STANDARD TERMS AND CONDITIONS OF TRADE
1.1 “Company” means Aldus Pty Ltd (ABN 38 085 318 494), its affiliates, and assigns or any person acting on behalf of and with the authority of Aldus Pty Ltd.
1.2 “Customer” means the person/s, firm, or company, authority or government department or agency, which purchases the Goods / Service from the Company.
1.3 “Goods” means all Goods or Services agreed in the Contract to be supplied by the Company (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
1.4 “Price” means the Price payable for the Goods as agreed between the Company and the Customer in accordance with clause 4 below.
1.5 “FCA” means Free Carrier. The Company shall deliver the Goods, cleared for export, to the carrier selected by the Customer. The Company loads the Goods if the carrier pickup is at the Company’s premises. From that point, the Customer bears the costs and risks of moving the goods to destination.
1.6 “CIP” means Carriage and Insurance Paid To. The Company shall pay for moving the Goods to their named place of destination. From the time the Goods are transferred to the first carrier, the Customer bears all risks of loss or damage. The Company shall purchase the cargo insurance.
2.1 The Customer is taken to have accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods.
2.2 These terms and conditions may only be amended with the Company’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and the Company.
3. Change in Control
3.1 The Customer shall give the Company not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or email address, or business practice).
4. Price and Payment
4.1 The Price shall be either:
(a) for standard Goods, the Price as at the date of delivery of the Goods according to the Company’s current price list; or
(b) for customised Goods, the Company’s quoted price (subject to clause 4.3) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 The Price of the Goods shall be exclusive of GST (if any) and of all costs or charges in relation to transit and packing materials, installation, carriage, insurance and additional labour.
4.3 The Company reserves the right to change the Price in the event of a variation to the Company’s quotation. Any variation from the plan of scheduled Services (including, but not limited to, any variation due to fluctuations in the currency exchange rate, or as a result of increases to the Company in the cost of materials and labour) will be charged for on the basis of the Company’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.4 Where this quotation is expressed to include the cost of installation of a machine or machines sold hereunder the quotation price is given on the basis that the installation will involve normal erection on the ground floor level and does not include the cost of connection to the electricity supply. Normal erection does not include dismantling the machine in order to gain access to the area where the machine or machines is or are to be installed and
Form: QMS-DOC-2 Page 2 of 9
Issue Date: 07.03.23
accordingly where installation would involve dismantling the machine in order to get it into operating position or involves installation above or below street level, the Customer will be responsible for payment of all charges and expenses associated with the installation.
4.5 At the Company’s sole discretion a deposit may be required and may be non-refundable for orders of any customised Goods.
4.6 Time for payment for the Goods being of the essence, subject to clauses 4.11 and 4.12, the Price will be payable by the Customer thirty (30) days following the date of any invoice given to the Customer by the Company unless otherwise agreed by the parties in writing.
4.7 The Customer acknowledges and accepts that the Company’s invoices are issued subject to errors and omissions excepted (E&OE) and may therefore, change without notice, where an error or omission is discovered. The Customer shall not be entitled to treat this contract as repudiated in the event of an E&OE.
4.8 Payment may be made by electronic/on-line banking, credit card (plus a surcharge), or by any other method as agreed to between the Customer and the Company.
4.9 The Customer shall pay any GST and all costs or charges in relation to transit and packing materials, installation, carriage in respect of deliveries of Goods, insurance and additional labour when the Customer is due to pay for the Goods.
4.10 Goods will not be returned to the Company unless it has been agreed.
4.11 The Company reserves the right to apply a restocking fee on goods returned for change of mind.
4.12 The Company reserves the right to levy an interest charge in the event of failure to pay by the due date. Such charge will be at the rate of 2% per month on overdue amount from the date payment is due until the date payment is made or the maximum interest rate permitted by law, whichever is less.
4.13 The Company reserves the right to change the terms of payment offered to the Customer following a suspension of performance under the provision of clause 4.12 above.
4.14 All payments payable to the Company under the Contract shall become due immediately on its termination notwithstanding any other provision.
4.15 Invoices are payable in full. The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless otherwise agreed or if the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Customer.
4.16 If the Customer owes the Company any money the Customer shall indemnify the Company from and against all costs and disbursements incurred by the Company in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, the Company’s collection agency costs, and bank dishonour fees).
4.17 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment) under these terms and conditions the Company may suspend or terminate the supply of Goods to the Customer. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company has exercised its rights under this clause.
5. Delivery of Goods
5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that:
(a) the Customer or the Customer’s nominated carrier takes possession of the Goods at the Company’s address; or
(b) the Company (or the Company’s nominated carrier) delivers the Goods to the Customer’s nominated address (“Delivery Point”) even if the Customer is not present at the address.
5.2 The Customer is responsible for providing complete and accurate delivery address information to the Company and for checking such information is correctly set up in the Sales Order Form.
Form: QMS-DOC-2 Page 3 of 9
Issue Date: 07.03.23
5.3 The Customer shall provide at the Delivery Point and at their expense, adequate and appropriate equipment and manual labour for taking delivery of the Goods.
