General Terms & Conditions of Sale
1. Interpretation
1.1 In these terms:
- “ACL” means Schedule 2 to the Competition and Consumer Act 2010 (Cth);
- “Business Day” means a day other than a Saturday, Sunday or public holiday in New South Wales;
- “Buyer” means the person, firm or company placing an Order with the Company;
- “Company” means Treloar Trading Pty Limited (ABN 70 615 093 457) and any related body corporate within the meaning of the Corporations Act 2001 (Cth);
- “Consumer” has the meaning given in section 3 of the ACL;
- “Contract” means a contract for the supply of Goods or Services formed in accordance with clause 2;
- “Force Majeure Event” has the meaning given in clause 4.4;
- “Goods” means goods manufactured, sold or distributed by the Company under a Contract;
- “GST” has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
- “Order” means a written order placed by the Buyer for Goods or Services;
- “PPSA” means the Personal Property Securities Act 2009 (Cth);
- “Purchase Price” means the price for the Goods or Services as stated in the Quotation or, failing that, the Company’s ruling list price at the date of the Order;
- “Quotation” means a written offer or quotation issued by the Company; and
- “Services” means any installation, commissioning, maintenance, repair or other services provided by the Company.
1.2 Singular includes plural and vice versa. References to legislation include amendments to and replacements of that legislation. Headings are for convenience only and do not affect interpretation.
2. Terms and Formation
2.1 These terms apply to all transactions between the Company and the Buyer including all Quotations, offers, Orders and sales.
2.2 These terms (which may only be waived or varied in writing signed by an authorised representative of the Company) prevail over all conditions of the transaction to the extent of any inconsistency, including any terms put forward by the Buyer.
2.3 A Quotation is valid for thirty (30) days from its date and may be withdrawn or amended by the Company at any time before the Company has issued written acceptance of the Buyer’s Order. A Quotation is an invitation to treat and not an offer. A Contract is formed only when the Company issues written acceptance of the Buyer’s Order or commences performance, whichever first occurs.
2.4 Where the Buyer or its agent specifies, and the Company agrees in writing, testing and inspection will be carried out at the Company’s premises and the results of that testing or inspection are final. The Company is not responsible for the costs of any other testing or inspection.
2.5 Where the Company performs Services on the Buyer’s premises (or the premises of the Buyer’s contractors), the Buyer must, before work commences, disclose in writing to the Company’s Project Manager all special hazards or perils existing at, or imported into, those premises. The Company is not liable for loss or damage arising from any hazard or peril which the Buyer has failed to disclose. This clause does not limit the Company’s obligations under the Work Health and Safety Act 2011 (NSW) or any liability that cannot be excluded at law.
2.6 Except where the Buyer has notified the Company in writing of the particular purpose for which the Goods are required and the Company has expressly accepted that purpose in writing, the Buyer is responsible for satisfying itself that the Goods are fit for the Buyer’s intended use. This clause does not exclude or limit any consumer guarantee under the ACL where it applies.
3. Prices
3.1 Unless otherwise stated, all prices are exclusive of GST and are quoted ex the Company’s premises at Rutherford, NSW. GST is payable in addition in accordance with clause 21.
3.2 Quoted prices are based on the Company’s costs (including labour, materials, exchange rates, government charges and award rates) prevailing at the date of the Quotation. Where, between the date of the Quotation and delivery, any of those costs increases by more than five per cent (5%), the Company may, by written notice to the Buyer, pass on the increase to the extent that it affects the Goods or Services the subject of the Quotation. The Buyer may, within ten (10) Business Days of that notice, cancel the unfilled balance of the Order without further liability.
3.3 Where Bills of Quantities are issued with an invitation to quote, those quantities form the basis of price but the Company accepts no responsibility for their accuracy or any omissions. Charges will be made in accordance with the quantities actually delivered. If the quantity is reduced below that quoted, the Company may amend the price.
