LEAM TRADING PTY LTD T/AS FABRE AUSTRALIA TRADING TERMS

 

1. Definitions

In this document the following terms have the following meanings:

Additional Charge means:

 (a) fees or charges for additional work performed at the Customer's request or reasonably required because of the Customer's conduct, calculated in accordance with the Supplier's then current prices; and

 (b) expenses incurred by the Supplier, at the Customer's request or reasonably required because of the Customer's conduct.

Application means the application by the Customer to the Supplier for commercial credit;

Business Day means a day that is not a Saturday, Sunday or public holiday in the place where the Services are principally being carried out or the Goods provided;

Contract means the contract referred to in clause 2.5;

Customer means the person identified as the customer in the Application or any person who purchases Goods from Supplier;

Goods means any goods, products, services or materials supplied or to be supplied by Supplier;

Supplier means Leam Trading Pty Ltd t/as Fabre Australia (within the meaning of the Corporations Act) or the entity specified as the supplier of Goods or Services on the Quote and includes the Supplier's agents and permitted assigns);

Loss includes, but is not limited to, costs (including party to party legal costs and the Supplier's legal costs), expenses, lost profits, award of damages, personal injury and property damage;

Order means any offer by the Customer to purchase Goods from the Supplier including but not limited to telephone or email orders;

Purchase Price means the amount listed on the Invoice for Goods;

Invoice means any Invoice for Goods to be provided by the Supplier;

Terms and Conditions of Trade means these Terms and Conditions of Trade; and

Warranty means any applicable manufacturer’s warranty. 

Unless otherwise stated, an expression used or defined in the Corporations Act 2001 (Cth) (Corporations Act) or Personal Property Securities Act 2009 (Cth) (PPSA) has the same meaning in the Terms and Conditions of Trade.

2. Offer and Acceptance

2.1. The Customer can offer to purchase Goods from the Supplier for the purchase price verbally or in writing (e.g. by placing an order) (Offer).

2.2. Any Offer by the Customer constitutes acceptance of these Terms and Conditions.

2.3. The Supplier may in its absolute discretion accept or reject the Customer’s Offer. 

2.4. An Offer is accepted when the Customer receives written or verbal acceptance from the Supplier or receives delivery of the Goods, whichever occurs first.

2.5. When an Offer is accepted by the Supplier, the Contract will consist of any specific term(s) agreed in writing, these Terms and Conditions, any Warranty and any Application.

2.6. The Contract constitutes the entire agreement between the Supplier and the Customer with respect to the Goods supplied under the Contract.  All prior negotiations, proposals and correspondence are superseded by the Contract and these Terms and Conditions of Trade will in all circumstances prevail over the Customer’s terms and conditions of purchase (if any).

3. Payment 

3.1. The Customer must pay the purchase price listed on the invoice to the Supplier on delivery of the Goods, or if a credit account has been granted with the Supplier, payment terms are strictly thirty (30) days, unless otherwise stated in the contract, from the date of invoice and payment is due and payable on that date. 

3.2. All representations made in the invoice are made on the basis that errors and omissions are excepted.

3.3. Unless the Supplier otherwise notifies the Customer in writing, the price charged for the Goods is exclusive of any goods and services tax, sales tax, excise, duty and/or any identified or new taxes that come into existence after the effective date of these Terms and Conditions).

3.4. Where any goods and services tax, sales tax, excise, duty and/or any identified or new taxes apply to any supply made under these Terms and Conditions, the Supplier may recover from the Customer an additional amount on account of those taxes.

4. Credit

4.1. The Supplier may grant the Customer credit upon the Terms and Conditions of Trade on the basis of the Application and such other documents and information as may be required by the Supplier.

4.2. Until the Supplier grants the Customer credit by notice in writing, the Supplier will only supply Goods to the Customer on the basis of cash in advance.

4.3. The granting of credit does not oblige the Supplier to extend any particular amount of credit to the Customer.

4.4. The Customer must notify the Supplier in writing if there is any change in the shareholding or ownership of the Customer or any material change in the Customer’s financial position.

4.5. The Customer acknowledges and agrees that the credit to be provided by the Supplier is to be applied wholly and predominantly for commercial purposes.