5.4 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then the Company shall be entitled to charge a reasonable fee for redelivery and/or storage.
5.5 The Company may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.6 The Company shall not be liable for failure to ship or deliver or delay in shipment due to unavailability of freight or shipping space prohibitions or restrictions under any law or by any Government or any official or statutory authority, wreck, riot, epidemic, fire, flood, strike, embargo, war, hostilities between any powers, civil commotion, break-down of machinery, failure or delay in delivery or shipment on the part of manufacturers, merchants, suppliers or agents, delay in transportation, or force majeure, or due to any other cause whatsoever and whether of a similar nature or not, beyond the Company's control; and in the event of delay in shipment or delivery so caused, the time for shipment and/or delivery shall be extended for such reasonable period after such cause or causes shall have ceased to operate as shall enable the Company to ship and/or deliver and the Customer, shall be bound to accept the goods and pay the price notwithstanding such delays.
5.9 The Company shall not be liable for loss or shortage or damage to Goods in transit unless:
(a) Such loss, shortage or damage is caused by the Company’s negligence; and
(b) The carriers and the Company are notified thereof in writing, in the case of damage or shortage within seven (7) days of delivery or, in the case of non-delivery, within a reasonable time after the date upon which the Goods would have been delivered in the ordinary courses of events.
5.10 In the case of damage to Goods, the Customer must notify the Company’s customer service department within seven (7) days of delivery. If the Company receives a notice from the Customer under this clause, it will, at the Company’s election:
(a) replace the damaged Goods with appropriate Goods;
(b) repair the damaged Goods; or
(c) refund to the Customer any money paid for the damaged Goods.
6. Export Contracts
6.1 In the event that the Goods are exported, Delivery of the Goods may be subject to either FCA Contract or CIP Contract.
6.2 In the event of a FCA Contract the following shall apply:
(a) the Goods shall be delivered to the Customer by delivery on board the agreed upon mode of transport on the delivery date. The Company shall promptly notify the Customer that the Goods have been delivered aboard. Title (subject to clause 9) to, and risk in the Goods shall pass to the Customer upon such delivery being effected. The Company shall promptly provide the Customer with a clean shipped bill of lading in respect of the Goods.
(b) the Customer shall reserve the necessary space on board the agreed upon mode of transport and give the Company due notice of the loading berth and any revised delivery dates. The Customer shall bear any additional costs caused due to the failure of the agreed upon mode of transport being available to load the Goods on the delivery date.
6.3 In the event of a CIP contract the following shall apply:
(a) the Goods shall be delivered to the Customer by delivery on board the agreed upon mode of transport on or before the delivery date. The Company shall procure a contract of carriage and insure the Goods from dispatch until delivery on terms current in the trade for the benefit of the Customer. The Goods shall be at the risk of the Company as they are loaded on board. The Company shall promptly tender to the Customer a clean shipped bill of lading, the insurance policy and an invoice in respect of the Goods.
Form: QMS-DOC-2 Page 4 of 9
Issue Date: 07.03.23
(b) the Customer shall accept the documents tendered by the Company if they correspond to this contract and take delivery of the Goods at the port of destination and bear all other costs and charges arising out of shipment of the Goods to the port of destination.
7.1 Where the Company has agreed to install a machine sold hereunder, the structural soundness or suitability of the building in which it is to be installed or any part thereof shall be the responsibility of the Customer.
8.1 Risk of damage to or loss of the Goods passes to the Customer in accordance with the delivery terms of the particular contract agreed to by the parties (either FCA Contract or CIP Contract).
8.2 If any of the Goods are damaged or destroyed following Delivery but prior to ownership passing to the Customer, the Company is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
8.3 If the Customer requests the Company to leave Goods outside the Company’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
9.1 Notwithstanding any FCA or CIP terms to the contrary, the Company and the Customer agree that ownership of the Goods shall not pass until the Customer has paid the Company all amounts owing to the Company.
9.2 Receipt by the Company of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
9.3 It is further agreed that:
(a) until ownership of the Goods passes to the Customer in accordance with Clause 9.1 that the Customer is only a bailee of the Goods and must return the Goods to the Company on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for the Company and must pay to the Company the proceeds of any insurance in the event of the Goods being lost, damaged or destroyed.
(c) the Customer irrevocably authorises the Company to enter any premises where the Company believes the Goods are kept and recover possession of the Goods.
(d) the Company may recover possession of any Goods in transit whether or not Delivery has occurred.
(e) the Company may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
9.4 The Company may in its absolute discretion allow the Customer to substitute another person as purchaser of the goods on such terms and conditions as the Company may see fit. The contract is intended to bind the Customer as purchaser of the goods notwithstanding that it is contemplated that the Customer may obtain finance in some form or other, and/or that a finance company may in the Company's absolute discretion later be substituted for the Customer as the purchaser of the goods hereunder.
10.1 The Company provides a warranty in relation to the Goods, as set out in the Company Warranty Policy in Annexure A.
11. Handling and Storage of Goods
11.1 Customer shall comply with all laws and regulations applicable to the storage, handling, and distribution of the Goods, including, but not limited to those applicable to the export and import of the Goods and the registration or licensing of the Goods prior to sale.
