(1) TERMS & CONDITIONS - QUOTATION & CONTRACT OF SALE (APPLICABLE TO ALL CUSTOMERS)

(1) DEFINITIONS

In the interpretation of this Agreement the following words shall have or shall include the following meanings:                                                              “Authorised Supplier” means that person, partnership, company or firm which supplies the Seller with goods for sale and/or distribution.                                 “The goods” means all merchandise stores being industrial fasteners and engineers tools etc.                                                                                                             “The Purchaser” means that person, partnership, company, firm, government department or instrument, or any successor thereof or duly appointed receiver, manager, liquidator or trustee of the Purchaser over its assets or undertakings.  “The Seller” means Keables Pty Ltd.                                                               Unless otherwise expressly agreed in writing all quotations and all orders are accepted subject to the following terms and conditions notwithstanding anything that may be stated to the contrary on the Purchasers enquiries or orders.

(2) QUOTATIONS AND ORDERS

Unless otherwise stated, quotations shall remain firm for a period of sixty (60) days from the date appearing on the quotation after which they may be altered or withdrawn without notice. A quotation by the Seller shall not be deemed an offer to sell.

(3) TERMS & METHODS OF PAYMENT

Payment terms for goods ordered hereunder is strictly net thirty (30) days which period commences on and is inclusive of the last day of the month in which the invoice was issued (“the term”). Payment by cheque deemed not to have been made until cheque is cleared. EFT payment deemed not received until verified on bank statement.

(4) PRICES, MINIMUM CHARGES, FREIGHT & ACCOUNTS POLICIES

(i) Prices for all goods ordered hereunder shall be the prices in the Sellers current price list less trade discount if applicable which price shall not include Goods and Services Tax at the date of acceptance of the order. Unless otherwise specified the above price shall not be subject to any increase between the date of acceptance of order and the latest delivery date requested by the Purchaser provided such intervening period does not exceed three (3) months. If the intervening period between the date of acceptance of the order and the actual delivery date does exceed three (3) months the price shall be the price therefore in the Seller’s current price list at the date of actual delivery.

(ii) Minimum charges, per invoice; $11.00 incl GST (account customers); $27.50 incl GST (non account customer counter service); $38.50 incl GST (non account C.O.D's).

(iii)Freight will be charged on all deliveries in addition to minimum invoice charges. Freight charges; Account customers; $6.60 incl GST per delivery, (inner metro),  $11.00 incl GST per delivery, (outer metro), both may be more at Keables discretion. Non account customers; $11.00 incl GST per delivery or more at Keables discretion.

(iv) Accounts are opened, placed on stop credit &/or supply, or closed strictly at Keables discretion. Accounts available to trade customers only, ABN required, minimum opening purchase $220 incl GST, minimum monthly purchases $220 incl GST (or accounts will not be opened or may be closed without notice).

(5) PROPERTY IN THE GOODS

Ownership of the goods is retained by the Seller and property in the goods shall not pass to the Purchaser until payment is made for the goods and for all other goods supplied by the Seller to the Purchaser. If such goods are sold by the Purchaser prior to payment therefore and/or if they shall become constituents of other goods which are in turn sold by the Purchaser then the proceeds of such sale or a proportionate part thereof (which shall in any event be not less than the cost of the goods so constituted payable by the Purchaser to the Seller) shall be held by the Purchaser on trust for the Seller.

(6) DELIVERY

Whereas the Seller will endeavour to effect delivery of the goods on dates required by the Purchaser, the Seller shall not incur any liability of any nature howsoever arising from delays in delivery arising from any cause beyond the Seller’s control. The Seller reserves the right to vary delivery dates in circumstances where delays in delivery have arisen through causes beyond the Seller’s control and the Purchaser agrees to accept delivery on revised delivery dates notified by the Seller in writing as if those dates had been those originally agreed upon. The Seller reserves the right to cancel any order which in its opinion it is unable to supply within forty five (45) days of accepting the order and the Purchaser shall have no claim against the Seller for any damage, loss, cost or expense of whatsoever nature howsoever arising therefrom.

(7) ACCEPTANCE (INCLUDING “SPECIALS”)

(i)The Purchaser shall be deemed to have accepted and received, in good order and condition from the Seller all goods comprised in any order pursuant to which delivery purports to be made unless notice in writing to the contrary specifying details given by the Purchaser is received by the Seller within seven (7) days of the delivery date.