5. Additional Charges  

5.1. The Supplier may require the Customer to pay Additional Charges in respect of Costs incurred by the Supplier as a result of reliance on inadequate or incorrect information or material provided by the Customer or information or material supplied later than required by the Supplier in order for it to provide the Goods or Services within the specified time frame (if any).

5.2. The imposition of Additional Charges may also occur as a result of:

    1.  

(a) cancellation by the Customer of an Order where cancellation results in Loss to the Supplier;

(b) storage costs for Goods not collected from the Supplier within [number] weeks of the date on which the Goods are manufactured, fabricated, created or formed;

(c) photocopying, courier, packing or handling charges not included in the Quote;

(d) Government or council taxes or charges not included in the Quote; or

(e) additional work required by the Customer or any other occurrence which causes the Supplier to incur costs in respect of the Customer's Order additional to the quoted cost.

6. Delivery

6.1. The Customer is liable for all transport charges and/or transport insurance of the Goods unless the Supplier agrees in writing otherwise. If such charges are paid by the Supplier, those charges are not refundable if included in the purchase price in the event the Goods are later returned. 

6.2. If the Supplier accepts liability for transport charges and/or transport insurance, the Customer agrees to indemnify the Supplier from any loss which occurs to the Goods during transport and/or delivery including any consequential loss. 

6.3. Upon delivery of Goods by the Supplier to the Customer, the Customer must sign a proof of delivery.

6.4. The Supplier will make all reasonable efforts to have the Goods delivered to the Customer or the Customer’s designated agent as agreed between the parties (or if there is no specific agreement then at the Supplier’s reasonable discretion), but the Supplier will not be liable for:

(a) any failure to deliver or delay in delivery for any reason; 

(b) any damage or loss due to unloading; or 

(c) damage to property caused upon entering premises to deliver the Goods.  

 

6.5. The Supplier may deliver the Goods by separate instalments (in accordance with any agreed delivery schedule).  Each separate instalment will be invoiced and paid in accordance with the provisions of the Contract relating to the Goods.

6.6. The Customer will inspect the Goods on delivery and must within fourteen (14) days of delivery notify the Supplier of any alleged defect, shortage in quantity, damage, or failure to comply with the description or quote.  The Customer must afford the Supplier an opportunity to inspect the Goods within fourteen (14) days after notifying the Supplier in accordance with this clause.  If the Customer fails to notify the Supplier within fourteen (14) days of delivery of any alleged defect, shortage in quantity, damage, or failure to comply with the description or quote, the Goods will be deemed to be accepted by the Customer, free from defect or damage and to be in accordance with the Contract relating to the Goods.

6.7. Notwithstanding anything in clause 6.6, except as required by law, the Supplier will be under no obligation to accept Goods returned for any reason.

7. Title and related matters

7.1. The legal and equitable title to the Goods will remain with the Supplier and will not pass to the Customer until full payment is received by the Supplier from the Customer for all Goods supplied by the Supplier to the Customer and for all other moneys owed by the Customer to the Supplier. 

7.2. Until title to such Goods passes to the Customer, the Customer acknowledges and agrees that: 

(f) the Customer holds the Goods as bailee for the Supplier and that a fiduciary relationship exists between the Customer and the Supplier; and

(g) the Customer must keep the Goods separate and in good condition as a fiduciary of the Supplier, clearly showing the Supplier’s ownership of the Goods and, must keep books recording the Supplier’s ownership of the Goods and the Customer’s sale or other use of them in accordance with paragraphs 6.3 and 6.4.  The Customer if required, must deliver the Goods up to the Supplier.

 

6.2. If the Customer defaults, in addition to clause (i), the Supplier may take possession of the Goods wherever the Goods are located and the Customer agrees that representatives of the Supplier may enter upon the Customer’s premises, or any premises where the Goods are situated as the invitee of the Customer, for that purpose.

6.3. Despite paragraph 7.1, the Customer may sell, as fiduciary agent for the Supplier, the Goods to a third party in the normal course of the Customer’s business provided that where the Customer is paid by that third party, the Customer holds the proceeds of sale, to the extent of the money owing by the Customer to the Supplier, on any account whatsoever, at the time of receipt of such proceeds, on trust for the Supplier.  The Customer must keep those proceeds separate on trust for the Supplier and not mix those proceeds with any other money.