3.4 Crating and packaging charges are at the Company’s discretion and at the cost of the Buyer unless otherwise specified.
3.5 All applicable taxes, duties or levies (including GST) on the sale of the Goods are to the Buyer’s account.
4. Delivery
4.1 Unless otherwise specified, the Buyer is responsible for collecting the Goods from the Company’s premises at Rutherford, NSW. Freight charges are to the Buyer’s account.
4.2 Quotations for material to be delivered from stock are subject to prior sales.
4.3 The Company will use reasonable endeavours to meet quoted delivery dates but those dates are estimates only. The Company is not liable for any indirect or consequential loss or damage caused by delay. Where delivery is delayed by more than thirty (30) Business Days beyond the quoted delivery date for any reason other than an act or omission of the Buyer or a Force Majeure Event, the Buyer may cancel the unfilled balance of the Order without further liability.
4.4 “Force Majeure Event” means any event beyond the reasonable control of a party including strikes, lockouts, industrial action, fire, flood, storm, act of God, war, terrorism, epidemic or pandemic, shortages of raw materials, government decrees or orders, transport difficulties, and failures or malfunctions of computers, telecommunications or other information technology systems. The party affected must give prompt written notice and use reasonable endeavours to mitigate. While the Force Majeure Event continues, the affected party is excused from performance to the extent affected. If the Force Majeure Event continues for more than sixty (60) days, either party may terminate the affected portion of the Contract by written notice without further liability.
4.5 Deliveries by instalments must be requested by the Buyer within the times stipulated in the Contract. Where the Buyer fails to request or accept instalment deliveries on time:
- the Company may store the Goods at the risk and cost of the Buyer; and
- the Buyer is deemed to be in default of payment for that delivery.
4.6 Where Goods are ordered for delivery by instalments, each instalment delivery is a separate Contract performed by the Company on delivery.
4.7 Quoted delivery dates are subject to availability of materials and to the Buyer providing all information (including critical dimensions) the Company reasonably requires to enable manufacture to proceed.
5. Risk
5.1 Risk in each Order passes to the Buyer on delivery to the Buyer or on collection by the Buyer’s agent or courier.
5.2 Subject to clause 14, where the Company accepts a return of any Goods, risk in those Goods reverts to the Company on delivery to the Company or on collection by the Company’s agent or courier.
5.3 Any property of the Buyer in the Company’s custody or control is at the Buyer’s risk.
6. Intellectual Property
6.1 Subject to any pre-existing intellectual property rights of the parties, all intellectual property created by the Company in performing a Contract (including drawings, designs, specifications and tooling) vests in the Company on creation. The Buyer must do all things reasonably required to perfect that vesting.
6.2 Where Goods are manufactured to the Buyer’s designs, drawings or specifications, the Buyer warrants that those designs, drawings and specifications do not infringe any third-party intellectual property rights, and the Buyer indemnifies the Company against all loss, damage, costs and expenses (including legal costs on a solicitor-and-own-client basis) arising from any actual or alleged infringement.
7. Drawings
7.1 The Company does not warrant the accuracy of any drawings submitted with Quotations. All drawings remain the property of the Company. Drawings supplied are confidential and may be used only for the purpose of dealings between the Buyer and the Company. Their delivery does not convey property rights or rights to reproduce or to disclose to others.
7.2 The Company does not guarantee the quality or fitness of any material or component manufactured to the Buyer’s drawings for any particular purpose.
7.3 Where applicable, all Orders include the supply of one set of the Company’s standard instructions and prints. Additional copies are at the Buyer’s expense.
8. Tools and Tooling
8.1 Drawings, tools, gauges and patterns made by the Company remain the Company’s property and are kept in its custody for three (3) years from the date of acceptance of the last Order to which they relate, after which the Company may dispose of them.
8.2 The Company does not warrant the accuracy of any tooling not made by or under its supervision. Tooling supplied by the Buyer is held at the Buyer’s sole risk.