(ii)Any claim by the Purchaser that incorrect quantity or type of goods have been delivered, and any request for credit for any reason, must be brought to the attention of the Seller by notice in writing within seven (7) days of delivery. Credit claims will not be processed without written notice. Goods returned without paperwork may be returned to our stock at our discretion, and NOT processed for credit.

(iii)Goods manufactured to order to specific Purchaser requirements (“Specials”) & sold by the Seller to the Purchaser shall not be returned to the Seller for credit under any circumstance (subject to clause 11 (ii) & (iii)). It is entirely Purchasers responsibility to provide all information required by the Seller to manufacture such product (eg drawings), and to ensure information is accurate, complete & correct & that such product will be fit for purpose intended. Specials payment - deposit required before manufacture, balance C.O.D. Quantities ordered subject to manufacturers schedule & material usage – 10% over/under actual quantity ordered is deemed fulfilment of the order, and Purchaser shall be liable for payment of the actual quantity manufactured, notwithstanding the quantity ordered.

(iv)No goods (ie standard product) shall be returned to the Seller for credit after the expiration of the term.

(8) LIMITATION OF LIABILITY

The Seller shall not be liable for any loss, damage, suits, actions, liabilities, demands, expenses or proceedings of whatever nature howsoever arising including but without limiting the generality of the forgoing, loss injury or damage whether consequential or otherwise from the acquisition, purchase, usage, sale, re-sale or disposal of the goods or information by the Purchaser or from any other cause whatsoever. Due to insurance law we are unable to provide customer advice regarding application of any of the products we sell. Letters of conformance are based on supplier provided information. We do not warrant their accuracy - this is strictly a supplier responsibility.

 (9) TERMINATION OF ORDERS

The Seller may cancel any orders undelivered to the Purchaser by notice in writing if:

(i) The Purchaser commits or permits a breach of any condition hereof and fails to remedy the same and make good any damage suffered within thirty (30) days of the Seller’s notice in writing to do so;

(ii) The Purchaser makes any arrangement with creditors becomes insolvent or bankrupt or being a Company has a receiver appointed over the whole or part of its undertaking or is party to an attempt to enter into any scheme or arrangement or if a resolution is passed for its winding up; any monies due to the Seller by the Purchaser at the date of such termination shall become immediately due and payable.

 (10) WAIVER

The Seller’s failure to enforce any condition shall not effect the Seller’s right to so enforce any term at any time and shall not effect the Purchaser’s obligations hereunder.

 (11) WARRANTIES & REFUNDS

(i) Replacement or refund of goods will not be given under any circumstance without proof of purchase (ie our invoice).

(ii) All warranties and conditions which may be expressed or implied by law are hereby negatived or excluded save for those warranties and conditions which apply to this contract  between the Seller and Purchaser by virtue of the operation of any Commonwealth or State legislation which applies to the aforesaid contract and cannot be excluded by express agreement.

(iii) The Seller’s liability if any to the Purchaser for any breach of condition or warranty implied by the Trade Practices Act 1974 (as amended) or the Goods Act 1958 (as amended) shall be limited to the replacement of the goods or the supply of equivalent goods in respect of which there may be a breach of any implied warranty or condition and otherwise Clause 11(ii) shall apply in repect of any liability arising under either of the aforesaid Acts.

(iv) In circumstances other than as defined in (11)(iii), (eg order incorrectly, change of requirement, no longer needed etc), refund or replacement will be strictly at the Sellers discretion & subject to a restocking fee of up to 20% of the invoiced price of the goods excl GST.

 (12) JURISDICTION

Any contract containing all or any of these conditions shall be construed according to the law of Victoria insofar as the same is not inconsistent with the laws of the Commonwealth of Australia and the Seller and the Purchaser shall submit to the jurisdiction of the Victorian Courts and the Appellate Courts thereof for the purposes of giving effect to this clause.

