Sydney Express Powder Coating Terms & Condition
The definition of these Terms and Conditions of Sale (“Terms”) appears as stated
“SEPC” “us” or “we” means Sydney Express Powder Coating Pty Ltd and members of SEPC whom are responsible for the provision of Services as notified to the Customer.
“Australian Consumer Law” refers to the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
“PPSA” means the Personal Property Securities Act 2009 (Cth).
“Customer” means the purchaser of goods or services supplied by SEPC.
“Goods” means the customer’s goods provided to SEPC for services.
“Services” means any work to be performed on the Goods by SEPC, including and without limitation to powder coating and other forms of finishing work.
”Purchase Price” means the listed price for the goods or services as charged by SEPC which has been agreed upon by SEPC and the Customer.
“Additional Charges” includes all charges in excess of the Purchase Price including goods and service tax, stamp duty, delivery, handling and storage charges, late payment fees, interest, legal and other costs of recovery of unpaid monies payable by the Customer to SEPC in direct correlation with the sale of Goods and Services.
“GST” retains its express meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
2. General Provisions
2.1 By placing an order with SEPC, the customer is deemed to be in agreeance with the Terms and Conditions set out in this document. Any transaction between the Customer and SEPC is a transaction that incorporates these terms and conditions in its full capacity.
2.2 These terms and conditions shall be strictly adhered to and prevails to the extent of any inconsistency with any other terms and conditions in negotiated between SEPC and the Customer.
2.3 Variance of these terms may only be permitted by a duly authorised officer of SEPC in written form.
2.4 Where a Customer is a party to a varied service agreement supplied by SEPC as stipulated in clause 2.3, the terms of that agreement shall prevail over any of these terms which are inconsistent.
2.5 Where interpretation of terms must be construed against any statutory provisions that may render this document in part unlawful, the validity of the other provisions of these terms and the remainder of the provisions in question will not be affected and will remain enforceable to the fullest extent permitted by law.
2.6 Headings shall not affect the construction of the Terms.
2.7 A failure or omission by either party at any time to enforce or require strict and timely compliance with the provision of the Terms shall not impair the rights of the party to avail itself or to enforce the remedies it may have in relation to the breach or non-performance of that provision.
3. Payment Terms and Credit
3.1 All statement invoices issued by SEPC to the Customer on credit are payable within fourteen days of invoicing unless otherwise expressly notified by SEPC in writing pursuant to clause 2.3.
3.2 As an exception to Clause 3.1, cash on delivery Customers must pay their outstanding invoices prior to collection of the finished Goods.
3.3 Customer Credit Accounts that are set up with SEPC are subject to SEPC’s discretion to determine the credit limit. Subsequent variation of the credit limit must be executed by a duly authorized officer of SEPC in written form.
3.4 Customer Credit Accounts that reach the limit of shall be settled by the Customer when required to ensure the amount outstanding remains within the limit determined.
4. Statutory Provisions and Exclusion of Liability
4.1 Except as provided in these Terms and Conditions or as required by Australian Law, SEPC will not provide any excess warranty as to the condition, merchantability, correspondence with description or quality of the Goods and/or Services or as to their suitability or fitness for any use or purpose.
4.2 All statutory and implied conditions and warranties are excluded to the full extent permitted by law and shall be governed by the laws of New South Wales and the parties irrevocably submit to the jurisdictions of the Courts if the State of New South Wales.
4.3 To the maximum extent permitted by the law, SEPC excludes
a) all liability to the customer for
i. loss or damage incurred by the Customer due to any issues with
quality of Goods.
ii. loss or damage suffered the Customer arising from any negligent act
or omission to act on the part of SEPC officers
iii. loss of profits, revenue, business or any opportunities
4.4 The Customer acknowledges and declares that the Customer has read the Terms and Conditions and understand that no warranty, assurance or representation has been made in regards to the quality, suitability for use, fitness for use or merchantability of the Goods.
5.1 All prices quoted for the Services and/or Goods are subject to change as a result of variations including, but not limited to, packaging charges, insurance costs, exchange rates or other charges incurred by SEPC as a result of the Services.
5.2 SEPC will notify the customer of variations in price pursuant to 5.1.
5.3 Price estimates or figures given for performance of Services by SEPC to the Customer are only estimates and is not a fixed price.
5.4 An exception to 5.3, SEPC shall only accept liability for failure to achieve the figures or estimates given when the particular figures or estimates are guaranteed by SEPC in writing executed by a duly authorized officer.
6.Delivery and Collection
6.1 The Customer is responsible for arranging the delivery and/or collection of the Goods from SEPC premises at the Customer’s expense.
6.2 The time quoted by SEPC to the Customer for the collection and/or delivery of Goods is an estimate only and SEPC shall not be held liable for any damages experienced by the customer arising from this delay.
6.3 Pursuant to 6.3, SEPC will notify the Customer if the delay of the collection and/or delivery of Goods is expected to be later than the estimated date by 7 business days arising from any cause whatsoever.
6.4 All goods delivered to SEPC shall not be unloaded at SEPC premises until an authorized officer of SEPC has granted permission to.
6.5 The Customer shall not be relieved from any obligation to pay for the Services by reason of any delay in having the Goods available for collection.
6.6 If packages are charged for and returned, allowances will only be made when they are returned in good condition.
6.7 Risk in the Goods shall pass to the Customer immediately upon delivery to the Customer’s Nominated Address
6.8 Prior to Customer’s installation of the Goods provided by SEPC, the Customer is liable for assessing the condition of the Goods. If the customer has installed the Goods and has found that the goods are defective, SEPC will not be held liable for any consequential charges the customer will incur to reinstall or rectify the materials. The Customer agrees to
indemnify SEPC in this circumstance.