8.3 Modifications to tooling are at the Buyer’s expense (plus GST).
8.4 Where work is started or stopped because the Buyer alters or fails to provide tooling, drawings or specifications, all costs incurred by the Company (plus GST) are payable by the Buyer as if those costs had been included in the Quotation.
9. Retention of Title
9.1 Notwithstanding delivery to the Buyer, until the Buyer has paid in full for the Goods and any other Goods previously supplied:
- legal title to the Goods remains with the Company;
- risk in the Goods passes to the Buyer on delivery;
- the relationship between the Company and the Buyer in respect of the Goods is fiduciary; and
- the Buyer must hold the Goods as bailee for the Company, keep them separate from other goods, and label them as the Goods of the Company.
9.2 The Buyer may sell the Goods in the ordinary course of business with the Company’s consent (which is given), provided the proceeds are held in a separate account in trust for the Company, are not mingled with other money, and are not placed into an overdrawn account.
9.3 If the Buyer uses the Goods in a manufacturing or construction process of its own or of any third party, the Buyer holds in trust for the Company that part of the proceeds equal in dollar terms to the amount owing by the Buyer to the Company at the time of receipt of those proceeds.
9.4 The Buyer is not the agent of the Company in any sale of the Goods.
9.5 On the occurrence of any event of default specified in clause 12.4, the Company may, without further notice or demand, retake possession of the Goods, sell them on terms it determines, and deduct all reasonable expenses incurred. The Buyer irrevocably authorises the Company, its employees and agents to enter any premises (using only such force as is reasonably necessary) where the Goods may be located and at reasonable times for those purposes, and to leave premises secure on departure.
10. PPSA
10.1 Capitalised terms used in this clause have the meanings given in the PPSA.
10.2 The Buyer grants to the Company a Security Interest in the Goods and their Proceeds, including any Accounts, Accessions and Commingled Goods.
10.3 The Buyer acknowledges that any purchase by it on credit terms, or any retention of title supply pursuant to these terms, Attaches on delivery and constitutes a Purchase Money Security Interest.
10.4 The Buyer agrees that:
- these terms (or, on at least thirty (30) days’ prior notice, such other terms as the Company may adopt) apply to the supply of Goods to the exclusion of all other terms and constitute a Security Agreement under the PPSA;
- no variation to these terms is effective unless agreed in writing by the Company;
- the Goods supplied secure the payment of the Purchase Price of those Goods and of any other Goods supplied by the Company with priority to the fullest extent permitted by law over all other Security Interests;
- the Buyer must do all things necessary in the Company’s reasonable opinion (including providing all information the Company requires) to register a Financing Statement or Financing Change Statement on the Register;
- the Buyer must not change its name, ABN or other registration details without first notifying the Company in writing;
- the Buyer waives its right to receive a Verification Statement; and
- the Buyer must pay the Company’s costs of any discharge or amendment of any Registration. The Company may charge an administration fee for registration or maintenance of any Security Interest.
10.5 To the maximum extent permitted by law, the Buyer agrees that sections 95, 96, 117, 118, 121(4), 123, 125, 129(2) and (3), 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA do not apply.
10.6 In addition to any other rights, the Company may exercise any remedies under the PPSA including entry into any building or premises owned, occupied or used by the Buyer to search for, seize, dispose of or retain Goods in respect of which the Company has a Security Interest.
10.7 The Buyer agrees that neither party will disclose information of the kind referred to in section 275(1) of the PPSA, and this clause constitutes a confidentiality agreement under section 275(6)(a). The Buyer waives any rights under section 275(7)(c).
10.8 The Buyer appoints the Company as its attorney to sign in the Buyer’s name all documents the Company reasonably considers necessary to enforce or protect the Company’s rights under these terms and the PPSA.
11. Product Changes
11.1 The Company may, by notice to the Buyer, amend the design or specification of any Goods provided that any such change does not materially adversely affect the form, fit, function, safety or price of the Goods the subject of an accepted Order. If a proposed change does have such a material effect, the Company will notify the Buyer in writing and the Buyer may, within ten (10) Business Days, either accept the change in writing or cancel the unfilled balance of the Order without further liability.
