Alcoa Wheel Products Australia
Debtors General Terms and Conditions of Sale
1.The Buyer, by ordering goods and/or accepting delivery of goods from Alcoa Wheel Products PTY. LTD., incorporated in Victoria (HEREINAFTER CALLED “THE COMPANY”) acknowledges and agrees that it is expressly contracting with the Company upon the terms and conditions set out herein and that it will be bound by these terms and conditions which form part of and are incorporated into the Agreement between the Company and the Buyer.
No binding Contract shall be concluded between the parties until the Company raises an invoice in respect of the quoted goods.
3. QUOTED PRICES AND PRICE LIST
a) Prices stated on all quotations are firm for thirty (30) days from the date of the quotation. Thereafter prices stated may change without notice.
b) Non-standard items, diameters, material & lengths will be quoted on request.
c) Prices in effect at the time of delivery will apply.
d) The Company reserves the right to set minimum order values.
e) The prices of the goods specified in any quotation or price list do not include GST payable to any governmental authority. All such GST shall be for the account of the Buyer.
Terms of payment for any goods are net-cash thirty (30) days from end of month of date of invoice unless otherwise agreed in writing.
5. Goods belonging to the Company shall be stored so that they are identifiable as such. That the Company retains title to the goods shall not affect its rights as an unpaid seller. Furthermore if goods are purchased by the Buyer and payment is overdue the Company shall be entitled to repossess goods belonging to it and to enter any premises, without notice, for this purpose. If good belonging to the Company are disposed by the Buyer, the Company shall be entitled to trace the sale or insurance proceeds, which proceeds shall be held by the buyer in a separate bank account on trust for the Company.
6. a) Interest shall be paid by the Buyer to the Company on any monies which have not been paid when due at a rate of 1.5 percent per month calculated on a daily basis on the amount outstanding and such interest shall accrue daily.
b) Subject to Clause 15, returns for credit must be received by the Company within fourteen (14) days of the date of the invoice, therefore, freight, prepaid by the Buyer. All goods so returned must be accompanied by a legible copy of the invoice raised for those goods and the goods and their packaging must be received by the Company in a clean re-sealable condition. All goods returned for credit are subject to a ten percent (10%) handling charge.
a) The estimated delivery date shown in any document is that date by which the Company reasonably believes that the goods will be delivered by it on the assumption that no delays of the nature referred to in paragraph (C) of the Clause occurs.
b) Whilst the Company will make every reasonable endeavour to cause the good to be delivered by the estimated delivery date, it does not guarantee to do so and the time in that regard shall not be nor will it deem to be of the essence of any contract.
c) Delivery of the goods to a forwarder shall constitute delivery to the Buyer and regardless of freight payment, all risk in relation to the goods shall pass to the Buyer at that time.
d) The Buyer acknowledges that delays may occur in manufacture or delivery of the goods or any instalment thereof for reasons or causes beyond the competence and control of the Company including, but not limited to, delays arising out of or as a consequence of the procuring of the goods, shipping of the goods, errors or default manufacturers, suppliers, carriers, or transporters, strikes, lock-outs, release of the goods by customs or excise authorities, war, threats of weather, fire, discontinuance of manufacturer of supply, perils or accidents during transit, shortage of raw materials, shortage of labour, accidents to machinery, break downs and governmental prohibition or limitations.
e) Where delays of the nature referred to in paragraph (d) of this clause occur, the delivery of the goods or any installation thereof may be suspended by the Company and:
i) Such suspension shall not be in breach of any contract nor entitle the Buyer to terminate any contract;
ii) The date for delivery of such goods or instalments shall be extended according to the nature and length of such delays.
8. If the Buyer shall be unable or unwilling to take delivery of the goods when available, the Buyer shall reimburse the Company for shortage, insurance charges and other costs incurred by the Company. This obligation shall not affect any of the rights the Company may have as a result of the Buyer’s failure to accept delivery.
Should the Buyer:
a) Fail to make payment of the price or any part thereof on the due date; or
b) Fail to perform any of its obligations hereunder, or
c) Prior to making such payment, convene a meeting of its creditors or become insolvent or subject to the laws of bankruptcy or, being a company, convene a meeting for the purpose of going in liquidation or having a winding up petition presented against it or suffer a receiver, receiver and manager, trustee, inspector, or official manager to be appointed or have execution levied against it; then the Buyer shall be in default under these conditions and the Company may at its option and without prejudice to any of its rights under these conditions or in law or equity, do one or more of the following:
i) Suspend or terminate any contract; or
ii) Require payment in cash before or on delivery of the goods (notwithstanding the terms of payments specified herein); or
iii) Stop all or any deliveries of further goods; or
iv) Sue the buyer for breach of contract.
Termination by Buyer of orders, in whole or part, must be by written or telegraphic notice to the Company. The Company shall stop work immediately upon receipt of such notice and may claim reimbursement for all costs incurred resulting from the termination including, but not limited to, all costs including liabilities to sub-contractors and all consequential losses including loss of profit and all associated costs including storage.