 

(2) TERMS & CONDITIONS - PURCHASE OF GOODS & SERVICES (APPLICABLE TO ALL SUPPLIERS)

 1. DEFINITIONS

In these terms and conditions:

Agreement means an agreement between the Purchaser and Supplier for the supply of Goods or Services constituted by an Order, these Conditions, and any agreed variation;

Conditions mean these terms and conditions of purchase in this Agreement;

Goods means the goods described in the Order;

GST means any tax including any additional tax imposed on the supply of or payment for goods or services which is imposed or assessed under any GST Law;

GST Law means A New Tax System (Goods and Services Tax) Act 1999, and all related and auxiliary legislation;

Loss means any loss, liability, costs (including legal costs as the higher of an indemnity or solicitor-client basis) or expense incurred by the Purchaser relating to this Agreement;

Order means the Purchaser’s order, by post, fax, email, verbal or otherwise placed by any other means with the Supplier and includes always these Conditions whether expressly mentioned or not;

Purchaser means Keables Pty Ltd ABN 47 094 528 613 and any related body corporate or other related entity;

Representative of a party means that party’s director, or authorised officer, employee or agent;

Services means the services described in the Order;

Specifications means any technical or other specification relating to the Goods or Services referred to in the Order and details of which have been supplied by the Purchaser or its Representative to the Supplier; and

Supplier means the person who sells the Goods or provides the Services to the Purchaser.

2. BINDING TERMS AND CONDITIONS

2.1 Entire Agreement

The entire Agreement between the Purchaser and the Supplier for the purchase of the Goods or Services by the Purchaser from the Supplier is:

(a) these Conditions at all times. These Conditions shall be deemed communicated to the Supplier by virtue of their being available to be viewed on our website at www.keables.com.au. Specific communication of these Conditions to the Supplier shall not be required for them to be operative. They are deemed automatically operative as soon as an Order is placed with the Supplier;

(b) any other terms and conditions (including Specifications) incorporated by reference in the Order;

(c) any other terms and conditions which are imposed by law and which cannot be excluded; and

(d) any agreed written variation.

2.2 Precedence

These Conditions shall apply to all contracts for the purchase of Goods or Services by the Purchaser from the Supplier to the exclusion of any terms and conditions or any other materials which the Supplier may purport to apply or which are endorsed upon any correspondence or documents issued by the Supplier irrespective of their date of communication to the Purchaser, except to the extent that the Supplier’s terms and conditions are agreed to in writing and signed by the Purchaser. The Supplier may not rely on any representations by the Purchaser that are not included in the Agreement.

2.3 Acceptance

Acceptance of an Order by the Supplier constitutes acceptance in full of these Conditions.

3. PRICE

3.1 Price of Goods or Services supplied

The price specified in the Order is firm, and is not subject to increase. The price includes all costs of testing, inspection, labelling, packing and freight and delivery to and off-loading at the destination as specified in the Order.

3.2 GST

The price at which the Goods or Services are provided by the Supplier to the Purchaser includes (unless otherwise stated or agreed in writing) GST, if applicable.

3.3 Freight

Unless otherwise stated or agreed in writing the Supplier is responsible for freight and delivery to the destination as specified in the Order.

4. PAYMENT

4.1 Payment Terms

Payment for Goods or Services supplied by the Supplier to the Purchaser will be tendered 30 days from the last day of the month of the date of receipt by the Purchaser of a correctly rendered invoice or acceptance of the Goods by the Purchaser, whichever is the later, unless otherwise agreed.

4.2 Invoices

In addition to any other information specified in the Order or elsewhere in these Conditions, invoices must contain the following information: Purchase Order Number, Item Number, Description of Goods or Services, Sizes, Quantities, Weight, Unit Prices, GST Payable and Extended Totals. The Purchaser will accept no liability whatsoever for invoices which do not bear such information.

5. DELIVERY

The Goods must be received on the dates and at the destination specified in the Order. Time is of the essence. If the Supplier fails to meet any such delivery date, the Purchaser may, without limiting its other rights and remedies, cancel all or part of the Order. If the Purchaser has paid a deposit, it is entitled to be refunded in full to the Purchaser.

6. TITLE AND QUALITY

6.1 Title

Property in the Goods passes to the Purchaser on delivery.

6.2 Risk

The Supplier bears all risks of loss and damage to the Goods until final acceptance by the Purchaser in accordance with clause 6.3.