12. Payment
12.1 The Buyer must pay the Purchase Price (and all GST and other taxes payable in connection with the supply) by the last Business Day of the calendar month following the month of supply, in cleared funds and without set-off, deduction or counterclaim.
12.2 The Company may charge interest on overdue amounts at the rate of 2% per annum above the Reserve Bank of Australia Cash Rate Target prevailing on the due date, calculated daily and capitalised monthly, until payment in full. Payments are applied first to accrued interest and recovery costs and then to principal.
12.3 Payment by credit card may be subject to a merchant-service surcharge not exceeding the Company’s reasonable cost of acceptance.
12.4 Without limiting any other right, the Company may suspend further deliveries, require payment in advance, withhold the issue of certificates or terminate any Contract by written notice if the Buyer:
- fails to pay any amount when due;
- is an individual who commits an act of bankruptcy; or
- is a company in respect of which:
- a winding-up application is made or a resolution is proposed to wind it up, deregister it or dissolve it;
- a receiver, receiver and manager, controller or administrator is appointed;
- a scheme of arrangement (other than for solvent restructure) is entered into; or
- any assignment is made for the benefit of creditors.
12.5 The Buyer must pay all reasonable costs (including legal costs on a solicitor-and-own-client basis, mercantile agent fees and Court costs) incurred by the Company in recovering overdue amounts.
13. Acceptance of Goods
13.1 The Buyer must inspect the Goods immediately on delivery to the Buyer or on collection by the Buyer’s agent or courier.
13.2 Claims for shortages, damage in transit or non-conformity that is reasonably apparent on inspection must be made in writing to the Company within fourteen (14) days of delivery. Claims in respect of latent defects must be made in writing within fourteen (14) days after the defect ought reasonably to have been discovered, and in any event within the warranty period in clause 17. Claims not made in accordance with this clause are deemed waived to the extent permitted by law.
13.3 Where the Buyer makes a justified claim, the Company may, at its option:
- reduce the Purchase Price by agreement with the Buyer;
- accept the return of the Goods (in the condition delivered) and refund the Purchase Price; or
- replace the Goods, after which no further claim may be made.
14. Cancellation of Orders / Return of Goods
14.1 An Order may be cancelled only with the Company’s prior written consent. The Buyer must pay a cancellation fee equal to the net selling price of all non-recoverable work and materials performed or committed by the Company up to the date of cancellation, plus a reasonable allowance for loss of margin.
14.2 No Goods may be returned without a Return Goods Authority issued by the Company in advance.
14.3 Goods manufactured to the Buyer’s specification or by special order are non-returnable.
14.4 Standard re-saleable Goods returned in as-new condition with proof of purchase are subject to a 20% restocking fee plus freight; the Company may reject any Goods that are not in as-new condition.
15. Performance
15.1 Performance figures are based on experience and are figures the Company expects to obtain on test. The Company is liable for failure to attain a stated figure only where it has expressly guaranteed that figure within specified margins. The Buyer is responsible for ensuring the capacity and performance of the Goods are sufficient and suitable for its purpose.
16. Advice and Information
16.1 Any advice, recommendation, information, assistance or service given by the Company in relation to the Goods or their use or application is given in good faith and is believed accurate at the time it is given, but is provided without warranty. The Company does not accept liability for any loss suffered from the Buyer’s reliance on it, except to the extent any liability cannot be excluded at law.
17. Warranty
17.1 In addition to any rights the Buyer has at law, the Company will, at its option, repair or replace any Goods which prove to be defective in materials or workmanship within twelve (12) months from delivery, provided the Goods are returned to the Company’s premises at Rutherford, NSW (freight prepaid) with proof of purchase and a written description of the defect.
