1. Application of these Terms
1.1 These Terms and Conditions of Supply (Terms) govern every supply of goods and related services (Goods) by Armourseal Pty Ltd (ABN 84682692977) (we, us, our) to any purchaser (you, Buyer), unless we agree otherwise in writing.
1.2 Each order we accept, together with these Terms, forms a separate, legally binding agreement (Agreement) between you and us. Any later supply does not create a new set of terms unless we expressly agree in writing.
1.3 Your own terms and conditions (if any) are expressly rejected and do not apply, even if they are referred to in your purchase order or other documents, unless we accept them in writing.
2. Definitions
In these Terms, unless the context requires otherwise:
Buyer means the person, company or other entity that purchases or agrees to purchase
Goods from us.
Consequential Loss includes, without limitation, loss of profit, revenue, business, opportunity, goodwill, anticipated savings, use, data, increased costs or expenses, and any indirect or special loss or damage, and any loss arising from third party claims.
Force Majeure Event means any event or circumstance beyond our reasonable control, including but not limited to acts of God, fire, flood, storm, explosion, war, terrorism, civil disturbance, strikes, lockouts, industrial disputes, pandemics, government restrictions or directions, breakdown of plant or equipment, transport or supply chain interruptions, or failures of utilities or communication systems.
Goods means all products, membranes, coatings, accessories, primers, detailing components and any related services supplied by us to you from time to time.
Intellectual Property Rights means all rights (registered or unregistered) in relation to copyright, designs, patents, trademarks, circuit layouts, confidential information, trade secrets, know-how and any other intellectual property.
PPSA means the Personal Property Securities Act 2009 (Cth), as amended or replaced.
Purchase Price means the price payable for the Goods in accordance with clause 4.
3. Orders and Acceptance
3.1 Any quotation issued by us is an invitation to treat only. It is not an offer and may be withdrawn or varied at any time.
3.2 Your placement of an order is deemed to be an offer to purchase the Goods in accordance with these Terms. We may accept or reject any order in whole or in part, in our absolute discretion.
3.3 An order is taken to be accepted when we:
a) issue a written acceptance; or
b) dispatch or deliver the Goods, whichever occurs first.
3.4 Once accepted, you may not cancel or vary an order unless we agree in writing. We may make our consent conditional on you paying reasonable charges, including for restocking or materials already procured.
3.5 Orders are subject to availability. We may suspend or discontinue the supply of any Goods without liability. If we cannot supply the full quantity ordered, these Terms still apply to any part of the order supplied.
4. Pricing and Adjustments
4.1 Unless we have provided a written quotation stating otherwise, the Purchase Price will be our price current at the date of dispatch, as set out in our price list or other pricing communication.
4.2 Unless expressly stated, all prices are exclusive of GST and any other taxes, duties, levies, freight and insurance, which you must pay in addition.
4.3 We may update our prices at any time, including to reflect changes in exchange rates, raw material costs, freight, duties, taxes or other input costs. Updated prices apply to all orders not yet accepted.
4.4 We may correct any clerical or calculation errors in quotations, invoices or statements, and you agree to pay any shortfall or are entitled to a credit for any overpayment.
5. Delivery, Risk and Inspection
5.1 Unless we agree otherwise in writing, delivery takes place when the Goods are:
a) collected by you or your nominated carrier from our premises; or
b) unloaded at the delivery address you nominate (if we have agreed to arrange delivery), whichever occurs first.
5.2 Risk in the Goods passes to you on delivery. You are responsible for insuring the Goods from that time.
5.3 Any delivery timeframes we provide are estimates only. We are not liable for any loss, damage or Consequential Loss arising from delay or failure to deliver, and you must still accept and pay for the Goods when delivered. We may deliver in instalments.