6.4. If the Customer uses the Goods, or allows the Goods to be used to manufacture or produce another product, then the Customer must hold on trust for the Supplier such part of the proceeds of such manufacturing or production process as relate to the Goods.  Such part will be deemed to equal, in dollar terms, to the price of the Goods used.  The Customer must keep that part of the proceeds separate on trust for the Supplier and not mix those proceeds with any other money.

6.5. The provisions of this title clause apply notwithstanding that the Supplier may have provided credit to the Customer. 

8. Risk

8.1. Risk in the Goods passes to the Customer upon delivery (including all risks associated with unloading) or upon title in the Goods passing to the Customer, whichever is the earlier.

 

9. Personal Property Securities

9.1. Terms defined in the PPSA have the same meaning when used in these Terms and Conditions. 

9.2. The Customer acknowledges and agrees that under the PPSA: 

(a) The Contract constitutes a security agreement; 

(b) The Customer grants the Supplier a purchase money security interest in all Goods supplied by the Supplier to the Customer from time to time as security for payment of the purchase price of the Goods;

(c) The Customer grants the Supplier a security interest in all Goods supplied by the Supplier to the Customer from time to time as security for payment of any money owed by the Customer to the Supplier and as security for the performance by the Customer of the obligations set out in these Terms and Conditions;

(d) The Supplier may register a financing statement on the Personal Property Securities Register.

 

9.3. The Customer agrees to provide information and do anything the Supplier reasonably requires to register, maintain and enforce the Supplier’s security interest. 

9.4. The Customer waives the requirement to provide information under various provisions of the PPSA, in particular, the Customer agrees that as provided for in: 

(a) Section 157 – the Supplier is not required to give you a verification statement; 

(e) Section 144 – the Supplier is not required to give you notice under section 95, 118, 121, 130, 132 and 135; and

(f) Section 275 – the Supplier is not required to provide interested persons with information relating to the Supplier’s security interest and neither is the Customer. 

 

9.5. The Customer irrevocably grants the Supplier the right to enter upon the Customer’s property or premises, without notice or liability, to enforce its rights under the PPSA. 

10. Returns

10.1. The Customer must inspect the Goods on delivery and may return them within fourteen (14) days from the delivery date if they are not of acceptable quality as defined under the ACL. 

10.2. the Supplier may in its absolute discretion accept or reject the return of Goods which are deemed by the Supplier to be of acceptable condition (e.g. change of mind). If the return of Goods in acceptable condition within fourteen (14) days is accepted, a 10% restocking fee will apply. The return of Goods will not be accepted upon the expiration of seven days after the delivery date, except in accordance with the Supplier’s requirements under any applicable Warranty and the Australian Consumer Law. 

10.3. The Supplier in considering whether returned Goods are of acceptable condition will consider (amongst other things) whether the returned Goods are in the original packaging, accompanied by original invoice and in a condition suitable for the Supplier to re-stock and re-sell.

10.4. If the Supplier accepts the return of Goods pursuant to clause 10, the Supplier in its absolute discretion may allow for an exchange for Goods of equivalent price or to provide a credit to the value of the Goods. 

10.5. Transport charges for returned Goods must be prepaid by the Customer. The Customer is liable for all transport charges and/or transport insurance of returned Goods unless the Supplier agrees in writing otherwise.  If such charges are paid by the Supplier, those charges are not refundable if included in the purchase price in the event the Goods are later returned. If the Supplier accepts liability for transport charges and/or transport insurance, the Customer will indemnify the Supplier from all loss which occurs to the returned Goods during transport and/or delivery including all consequential loss. 

10.6. Acknowledgement of receipt of returned Goods by the Supplier does not amount to acceptance of those returned Goods nor of any liability to provide to the Customer an exchange or credit.  

11. Warranty  

11.1. The Customer acknowledges and accepts the Terms and Conditions of the Supplier’s applicable Warranty Policy.

12. Representations and implied terms

12.1. Except as expressly provided to the contrary in the Contract, all representations, warranties, terms and conditions in relation to the Goods (whether implied or otherwise) are hereby excluded to the maximum extent permitted by law.