17.2 This warranty does not apply to defects caused by misuse, neglect, accident, modification, repair by anyone other than the Company, or use of the Goods otherwise than in accordance with the Company’s written instructions or generally accepted engineering practice.
17.3 The Company will reimburse the Buyer’s reasonable, direct and substantiated costs of making a successful warranty claim.
17.4 Subject to clause 19, the Company is not liable to the Buyer for any indirect, special or consequential loss, loss of profit, loss of revenue, loss of use, loss of production, loss of contract, loss of opportunity or loss of goodwill, however arising.
17.5 Warranty notices must be sent to: National Customer Service Manager, Treloar Trading Pty Limited, 3/92 Mustang Drive, Rutherford NSW 2320, sales@treloar.com.au.
18. Confidential Information
18.1 “Confidential Information” means each party’s business and technical information, pricing and discounts and any other information which is marked confidential, that a party ought reasonably to know is confidential or that is by its nature confidential, regardless of form. Confidential Information does not include information that:
- is generally known by third parties without breach by the receiving party;
- is lawfully received from a third party without restriction;
- was already known by the receiving party without breach of confidentiality;
- was independently developed without use of the disclosing party’s Confidential Information; or
- is required to be disclosed by court order or other lawful government action (and only to that extent), provided the receiving party promptly notifies the disclosing party so that it may seek a protective order.
18.2 Each party must protect the secrecy of the other party’s Confidential Information with the same degree of care as it uses to protect its own, and in any event with a reasonable degree of care.
18.3 Neither party may use or disclose the other party’s Confidential Information except as permitted in this clause or for the purpose of performing its obligations under the Contract.
18.4 These obligations survive expiration or termination.
18.5 On termination, each party must cease use of the other’s Confidential Information and, on request, return or destroy it and certify in writing its compliance.
19. Australian Consumer Law
19.1 Nothing in these terms excludes, restricts or modifies any guarantee, condition, warranty, right or remedy implied by law (including the ACL) which cannot lawfully be excluded, restricted or modified.
19.2 Where the Goods are not of a kind ordinarily acquired for personal, domestic or household use or consumption, the Company’s liability for breach of any guarantee, condition or warranty (other than one which cannot be excluded under the ACL) is limited, at the Company’s option, to:
- the replacement of the Goods or the supply of equivalent Goods;
- the repair of the Goods;
- the payment of the cost of replacing the Goods or of acquiring equivalent Goods; or
- the payment of the cost of having the Goods repaired.
19.3 For Goods supplied to a Consumer, the following statement applies: “Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.”
19.4 Each party’s liability is reduced to the extent the loss or damage is caused by the other party or its personnel.
20. Dispute Resolution
20.1 A party must not commence Court proceedings (other than for urgent interlocutory or equitable relief) unless it has first complied with this clause.
20.2 A party claiming a dispute exists must give the other party written notice describing the dispute. Senior representatives of each party must meet within ten (10) Business Days and use reasonable endeavours to resolve the dispute by good-faith negotiation.
20.3 If the dispute is not resolved within twenty (20) Business Days of the notice, the parties must refer the dispute to mediation administered by the Resolution Institute (Sydney) under its Mediation Rules. The mediator’s fees and venue costs are shared equally; each party bears its own costs of the mediation.
20.4 If the dispute is not resolved within thirty (30) Business Days of referral to mediation, either party may commence proceedings in a Court of competent jurisdiction in New South Wales.
21. GST
21.1 Unless expressly stated otherwise, all amounts payable under a Contract are exclusive of GST. If GST is payable on a taxable supply made under a Contract, the recipient must pay to the supplier, in addition to the consideration, an additional amount equal to the GST payable, on receipt of a valid tax invoice.
22. Work Health & Safety
22.1 When performing Services on the Buyer’s premises, each party must comply with the Work Health and Safety Act 2011 (NSW) and any reasonable site rules. The Buyer warrants that the workplace is safe for the Company’s personnel, must provide such site-specific induction as is reasonably required, and must not direct the Company’s personnel in a manner that creates a risk to health or safety.