5.4 You must inspect the Goods as soon as reasonably practicable following delivery.
5.5 To the maximum extent permitted by law, any claim that the Goods are damaged, short delivered or otherwise not in accordance with the Agreement must be notified to us in writing within 48 hours of delivery. If you do not give notice within that time, the Goods are deemed to be accepted.
6. Returns
6.1 We are not obliged to accept returns where you change your mind, order incorrectly, or no longer require the Goods.
6.2 We may, in our discretion, agree to accept Goods for return, subject to:
a) the Goods being returned within 30 days of delivery;
b) the Goods being unused, in original, resalable condition and packaging; and
c) you paying any reasonable handling, restocking or freight charges we specify.
6.3 Custom-tinted, custom-packed, specially manufactured or non-standard Goods will not be accepted for return unless required by law.
7. Payment Terms
7.1 If you hold an approved credit account with us, payment for all Goods is due strictly 30 days from the end of the month of invoice, unless we agree otherwise in writing.
7.2 If you do not have an approved credit account, payment is required prior to or on delivery of the Goods.
7.3 All amounts must be paid in full without set-off, deduction or counterclaim.
7.4 If you fail to pay any amount when due, exceed your credit limit, or an insolvency event occurs (or we reasonably believe is likely to occur), we may, without prejudice to any other rights:
a) charge you an administration fee for late payment;
b) charge interest on overdue amounts at a commercial rate we reasonably nominate, calculated daily from the due date until payment;
c) vary, suspend or withdraw any credit terms or credit limit;
d) suspend or cancel any further supply;
e) terminate any other agreement with you and demand immediate payment of all amounts then outstanding;
f) enter any premises where Goods may be located to inspect, identify and/or repossess Goods in which title has not passed; and
g) recover from you all costs of collection, enforcement and legal fees on a full indemnity basis.
7.5 Where an invoice is partly disputed, you must promptly pay the undisputed portion.
7.6 Unless we direct otherwise, payments received from you will be applied:
a) first, to our recovery and legal costs;
b) second, to any interest and administration charges; and
c) third, to the oldest outstanding invoices.
8. Retention of Title and PPSA
8.1 Title to the Goods will not pass to you until we have received payment in full for all Goods supplied to you (and for all other money owing to us by you, if we elect).
8.2 Until title passes:
a) you hold the Goods solely as our fiduciary bailee and must store them separately and clearly identified as our property;
b) you must keep the Goods safe, insured and in good condition; and
c) you may use or resell the Goods in the ordinary course of business, as principal (not as our agent), provided that you hold the proceeds (including insurance proceeds) on trust for us to the extent of the amount you owe us, and must account to us for those proceeds on request.
8.3 You grant us a security interest under the PPSA in all Goods we supply to you, and in all proceeds of sale of those Goods, to secure payment of all amounts you owe us.
8.4 You agree that we may register one or more financing statements or financing change statements to perfect our security interest, and you will do all things reasonably required to assist us.
8.5 To the extent permitted by the PPSA, you:
a) waive your rights to receive certain notices, including any notice of verification statements; and
b) agree that certain provisions of the PPSA do not apply to these Terms to the extent permitted by law.
8.6 If you mix, transform or use the Goods in manufacturing or in combination with other items, our security interest will extend to any resulting product and its proceeds.
9. Formulations, Technical Information and Intellectual Property
9.1 All formulations, system specifications, technical data, drawings, artwork, application methodologies, product names and branding developed or supplied by us remain our exclusive property, together with all associated Intellectual Property Rights.
9.2 You must not reproduce, reverse engineer, disclose or use our Intellectual Property for any purpose other than using or reselling the Goods in the ordinary course of your business.
9.3 If you provide us with any specifications, drawings, formulas or instructions, you are solely responsible for their accuracy and suitability. You warrant that our use of them will not infringe the rights of any third party, and you indemnify us against any claim, loss, costs or liability arising from their use.
9.4 This clause 9 survives expiry or termination of the Agreement.
10. Product Use, Suitability and Technical Advice
10.1 You are responsible for ensuring that the Goods, and any system incorporating the Goods, are suitable for your intended use, site conditions, substrates and design.