The Company reserves the right to ship in full containers in conformance with the Company standard packaging specifications.
12. The Buyer acknowledges that special unit quantity packaging is available at an extra cost to the Buyer.
a) If any of the goods sold are defective due to defects in material or workmanship, the Company will at its expense remedy those defects which are bought to its attention by written notice within seven (7) days of such defect being discovered by the Buyer PROVIDED HOWEVER THAT such notice is given prior to the expiration or ninety (90) days from the date of the delivery of the goods. Notwithstanding the foregoing, the liability of the Company shall be limited furnishing replacement goods or parts of goods found by the Company to be defective in materials or workmanship free of charge at the Buyers delivery point, but without cost of installation if required.
b) Notwithstanding anything implied or expressly to the contrary contained above, the Company shall not be liable for any defects or damage whatsoever unless the Buyer has first given reasonable opportunity to the Company to remedy the said defects or damage to the remedied by another person on its behalf.
c) notwithstanding any other provision to the contrary contained in these Terms & Conditions, the Company shall not be liable for any indirect, consequential or punitive damages (including loss of profit) arising out of any act or omission of the Company in the course of supplying the goods, whether arising through the negligence of the Company its servants or agents or otherwise. Subject to Clause 14, all warranties, representations, promises or conditions in respect of any of the goods sold, either expressed or implied, including but not limited to warranties as to merchantability or fitness for purpose, which are not expressly referred to herein are hereby excluded.
14. Provisions of the Trade Practices Act 1974 (as amended) or State and Federal legislation may imply warranties or impose obligations on the Company which cannot be excluded, restricted or modified at all or except to a limited extent. To the extent permitted by law, the Company’s liability under any such provisions shall be limited to the Company’s option to:
a) Replacement of the goods; or
b) Supply of equivalent goods; or
c) Repair of the goods; or
d) Payment of the cost of replacing the goods; or
e) Purchase of equivalent goods; or
f) Payment of the cost of having the goods repaired
The terms and conditions stated herein shall be the only such terms and conditions and agent, employee or representative of the Company shall have any authority whatsoever to bind the Company to any affirmation, representation, warranty or condition concerning the goods sold hereunder unless such affirmation, representation, warranty or condition is specifically included in writing within these conditions.
16. The terms and conditions contained herein shall constitute the entire agreement between the parties except to the extent that such terms conditions hereof are modified by an instrument in writing signed by both parties. No representations, statements or amendments to these Terms and Conditions shall be of any effect unless recorded in writing and signed by the Buyer and the Company.
17. The Validity and interpretation of these Terms and Conditions and all rights, obligations and liabilities arising hereunder shall be governed by the laws of the State of Victoria. The Buyer hereby submits to the jurisdiction of the Courts of Victoria, including the Federal Courts located therein.
18. No failure or delay of the Company to exercise any rights given to it hereunder and no custom or practice of the Company’s at variance with the terms hereof shall constitute a waiver of the Company’s right to demand exact compliance with the Terms and Conditions hereof. Waiver by the Company of any particular default by the Buyers shall not affect or prejudice the rights of the Company with respect to any subsequent default of the same or of a different nature. Any delay or omission by the Company as to any subsequent default or consequences of such default.
19. No delegation or assignment by the Buyer of any obligation owed, or performance of any obligation, shall be made without the express written permission of the Company and any attempt at assignment or delegation of such obligation shall be void.
20. If any term of condition or part thereof contained in this agreement is held to be invalid or void for any reason, all of the remaining terms and conditions (or part thereof) shall remain in full force and effect.
21. The customer shall pay to the company forthwith on demand all costs, charges and expenses as between solicitors and own client incurred by the company in enforcing or attempting to enforce all or any of the rights, powers or remedies hereunder or a law or otherwise in connection in collecting or recovering all or any money now or in the future owing by the customer to the company with respect to the account.
22. The customer agrees and acknowledges that no request to change the name of the account or to operate the account in a different name shall affect or discharge the customer liability.
23. If the Company considers it relevant to access the Buyers application for commercial credit, the Buyer hereby agrees to the Company obtaining from a credit reporting agency a credit report containing personal credit information about the Buyer in relation to commercial credit provided by the Company.
24. The Buyer agrees that the Company may give to and seek from any credit providers named in this credit application and any credit providers that may be named in a credit report issued by a credit reporting agency information can include any information about the Buyers credit worthiness, credit standing, credit history or credit capacity that credit providers are allowed to give or receive from each other under the Privacy Act.
The Buyer understands the information may be used for the following purposes:
a) To access an application by the Buyer for credit
b) To notify other credit providers of a default by the Buyer
c) To exchange information with other credit providers as to the status of this loan where the Buyer is in default with other credit providers
d) To access the Buyers credit worthiness