7. Disputes and Resolutions
7.1 If a dispute or claim arises from the Customer in relation to our services or any aspect of our Goods, the Customer must
a) Provide written notice to SEPC including the particulars of any alleged defects to the Goods, accompanied by photographic images of the alleged defects within 14 days after the collection of the Goods. b) Pursuant to clause 7.1(a), give SEPC a reasonable time to investigate and examine the alleged defects of the Goods, including but not limited to onsite inspections. c) Return the goods to SEPC in whole or in part to which the alleged defects apply within 14 days after collection of the Goods. d) Indemnify SEPC from and against any liability arising in connection with the alleged defective Goods beyond the period of 14 days after collection of Goods.
8.1 In the event that the Customer fails to pay any outstanding amount owing to SEPC pursuant to clauses 3 and 4 whether the Customer:
a) Becomes, threatens or resolves to become in jeopardy of becoming subject to any insolvency administration
b) Ceases or threatens to cease conducting its business in the normal manner; or
c) Breaches its obligations under clause 14 SEPC may without notice apply clause 8.2.
8.2 If the Customer defaults of any payment, SEPC may at its own discretion do any of the following:
a) Charge late fees and administration fees dependent on the loss incurred by SEPC in order to recover the amount owed by the Customer.
b) Charge interest rates at 2% above the standard overdraft rate (under 100,000 AUD) per annum applied by SEPC’s current bank at the time.
c) Withhold any further deliveries and cancel the Customer’s Customer Credit Account and revoke the ability for the customer to have credit with SEPC
d) Terminate the contract without prejudice to SEPC’s rights to seek the amount owed by the Customer by any means that SEPC sees fit as permitted by the law.
e) Repossess any Goods delivered to the Customer for the payment amount which has not been received by SEPC.
9.1 SEPC shall be entitled to a general lien on all Goods belonging to the Customer that are in SEPC’s possession or under SEPC’s control in the event that the Customer has committed an act of Default as specified in clause 8.
9.2 In accordance with clause 9.1, SEPC reserves the right to withhold Goods or services that have been paid for by the Customer up to the amount of the unpaid price of any other Goods or Services rendered to the Customer under any contract made between the Customer and SEPC.
10.1 SEPC may sub-contract the supply of any or all part of the Goods or Services stipulated in the quote or Scope of Work provided by SEPC to the Customer.
11.1 SEPC may at its own discretion fail to insist upon strict performance or enforcement of these terms and conditions and upon instance shall not be deemed as a waiver of any rights SEPC may be granted under this document.
11.2 Any act by SEPC that fails to enforce the rights stipulated in this document in the present dealings is done without prejudice to any future decision to enforce this document.
12.1 SEPC assigns its rights under these terms and conditions without any written consent of the customer.
12.2 The Customer must not assign its obligations under these Terms without SEPC’s prior written consent.
13.1 All services are performed upon the notion that all licenses and permits stipulated by their respective statutes, ordinances, rules and regulations have been obtained by the Customer and the Customer will ensure that the installation and use of all Goods meets the requirements of the law.
13.2 Pursuant to 13.1, SEPC is not liable for checking the Customer’s licenses and permits upon the provision of our Goods and Services and shall be released from any liability in relation to the legality of the Customer’s use of our provided Goods.
14. Third Party IP
14.1 Services and Goods provided by SEPC under the instruction of the Customer shall not infringe any intellectual property rights, including but not limited to patents, designs or trademark rights of any third party.
14.2 In accordance with 14.1, SEPC shall not be held liable for any expenses, damages, actions or costs incurred by the Customer in the event of infringement of unauthorized use of any intellectual property rights arising out of SEPC’s performance of services and provision of Goods to the Customer.
14.2 The Customer shall indemnify and release SEPC from any liability in relation to clauses 14.1 and 14.2.
15. Force Majeure
15.1 SEPC will not be liable to the Customer for damages for any delay in the delivery of Goods and neither party shall be liable in damages to the other for any interruption in the supply of acceptance of Goods if such delays, failure to deliver or accept delivery, act or omission are caused by force majeure or any other cause beyond SEPC’s reasonable control. This is including, but not limited to war, strike, fire, pestilence, the act of God, industrial action, transportation cancellations, riot, civil commotion, health pandemic, acts of terrorism.
16.1 Defined terms used in clause 16 have the same meaning given to them in the PPSA
16.2 SEPC and the Customer acknowledges and agrees that these Terms and any invoice issued under these Terms:
a) constitutes a Security Agreement for the purposes for the PSSA
b) initiates a Purchase Money Security Interest (“PMSI) in favour of SEPC over the supplied Goods to the Customer, as Grantor.
a) Create a Security Interest in
i. All Goods previously supplied by SEPC to the Customer
ii. All goods that will be supplied by SEPC to the Customer in the future.
16.3 The goods supplied or to be supplied under these Terms fall within the PPSA classification of “other Goods” acquired by the Customer pursuant to these terms and Conditions.
16.4 The Customer 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 relation to a Security Interest granted by the Customer, as Grantor, to the Seller under the PPSA (including under sections 144 and 157).
16.5 The Customer agrees to: a) Indemnify and reimburse SEPC for all expenses incurred in registering a financing statement or financing change statement on the PPSR established by the PSSA or releasing any goods charged; b) Promptly sign any further documents and/or provide any further information in which SEPC may reasonably require to i. Register a financing statement in relation to a security interest on the PPSR ii. Register any other document required to be registered by the PPSA; or iii. Correct a defect in a statement referred to in the clauses 16.5(a) or 16.5(b). 16.6 The Customer shall unconditionally ratify any actions taken by SEPC under 16.1 to 16.5.