limited strictly to the replacement of defective parts in accordance with clause 12(a) of these conditions
• Except as provided in these conditions, all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded. The Seller is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, layout, assembly, installation or operation of the Goods or arising out of the Seller’s negligence or in any way.

13Prices

• Unless otherwise stated all prices quoted by the Seller are exclusive of Goods and Services Tax (GST).
• Prices quoted are calculated at the date of issue of a relevant quotation and include rates provided by third parties providers. These third party rates include the cost of freight, insurance, customs duties, exchange, shipping penses, sorting and stacking charges, cartage, rate of water, cost of materials and other charges affecting the cost of production (Third Party Rates). Third Party Rates may vary slightly from the date of the quotation to the time of delivery of the Goods. The Buyer will be liable for any increase in the Third Party Rates.
• If the Seller makes any alterations to the price of the Goods or to any of their inputs either before acceptance of or during the currency of the contract, these alterations are for the Buyer’s account.

14Variation to Supply of Goods

• The Seller will not make any variation to the Purchase Order unless expressly directed in writing to do so by the Buyer
• The Buyer may, by giving a written direction, require the Seller to vary or change the specifications of the Goods. The price of any variation must be agreed in writing by the parties before any supply of the Goods and shall be added to or deducted from the price of the Goods (as the case may be).

15Payment

• Unless the Buyer is granted credit by the Seller, the purchase price for the Goods plus GST (where applicable) is payable on or before delivery of the Goods (Payment Due Date) unless other terms of payment are agreed in writing between the parties.
• Non collection of the purchase price by the Seller on or before delivery of the Goods is not regarded as an implied grant of credit.
• The Buyer must pay interest on any outstanding amount not paid by the Payment Due Date. Interest will be calculated at 14% per annum or such other rate as the Seller may nominate by notice to the Buyer from time to time. Interest will accrue daily from the Payment Due Date until the outstanding amount is paid in full.

16Rights in relation to Goods

• Prior to title in the Goods passing to the Buyer under the terms of this agreement, the Buyer agrees that:
  • the Buyer has no right or claim to any interest in the Goods to secure any liquidated or unliquidated debt or obligation the Seller owes to the Buyer;
  • the Buyer cannot claim any lien over the Goods;
  • the Buyer will not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by the Seller; and
  • where the Buyer is in actual or constructive possession of the Goods:
    • the Buyer will not deliver them or any document of title to the Goods to any person except as directed by the Seller;
    • it is in possession of the Goods as a bailee of those Goods and owes the Seller the duties and liabilities of a bailee; and
    • the Seller can retake possession of the Goods and the Buyer must grant access to the Seller to take possession of the Goods.
• In connection with the Goods, the Seller states to the Buyer that:
  • the Seller has the right to supply the Goods to the Buyer;
  • the activities of the Seller in supplying the Goods do not infringe the rights of the owner of the Goods (where the Seller is not the owner of the Goods); and
  • if the Goods are not owned by the Seller, the Seller is authorised to supply the Goods to the Buyer.
• The Seller and the Buyer agree that:
  • the property of the Seller in the Goods remains with the Seller until the Seller has been paid in full for the Goods under all individual contracts for the supply of the Goods between the Seller and the Buyer;
  • the Buyer is a bailee of the Goods until such time as property in them passes to the Buyer and that this bailment continues in relation to each of the Goods until the price of the Goods has been paid in full to the Seller; and
  • pending payment in full for the Goods, the Buyer:
    • must not supply any of the Goods to any person outside of its ordinary or usual course of business;
    • must insure the Goods for their full insurable or replacement value (whichever is the higher) with an insurer licensed or authorised to conduct the business of insurance in the place where the Buyer carries on business; and
    • must not remove, deface or obliterate any identifying plate, mark or number on any of the Goods.
• If the Buyer supplies any of the Goods to any person before all moneys payable by the Buyer have been paid to the Seller, the Buyer agrees that:
  • it holds the proceeds of resupply of the Goods on trust, and as agent, for the Seller immediately when they are receivable or are received;
  • it must either pay the amount of the proceeds of re-supply to the Seller immediately when they are received or pay those proceeds into an account with a bank or a financial institution or deposit-taking institution as trustee for the Seller;
  • any accessory or item which accedes to any of the Goods by an act of the Buyer or of any person at the direction or request of the Buyer becomes and remains the property of the Seller until the Seller is paid in accordance with clause (i) when the property in the Goods (including the accessory) passes to the Buyer; and
  • if the Buyer fails to pay for the Goods within the period of credit (if any) extended by the Seller to the Buyer, subject to, and in accordance with, the Personal Property Securities Act 2009 (Cth), the Seller may recover possession of the Goods at any site owned, possessed or controlled by the Buyer and the Buyer agrees that the Seller has an irrevocable licence to do so.