6.3 Final inspection and acceptance

Notwithstanding any prior inspections, usage or payments, all Goods shall be subject to:

(a) final inspection which may include measurement, testing or examination; and / or

(b) acceptance at the Purchaser’s facility; and / or

(c) acceptance by the Purchaser’s customer.

6.4 Acceptance and Rejection of Goods which comply strictly with the Agreement

Acceptance of Goods complying strictly with the Agreement, by the Purchaser will occur:

(a) on the date upon which the Purchaser notifies the Supplier in writing of acceptance; or

(b) automatically upon the lapsing of 180 days after delivery to the Purchaser's facility and / or the Purchaser's customer's facility.

Where notice is given by the Purchaser of rejection of Goods complying strictly with the Agreement, the Supplier must notify the Purchaser in writing within 7 days of notice being given, of the Supplier's intention regarding the rejected Goods. Failure by the Supplier to give such notice to the Purchaser within 7 days hereby empowers the Purchaser to deal with the Goods as though they do not comply strictly with the Agreement, as per 6.8.

6.5 No Waiver

The Purchaser’s acceptance does not waive rights. If the Purchaser accepts any Goods, this does not extinguish any of the Purchaser’s rights if the Goods do not comply with a term of the Agreement.

6.6 Supplier’s warranties

The Supplier warrants that the Goods:

(a) are safe;

(b) are free from encumbrances, defect or fault;

(c) are of merchantable quality;

(d) include appropriate and correct warning and instructions;

(e) are fit for the purpose for which purchased (as communicated by the Purchaser before the Order or as should be reasonably understood by the Supplier of the Goods who is experienced in such technical and specific matters relating to the Goods and the purpose they are intended for);

(f) comply with any drawings, representations, descriptions, samples, applicable standards or other specifications (including the Specifications) including quality, function, performance or design; and

(g) include any applicable Supplier’s warranty that passes to the consumer from the Purchaser without liability to the Purchaser.

6.7 Supplier’s Indemnities

The Supplier must indemnify the Purchaser against any Loss incurred by the Purchaser concerning a breach of warranty, representation or term of the Agreement.

6.8 Rejected (non complying / defective) Goods

The Purchaser may, at any time, reject any Goods which do not comply strictly with the Agreement. No time limit shall apply to the Purchaser's rights in this instance. Rejection of such goods hereby empowers the Purchaser to;

(a) quarantine the rejected goods on the Purchasers premises or purchaser's customer's premises pending Supplier pick up of said goods, at Supplier expense, or ;

(b) dump, scrap or otherwise dispose of the goods, completely at Purchasers discretion, in any way the Purchaser deems appropriate, or alternatively keep said goods for re work if deemed salvageable. The Purchaser may, at its sole discretion, offer the scrap value of the rejected goods to the Supplier, in lieu of returning rejected goods to the Supplier. Rejection of goods by the Purchaser's customer shall automatically be deemed rejection by the Purchaser of any goods supplied by the Supplier.  

The Supplier is liable for all Loss incurred by the Purchaser due to the rejection of the Goods. The Seller agrees the Purchaser is not required to give the Seller notice of rejected goods where they do not comply strictly with the Agreement, prior to taking any of the actions in (a) or (b) above.

6.9 Supplier responsibility following rejection of Goods or Services

Once the Goods are rejected under 6.4 or 6.8, the Purchaser may require:

(a) in the case of either Goods or Services, the Supplier to refund or credit in full any payment within 7 days; or

(b) in the case of Goods, replacement of the Goods to the Purchaser’s satisfaction; or

(c) in the case of Services, the re-supply of the Services.

Failure to comply with (a), (b) or (c) above shall empower the Purchaser to withhold any other monies due to the Supplier to the extent of the value of the rejected Goods. This short paid amount shall be deemed to satisfy the requirement for a credit or refund for rejected Goods as outlined in (a) above.

7. INSURANCE

7.1 Where the Purchase Order relates to the supply of services, the Supplier shall during the period of service maintain:

(a) Workers Compensation insurance in accordance with the applicable law where the Services are being performed;

(b) Public liability insurance for an amount no less than $5 million for any single event; and

(c) Professional Indemnity insurance for an amount no less than $5 million for any single event (unless otherwise stated on the Purchase Order).