12.2. The Customer agrees that if it is aware (or should be aware) that the Goods, the subject of an Offer, are for a particular purpose or are required to possess special characteristics, the Customer will clearly specify that purpose or those characteristics in any such Offer.

13. Termination and Cancellation

13.1. The Supplier may cancel an Order under a Contract to which these Terms and Conditions of Trade apply or cancel delivery of Goods at any time before the Goods are delivered by giving 7 days written notice to the Customer. On giving such notice, the Supplier shall repay to the Customer any sums paid in respect of the Purchase Price including Additional Charges if applicable. 

13.2. The Supplier shall not be liable for any loss or damage or consequential loss or damage whatever arising from such cancellation.

13.3. Without prejudice to the Supplier’s other remedies at law, the Supplier shall be entitled to cancel all or any part of any Order of the Customer which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment in the event of default (clause 15).

13.4. An Order cannot be cancelled by the Customer unless expressly agreed in writing. 

13.5. In the event the Customer cancels the delivery of Goods, the Customer shall be liable for any loss incurred by the Supplier (including, but not limited to, ay loss of profits) up to the time of cancellation.

13.6. If the Customer places an Order with the Supplier and the Supplier places an Order with a third party supplier to meet the Customer’s request, the Customer shall be liable for the Purchase price of the Goods ordered if the Customer cancels the Order and the Goods have already been dispatched. 

 

14. Limitation of liability

14.1. The Supplier’s liability is limited in relation the sale of Goods to the Customer as follows:

(a) the Supplier’s liability for any claims is limited at the Supplier’s option to either: 

(i) Replacing the Goods or supplying equivalent goods; 

(ii) Repairing the Goods; or

(iii) Repayment of the invoice price of the Goods. 

(h) the Supplier is not liable for any loss or damage to person or property arising from or caused in any way by the Goods,

(i) the Supplier will not be liable for any indirect, incidental, special or consequential losses, liability costs or damages, any loss of business opportunity, production, profit or savings, or any reasonable foreseeable losses. 

(j) This limitation of liability does not apply if it would restrict, modify or exclude the Customer’s rights in a way that is not permitted under ACL or other applicable laws. 

 

14.2. 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.

14.3. The Customer acknowledges and accepts that it is responsible for ensuring the Goods purchased are fit for the purpose for which they are intended.

14.4. The Customer acknowledges that it is not relying upon any representation made by the Supplier or its representatives whether in writing or verbally as to the suitability of the Goods for the purpose intended and the Customer acknowledges that it is responsible for undertaking its own due diligence with respect to the Goods and the respective fitness for purpose. 

14.5. The Customer indemnifies the Supplier against any damages arising out of fitment of the Goods which occurs due to the Customer’s failure to undertake proper due diligence with respect to the suitability of the Goods for the intended purpose.  

15. Default

15.1. The Customer will be in default if.

(a) the Customer breaches these Terms and Conditions of Trade or the Contract; 

(b) payment for the Goods has not been received by the Supplier by the due date for payment;

(c) the Customer becomes insolvent or unable to pay the Customer’s debts as and when they are due and payable;

(d) the Customer, being an individual, commits an act of bankruptcy or becomes an insolvent under administration;

(e) the Customer, being a body corporate, becomes an externally-administered body corporate or any proceedings are filed, or steps taken that may result in the Customer becoming an externally-administered body corporate; or

(f) the Supplier forms the opinion that the Customer’s credit worthiness or credit standing alters from that indicated in its Application.

 

15.2. If the Customer defaults, the Supplier may do one or more of the following:

(a) without notice to the Customer, make all money owing by the Customer to the Supplier, on any account whatsoever, immediately due and payable;

(b) treat the whole of the Contract and any other Contract with the Customer as repudiated and sue for breach of contract;

(c) refuse to supply or deliver any Goods to the Customer; 

(d) repossess or claim repossession of any Goods in the Customer’s possession where title has not passed to the Customer; 

(e) without notice to the Customer, withdraw or vary any credit the Supplier has provided to the Customer; 

(f) charge interest on any money owing until payment at the rate of 10% per annum, calculated daily.