17Security

• As security for the Buyer’s obligations and liabilities under these terms and conditions the Buyer hereby charges all of the Buyer’s legal and equitable interest (both present and future) of whatsoever nature in any real and personal property, for the due and punctual payment and performance of all of the Buyer’s obligations pursuant to this agreement.
• Without limiting the generality of the charge in this clause, the Buyer agrees, on the Seller’s request, to execute any documents and do all things necessarily required by the Seller to register a mortgage security or other instrument of security over any real and personal property and in the event that the Buyer fails to do so within a reasonable time of being so requested, the Buyer irrevocably and by way of security, appoints any credit manager, director or lawyer engaged by the Seller to be the Buyer’s true and lawful attorney to execute and register such instruments.
• The Buyer indemnifies the Seller on an indemnity basis against all costs and expenses incurred by the Seller in connection with the preparation and registration of any such charge, caveat and mortgage documents.
• The Buyer also consents unconditionally to the Seller lodging a caveat or caveats noting the Seller’s interest in any of the Buyer’s real property.

18Buyer’s property

Any property of the Buyer under the Seller’s possession, custody or control is completely at the Buyer’s risk as regards loss or damage caused to the property or by it.

19Storage

The Seller reserves the right to charge a reasonable fee for storage if delivery instructions are not provided by the Buyer within one (1) day of a request by the Seller for such instructions. The parties agree that the Seller may charge for storage from the first day after the Seller requests the Buyer to provide delivery instructions.

20Returned Goods

• Except for any provisions to the contrary contained in this agreement, the Seller is not under any duty to accept Goods returned by the Buyer. The Seller will do so only on terms to be agreed in writing in each individual case.
• If the Seller agrees to accept returned Goods from the Buyer under clause 20(a), the Buyer must return the Goods to the Seller at the Seller’s place of business referred to in the invoice at the Buyer’s cost.

21Goods Sold

All Goods to be supplied by the Seller to the Buyer are as described on the Purchase Order agreed by the Seller and the Buyer and the description on such Purchase Order as so agreed prevails over all other descriptions of the Goods including any specification or enquiry of the Buyer.

22Cancellation

No order may be cancelled by the Buyer except with the written consent of the Seller. If there is a cancellation of the order by the Buyer, the Seller has the right to claim an indemnity against all losses suffered by the Seller as a result of such cancellation.

23Personal Property Securities Act (Cth) 2009 (PPSA)

• This agreement is a security agreement.
• The interest of the Seller in the Goods and all proceeds from the sale of the Goods by the Buyer to a third party is a security interest.
• The Buyer consents to the Seller registering its security interest on the Personal Property Securities Register and agrees to provide all assistance reasonably required by the Seller to facilitate registration.
• Until title in the Goods has passed to the Buyer as contemplated by clause 17 of this agreement, the Buyer agrees not to in any way assign, charge, lease or otherwise deal with the Goods in such a manner as to create, a security interest over, the Goods in favour of the Buyer or any third party, The parties agree that this clause will not prohibit the Buyer from selling the Goods in the ordinary course of business.
• The Buyer waives its rights to receive any notice under PPSA (including notice of verification statement) unless the notice is required by the PPSA and cannot be excluded.
• The Seller and Buyer agree that this agreement and all related information and document(s) are confidential (Confidential Information) and will not be disclosed to unauthorised representatives or third parties, except to the extent disclosure is permitted by this agreement or required by law. The Seller and Buyer agree that the Seller will not disclose the Confidential Information pursuant to a request under section 275(1) of the PPSA.
• Unless the Goods are used predominantly for personal, domestic or household purposes, the Seller and the Buyer agree each of the following requirements or rights under the PPSA do not apply to the enforcement of the Seller’s security interest in the Goods or of this agreement:
  • any requirement for the Seller to give the Buyer a notice of removal of accession;
  • any requirement for the Seller to give the Buyer a notice of the Seller’s proposed disposal of the goods;
  • any requirement for the Seller to include in a statement of account, after disposal of the Goods, the details of any amounts paid to other secured parties;
  • any requirement for the Seller to give the Buyer a statement of account if the Seller does not dispose of the Goods;
  • any right the Buyer has to redeem the Goods before the Seller exercises a right of disposal; and
  • any right the Buyer has to reinstate this agreement before the Seller exercises a right of disposal of the Goods.
• Expressions defined in the PPSA have the same meaning when used in this agreement.