7.2 Where Purchase Order relates to the supply of goods, the Supplier shall during the period of service maintain;

(a) Marine Cargo insurance to insure the goods in transit prior to risk passing to the Purchaser; and

(b) Product Liability insurance in the sum of no less than $5 million for any single event (unless otherwise stated on the Purchase Order)

8. INTELLECTUAL PROPERTY RIGHTS

The Supplier may sell Goods containing the Purchaser’s intellectual property only to the Purchaser or as permitted by the Purchaser.

9. CONFIDENTIALITY

The Supplier agrees to keep confidential all of the Purchaser’s information concerning or arising from the performance of the Order (“Information”). This clause does not apply to information which is lawfully obtained from a third party, is public knowledge, is already known or is otherwise independently developed by Representatives of the Supplier who have not been exposed to the Information.

Information remains the Purchaser’s property

All Information supplied by the Purchaser remains the property of the Purchaser and may only be used by the Supplier in fulfilling its obligations under the Agreement. The Supplier must not disclose any information without prior written consent of the Purchaser.

10. WORK ON THE PURCHASER’S PREMISES

If any Services are to be performed on the Purchaser’s premises, the Supplier must comply with all applicable environment, occupational health and safety laws and the Purchaser’s then current safety and other applicable policies. The Supplier shall provide the Purchaser with a complete list of all chemicals, hazardous materials, and ingredients in the composition of goods used in the performance of the Services and a copy of the material safety data sheet for such chemicals and hazardous materials. The submission of such list by the Supplier shall not relieve the Supplier of exclusive responsibility for the safe transportation, use, storage and disposal of such materials prior to acceptance by the Purchaser. All chemicals and hazardous materials brought by the Supplier to the Purchaser’s premises shall bear a label stating the identity of the chemical of material and the hazards associated therewith.

11. INDEMNITY AND RELEASE

The Supplier must defend, indemnify and hold the Purchaser, its affiliated companies and / or entities, and their Representatives and successors, and assigns harmless from and against any and all claims, suits, actions, liabilities, loss, judgments or damages, whether ordinary, special or consequential arising directly or indirectly from or in connection with:

(a) the acts, negligence, omissions or wilful misconduct of the Supplier;

(b) the Goods or Services supplied;

(c) a breach of any of the Supplier’s warranties or any other term of the Agreement;

(d) the Supplier’s negligent, unauthorised or wrongful acts or omissions with regards to the use or installations of hazardous materials;

(e) a claim that any Goods or Services supplied to the Purchaser infringe upon or misappropriate any patent, copyright, trademark, trade secret or other intellectual property interest of another; or

(f) a claim of any lien, security interest or other encumbrance made by a third party.

12. TERMINATION

12.1 Without cause

The Purchaser may, at any time, terminate the Order, in whole or in part, without cause, upon written or verbal notice to the Supplier. Following upon any such termination the Supplier shall, to the extent specified by the Purchaser, stop all work on the Order, and cause its suppliers and subcontractors to stop work. Charges for any such termination of the Order will be limited to actual non-recoverable costs incurred by the Supplier which the Supplier can demonstrate were properly incurred prior to the date of termination. In no event shall such reimbursement include anticipated profits for undelivered Goods or unperformed Services. Any finished or unfinished goods at the time of termination of an Order shall become the property of the Purchaser only in the event of any payment already having being made by the Purchaser for said goods, by way of deposit or other payment in advance.

12.2 With cause

The Purchaser may terminate the Order, in whole or in part, if the Supplier:

(a) fails to make delivery of the Goods or perform the Services within the time specified in that Order;

(b) fails to replace defective Goods or Services in accordance with these Conditions;

(c) fails to perform any other term specified in the Agreement; or

(d) becomes insolvent, files or has filed against petition in bankruptcy, or makes an assignment for the benefit or creditors.

13. THE PURCHASER’S PROPERTY

All drawings, Specifications, artwork, data, material, supplies, equipment, tooling, dies, moulds, fixtures and patterns furnished or paid for by the Purchaser, shall be the Purchaser’s exclusive property, and shall be used by the Supplier only in performance of the Order. Such property, while in the Supplier’s custody and control, shall be held at the Supplier’s sole risk and, upon the Purchaser’s request, shall be returned to the Purchaser in good condition, normal wear and tear accepted.