Form: QMS-DOC-2 Page 5 of 9
Issue Date: 07.03.23
11.2 Customer shall while the Goods are under its responsibility, ensure storage and transport conditions do not jeopardize compliance with the general safety and performance requirements set up in the applicable laws and regulations and maintain environmental controls for the storage and transportation of products in compliance with all labelling and any written instruction from the Company.
11.3 Customer shall ensure that its inventory is rotated so that Goods with the shortest remaining useful life are shipped first.
12. Limitation of Liability
12.1 The Company acknowledges that Commonwealth, State and Territory legislation grant certain rights and remedies in relation to the sale or supply of goods and services which cannot be excluded, restricted or modified by agreement (Non-Excludable Guarantees). Other than the Non-Excludable Guarantees, all warranties, conditions, and other terms other than those expressly set out in these terms and conditions are excluded to the fullest extent permitted by law. If a Non-Excludable Guarantees is breached, then to the maximum extent permitted by law, the Company’s liability to the Customer is limited at the Company’s option to:
(a) in the case of goods:
(i) the replacement of the goods or supply of equivalent goods; or
(ii) repair of the goods; and
(b) in the case of services:
(i) resupply of the services; or
(ii) payment of the cost of resupplying the services.
12.2 Subject to clause 12.1:
(a) The Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the invoice value of Goods ordered; and
(b) The Company shall not be liable to the Customer for any costs, claims, damages or expenses, whether arising out of or in connection with Contract or any other breach of contract or statutory duty or any tortious act or omission:
(i) of an indirect or consequential nature;
(ii) that are calculated by reference to profits, income, production or accruals or any loss thereof on a time or any other basis;
(iii) that are calculated by reference to a loss of business, depletion of goodwill or any other form of pure economic loss, or
(iv) to the extent that the same has been or will be made good or its otherwise compensated without cost to the other Party.
13. Force Majeure
13.1 The Company reserves the right to defer the date of delivery or to cancel the contract or reduce the volume of the goods ordered by the Customer (without liability to the Customer) and is otherwise excused from any failure to perform its obligations hereunder, if it is prevented from or delayed in carrying on of its business due to circumstances beyond the reasonable control of the Company including but without limitation, acts of God, government actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to the Company’s or another party’s workforce), or restrains or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that if the event in question continues for a continuing period of excess of ninety (90) days, the Customer shall be entitled to give notice in writing to the Company to terminate the Contract.
Form: QMS-DOC-2 Page 6 of 9
Issue Date: 07.03.23
14. Intellectual Property
14.1 Where the Company has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of the Company.
14.2 The Customer warrants that all designs, specifications or instructions given to the Company will not cause the Company to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify the Company against any action taken by a third party against the Company in respect of any such infringement.
15.1 The Company may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice the Company shall repay to the Customer any money paid by the Customer for the Goods.
15.2 In the event that the Customer cancels delivery of Goods, the Customer shall be liable for any direct loss incurred by the Company as a direct result of the cancellation.
15.3 Cancellation of orders for Goods made to the Customer’s specifications, or for non-stocklist items, will not be accepted once production has commenced, or an order has been placed.
16. Dispute Resolution
16.1 The parties will attempt to settle all issues between the parties arising out of, relating to or in connection with these terms and conditions through good faith negotiations.
16.2 Should those efforts not be successful, all disputes, controversies or claims arising out of, relating to or in connection with these terms and conditions, including any questions regarding their existence, validity or cancellation, will be resolved by arbitration in accordance with the ACICA Arbitration Rules. The seat of the arbitration shall be Sydney. The language will be English.
16.3 The arbitration will be final and binding on the parties.
17. Unpaid Company’s Rights
17.1 Where the Customer has left any item with the Company for repair, modification, exchange or for the Company to perform any other service in relation to the item and the Company has not received or been tendered the whole of any moneys owing to it by the Customer, the Company shall have, until all moneys owing to the Company are paid:
(a) a lien on the item; and
(b) the right to retain or sell the item, such sale to be undertaken in accordance with any legislation applicable to the sale or disposal of uncollected goods.
17.2 The lien of the Company shall continue despite the commencement of proceedings, or judgment for any moneys owing to the Company having been obtained against the Customer.
18.1 The failure by a party to enforce any right provided under these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect a party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 This document is governed by and is to be construed in accordance with the laws in force in New South Wales.
18.3 Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the Courts of New South Wales and any Courts which have jurisdiction to hear appeals from any of those Courts and waives any right to object to any proceedings being brought in those Courts. The Company may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
Form: QMS-DOC-2 Page 7 of 9
Issue Date: 07.03.23
18.4 The Customer agrees that the Company may amend these terms and conditions at any time. If the Company makes a change to these terms and conditions, then that change will take effect from the date on which the Company notifies the Customer of such change. The Customer will be taken to have accepted such changes if the Customer makes a further request for the Company to provide Goods to the Customer.
18.5 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm or other event beyond the reasonable control of either party.
18.6 The Customer warrants that it has the power to enter into this agreement and has obtained all necessary authorisations to allow it to do so, and that this agreement creates binding and valid legal obligations on it.