16. Change of ownership

16.1. The Customer shall, no later than 14 days prior to any:

(a) change of ownership;

(k) change in registered particulars;

(l) alteration or addition to the shareholding or directorship,

notify the Supplier of the proposed change, alteration or addition and shall provide full details of the proposed change, alteration or addition to the Supplier.

 

16.2. The Customer is liable for any Goods supplied by the Supplier after such change, alteration or addition unless the Supplier has acknowledged by writing acceptance of the intended change, alteration or addition.

17. Force Majeure

17.1. The Supplier is not liable for failure to perform the Contract to the extent, and for so long as, its performance is prevented or delayed because of:

(a) circumstances outside the Supplier’s control;

(b) failure of the Supplier’s machinery; or

(c) failure of a supplier to the Supplier.

18. Waiver

18.1. The Supplier rights under a Contract may only be waived by notice in writing.  A waiver is limited to the specific instance to which it relates and to the specific purpose for which it is given.

19. Supplier may assign

19.1. The Supplier may assign a Contract to another person without notice to the Customer.

20. Severance

20.1. If a provision of a Contract would, but for this clause, be unenforceable:

(a) the provision must be read down to the extent necessary to avoid that result; and

(b) if the provision cannot be read down to that extent, it must be severed without altering the validity and enforceability of the remainder of the Contract.

21. Variation

21.1. The Supplier may vary these Terms and Conditions of Trade at any time without notice to the Customer.

21.2. The Customer may request that its Order be varied by providing a request in writing to the Supplier. A request for a variation must be agreed to in writing by the Supplier in order to have effect.

21.3. If the Customer wishes to vary its requirements after a Quote has been prepared by the Supplier or after the placement of an Order, the Supplier reserves the right to vary the Quote to include any Additional Charge in respect of any extra costs incurred or additional work carried out due to the variation, in accordance with its then current charge rates. A revised Quote issued by the Supplier in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods or Services or both.

21.4. The Supplier has an automatic extension of time for the provision of the Goods or Services equal to the delay caused by the variation.

22. Costs

22.1. The Customer must pay all of the Supplier’s costs and expenses in connection with the Contract, including legal expenses (on an indemnity basis), stamp duty and costs incurred in the recovery of monies owing by the Customer to the Supplier, or in otherwise enforcing the Supplier’s rights against the Customer, under the Contract.

23. Jurisdiction

23.1. These Terms and Conditions of Trade are governed by the laws of New South Wales. The parties submit to the jurisdiction of the courts of New South Wales

24. General

23.1 Names, descriptions, symbols and numbers being quoted or appearing on invoices are used for internal reference purposes of the Supplier only, and it is not implied that the parts supplied are the actual manufacturer’s whose part numbers may be quoted.

23.2 If any part of these Terms and Conditions of Trade is for any reason unenforceable, that part must be read down to the extent necessary to preserve its operation. If it cannot be read down, it must be severed.

23.3 The legal doctrine that a construction less favourable to the person putting forward this instrument should be accepted against it shall not apply to this Agreement.

23.4 The Purchaser agrees as an essential term of this agreement to act in good faith and honestly and in furtherance of the commercial efficacy intended by these Terms and Conditions of Trade. 

24. Interpretation

24.1 In these terms of trade, unless the context otherwise requires:

(a) a reference to writing includes email and other communication established through the Supplier's website;

(c) the singular includes the plural and vice versa;

(d) a reference to a clause or paragraph is a reference to a clause or paragraph of these terms of trade;

(e) a reference to a party to these terms of trade or any other document or arrangement includes that party's executors, administrators, successors and permitted assigns;

(f) where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

(g) headings are for ease of reference only and do not affect the meaning or interpretation of these terms of trade; and

(h) if the date on which any act, matter or thing is to be done falls on a day which is not a Business Day, that act, matter or thing:

(i) if it involves a payment other than a payment which is due on demand must be done on the preceding Business Day; and

(ii) in all other cases, must be done on the next Business Day.

(iii) in all other cases, must be done on the next Business Day.