10.2 Any technical information, recommendations, application details or design suggestions we provide (including datasheets, specifications, drawings and on-site comments) are given in good faith based on information you supply and general conditions. They are of a general nature only and do not replace project-specific engineering, architectural design or independent testing.
10.3 You must ensure that installation is carried out strictly in accordance with:
a) our latest technical data sheets and installation instructions;
b) relevant Australian Standards, NCC/BCA requirements and any applicable manufacturer or project specifications; and
c) all applicable laws and regulatory requirements.
10.4 We are not responsible for any failure or defect arising from:
a) improper storage, handling or mixing;
b) use of expired or contaminated products;
c) use with incompatible materials or non-approved systems;
d) application outside specified product limitations or environmental conditions; or
e) installation by unqualified personnel or contrary to industry good practice.
11. Warranties and Limitation of Liability
11.1 Nothing in these Terms excludes, restricts or modifies any non-excludable rights you may have under the Competition and Consumer Act 2010 (Cth) or other applicable laws (Non-Excludable Rights).
11.2 Subject to your Non-Excludable Rights and to any written warranty we expressly provide for a particular product or system, and to the maximum extent permitted by law:
a) we give no other warranties, representations or guarantees, express or implied, as to the
quality, performance, durability or fitness for purpose of the Goods; and
b) all other terms, conditions and warranties are excluded.
11.3 Where our liability in relation to Goods or services cannot be excluded but can be limited, our liability is limited at our option to:
a) in the case of Goods:
i. repair or replacement of the Goods;
ii. supply of equivalent goods; or
iii. payment of the cost of repair, replacement or acquisition of equivalent goods; and
b) in the case of services:
i. supplying the services again; or
ii. paying the cost of having the services supplied again.
11.4 To the maximum extent permitted by law, we are not liable for any Consequential Loss, whether arising in contract, tort (including negligence), statute or otherwise, even if we have been advised of the possibility of such loss.
11.5 To the extent permitted by law, any liability we do have to you will be reduced to the extent that your acts or omissions, or the acts or omissions of third parties, contributed to the loss or damage.
12. Force Majeure
12.1 We will not be liable for any delay or failure to perform our obligations under these Terms where that delay or failure is caused or contributed to by a Force Majeure Event.
12.2 If a Force Majeure Event occurs, we may:
a) suspend performance of our obligations for the duration of the event; or
b) if the event materially affects our ability to perform in a commercially reasonable way, terminate the Agreement (in whole or in part) by written notice to you,
without liability for any loss arising from that suspension or termination.
13. Indemnity
13.1 To the extent permitted by law, you indemnify us and our officers, employees and agents against all loss, damage, costs (including legal costs on a full indemnity basis), expense or liability we suffer or incur arising out of or in connection with:
a) your breach of these Terms or any Agreement;
b) your negligence or wilful misconduct; or
c) any claim by a third party relating to your use, resale, installation or incorporation of the Goods into any structure or system.
13.2 This indemnity survives expiry or termination of the Agreement.
14. General
14.1 These Terms contain the entire agreement between you and us in relation to their subject matter, and supersede any prior negotiations, representations, understandings or agreements, unless we expressly agree otherwise in writing.
14.2 If any provision of these Terms is held to be invalid, illegal or unenforceable, that provision will be severed and the remaining provisions will continue in full force.
14.3 A waiver of any right or remedy by us must be in writing and signed on our behalf. A failure or delay to exercise a right does not operate as a waiver.
14.4 We may amend these Terms from time to time by publishing the updated version on our website or by notifying you. The updated Terms will apply to all orders placed after the date of publication.
14.5 These Terms are governed by the laws of New South Wales, Australia, and each party submits to the non-exclusive jurisdiction of the courts of New South Wales and any courts entitled to hear appeals from them