24Termination

• This agreement will automatically terminate if a party enters into any composition or arrangement with its creditors or has a receiver appointed over any of its assets or is the subject of any resolution or petition for winding up or judicial management (other than for the purpose of amalgamation or reconstruction).
• Either party may terminate this agreement if the other party is in material breach of any of its obligations under this agreement and if the breach is capable of remedy fails to remedy the breach for a period of seven (7) days after receipt of a written notice by the other party requiring rectification of the breach.
• Exercise of the right of termination afforded to either party under this clause will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of this agreement.
• The obligations of the parties that by their nature could reasonably construed as being intended to continue to apply beyond the termination of this agreement will continue to apply.

25Place of contract

This agreement is governed by and construed in accordance with Western Australia law. The parties submit to the non-exclusive jurisdiction of the courts and tribunals of the governing law jurisdiction. Nothing in this clause is intended to undermine the jurisdiction of the Federal Court of Australia or Federal Magistrates Court of Australia.

26Credit

• This clause only applies if the Seller accepts any order for Goods from the Buyer on credit.
• The Buyer has no entitlement to credit unless, in the Seller’s sole discretion, the Seller extends credit to the Buyer.
• The Seller will reserve the right to, at any time and for any reason at the Seller’s sole discretion, refuse the supply of any further Goods to the Buyer on credit terms. This applies regardless of whether the Seller has allowed the Buyer to purchase Goods on credit at any particular time. If at any time the Seller does refuse to grant the Buyer credit for the purchase of Goods, this refusal does not affect the credit terms applicable to any amounts the Buyer then owes the Seller for previous purchases.
• If the Buyer fails to comply with these terms or fails to pay any amount to the Seller when due, or becomes insolvent or bankrupt, the balance of the Buyer’s account will become due and payable immediately.

27Costs

All reasonable costs, expenses and disbursements incurred by the Seller (including debt collection agency fees and legal costs on an indemnity basis) arising from or incidental to the Seller exercising a right under these Terms and Conditions of Sale or arising from a default, are payable by the Buyer upon demand.

28Site Work

If the Goods includes any services to be performed on the Buyer’s premises or site then the Buyer agrees that the Buyer indemnifies the Seller against all losses, claims, costs, demands, liabilities and expenses which may be suffered, sustained or incurred by the Seller directly or indirectly, as a result of or in respect of the Seller undertaking any services at the Buyer’s premises or site as referred to or contained in the purchase order or invoice, or in any schedule or any other document or instrument in connection with these Terms and Conditions.

29Force Majeure

Thejo will not be deemed to be in breach of a contract, or otherwise liable to the customer, by reason of delay in performance due to any circumstances beyond the reasonable control of Thejo including without prejudice to the generality of the foregoing, any international disturbances, war, strikes, lockouts, fire, riot, pandemic, flood, and including inability to procure materials or articles except at increased prices due to any of the above.

30Other Terms

• If any provision of these Terms or Conditions is unenforceable, illegal or void, that provision is severed and other provisions remain in force.
• If the Buyer consists of more than one person or entity then all individuals or entities are bound jointly and severally.
• These Terms and Conditions of Sale and any agreement is governed by the Laws of the State of Western Australia.
• The Buyer acknowledges that if the Buyer is a trustee of any trust or trusts, the Buyer is contracting with the Seller both in their capacity as trustee of that trust or trusts (and are entitled to be indemnified out of the assets of those trusts with respect to the Buyer’s obligation to the Seller AND in the Buyer’s own capacity beneficially.
• The Buyer must no later than fourteen (14) days prior to any proposed change of ownership, shareholding, effective control or directors of the Buyer notify the Seller of the proposed change.