23. Insurance
23.1 The Company will maintain public and product liability insurance of not less than $20 million per occurrence and workers’ compensation insurance as required by law. Certificates of currency will be provided on reasonable request.
24. Cap on Liability
24.1 Subject to clause 19 and to liability for personal injury or death caused by the Company’s negligence, the Company’s aggregate liability to the Buyer in connection with a Contract (whether in contract, tort, under statute or otherwise) is limited to the Purchase Price paid by the Buyer for the Goods or Services giving rise to the claim.
25. Buyer Indemnity
25.1 The Buyer indemnifies the Company against all loss, damage, claims, costs and expenses (including legal costs on a solicitor-and-own-client basis) suffered or incurred by the Company arising from:
- the Buyer’s breach of these terms;
- misuse, modification or unsafe use of the Goods by the Buyer or its personnel; or
- the negligent or wrongful act or omission of the Buyer or its personnel.
26. Notices
26.1 Notices must be in writing and sent to the address or email last notified by the recipient. Notices are deemed received on hand delivery, on the next Business Day after posting by pre-paid mail to an Australian address, or at the time of successful transmission of an email (provided no failure or bounce notice is received within four hours).
27. Assignment
27.1 The Buyer may not assign or novate any Contract without the Company’s prior written consent. The Company may subcontract performance of any of its obligations but remains responsible for performance under the Contract.
28. Privacy
28.1 The Company collects, holds and uses personal information of the Buyer’s personnel in accordance with the Privacy Act 1988 (Cth) and the Company’s Privacy Policy at treloar.com.au/privacy-policy.
29. Modern Slavery & Anti-Bribery
29.1 Each party warrants that it will comply with the Modern Slavery Act 2018 (Cth), the Criminal Code Act 1995 (Cth) (foreign and domestic bribery offences) and all other applicable anti-corruption laws in connection with each Contract.
30. No Set-Off
30.1 The Buyer must pay all amounts owing in full without set-off, deduction, withholding or counterclaim.
31. Survival
31.1 Clauses 6 (IP), 9 (Retention of Title), 10 (PPSA), 12 (Payment), 14 (Cancellation), 17 (Warranty), 18 (Confidentiality), 19 (ACL), 20 (Disputes), 24 (Cap on Liability), 25 (Buyer Indemnity) and any other clause which by its nature is intended to survive, continue in force after termination.
32. Counterparts and Electronic Execution
32.1 A Contract may be executed in counterparts (including by electronic signature in accordance with the Electronic Transactions Act 2000 (NSW)) and all counterparts together constitute one instrument.
33. Variations
33.1 No variation of these terms or any Contract is effective unless in writing signed by an authorised representative of the Company. The Company may vary these terms prospectively by giving the Buyer at least thirty (30) days’ written notice; variations apply only to Orders accepted after the effective date of the change.
34. General
34.1 Governing Law: this Contract is governed by the laws in force in New South Wales and the parties submit to the non-exclusive jurisdiction of the Courts of New South Wales.
34.2 Entire Agreement: this Contract constitutes the entire understanding of the parties on its subject matter and supersedes all previous communications, representations or understandings, oral or written.
34.3 Severance: if any provision of this Contract is invalid or unenforceable, that provision is severed and the remaining provisions remain in effect. The parties will negotiate in good faith for a replacement provision if the severed provision is essential.
34.4 Waiver: a failure by either party to enforce any right or remedy under the Contract is not a waiver of any right or remedy.
34.5 Non-Solicitation: during the term of any Contract and for twelve (12) months after its end, the Buyer must not, and must procure that its related bodies corporate do not, solicit for employment or engagement any employee, consultant or contractor of the Company with whom the Buyer had material dealings in connection with the Contract during the previous twelve (12) months. This clause does not prohibit the Buyer from employing a person who responds in good faith to a general public advertisement not specifically targeted at the Company’s personnel.