1.1. This document sets out the Terms and Conditions applying to the provision of products and services to you (“the Customer”) by the Supplier. These Terms and Conditions, as amended from time to time, are incorporated into all Agreements for the supply of goods or services by the Supplier (“the Agreement”).
1.2. A reference to the Supplier in these Terms and Conditions is a reference to: National Plastics Group Pty Ltd ACN 104 778 930; Tanks R US Australia Pty Ltd ACN 112 089 362; Agricultural Products of Australia Pty Ltd ACN 113 399 214; National Barriers Australia Pty Ltd ACN 113 399 241; Barrier Systems Australia Pty Ltd ACN 113 399 223; Barrier Systems International Pty Ltd ACN 113 399 232; Rotacast Plastics Pty Ltd ACN 113 399 250; National Polymers Pty Ltd ACN 129 437 903;
1.3. The Customer acknowledges that the Supplier may impose a charge for accepting payments by credit card.
2.1. The Supplier may in its absolute discretion refuse the Customer credit facilities or suspend or discontinue the supply of goods and services to the Customer or to increase or vary the Customer’s credit limit at any time without any obligation to provide to the Customer or the Customer’s guarantors, a reason for such action.
2.2. Any credit limit is solely for the benefit of the Supplier. The obligations of the Customer under this Agreement remain unchanged if the credit limit is exceeded or not specified at any time.
2.3. “The Price” in relation to each and all of the goods or services delivered to the Customer by the Supplier must be paid for in full by the Customer thirty (30) days after the goods or services were delivered or provided. (“the Due Date”).
2.4. If the Customer fails to make full payment by the Due Date interest will be charged at a rate of 10% per year calculated on daily balances on monies owed by the Customer to the Supplier both before and (as a separate and independent obligation) after any judgment.
2.5. The Customer will pay the Supplier for any and all of the Supplier’s expenses including but not limited to any legal costs (on an indemnity basis), stamp duties and other expenses payable under these Terms and Conditions together with any collection costs or dishonoured cheque fees incurred in connection with the enforcement of, or the preservation of any rights under these Terms and Conditions. Such costs, duties and other expenses as well as interest payable pursuant to clause 2.4 may be recovered as a liquidated debt.
2.6. If there is any default by the Customer in making due payment to the Supplier of any monies owing by the Customer, or if an administrator, liquidator or provisional liquidator or receiver and manager or controller is appointed in respect of the Customer or the Customer goes into bankruptcy or commits any act of bankruptcy, or if there is a breach by the Customer of any of these Terms and Conditions then:-
2.6.1. All monies payable by the Customer to the Supplier shall at the Supplier’s election become immediately due and payable notwithstanding that the due date for payment of any of the monies shall not have expired;
2.6.2. The Supplier may terminate this Agreement forthwith.
3.1. In consideration of payment by the Customer to the Supplier of “the Price” in relation to each of the goods and services, as specified by the Supplier, or otherwise communicated to the Customer, the Supplier sells and the Customer buys the goods and services subject to these Terms and Conditions.
3.2. Upon placing an order, the Customer must pay to the Supplier the amount of any deposit required by the Supplier that is specified in the order form.
3.3. The Customer must pay to the Supplier the Price (or the balance of the Price if a deposit is paid pursuant to clause 3.1) upon delivery of the goods to the Customer pursuant to clause 6.
3.4. The Customer shall pay the Supplier interest on any amount due and not paid by the Customer within the time required by these Terms and Conditions at the rate of 10% per year calculated on daily balances.
A statement in writing signed by the Supplier, stating the balance of the monies due to the Supplier by the Customer, shall be prima facie evidence of the amount of indebtedness of the Customer, as at the date of the statement.
5.1. Unless otherwise indicated all amounts referred to in these Terms and Conditions are exclusive of GST. A recipient of a taxable supply made under or in connection with these Terms and Conditions must indemnify the supplier against, and must pay the supplier the amount of, any GST for which the supplier is liable in respect of that taxable supply. The supplier must issue a tax invoice to the recipient for each taxable supply.
5.2. The recipient must make a payment under paragraph 5.1:
5.2.1. if the Price is due on delivery – at the same time as the consideration (or the first part of it) for the taxable supply is due; or
5.2.2. if there is a due date for the consideration for the taxable supply – either on that date or within 30 days of receiving a tax invoice for the taxable supply (whichever is the later).
6.1. The Customer must elect to either have the goods delivered (“Delivery Order”) collect the goods from the Supplier (“Collection Order”):
6.2. While the Supplier shall use reasonable endeavours to carry out its obligations under the Agreement as soon as reasonably practicable, any Delivery dates and times, and any usual manufacturing times, made known to the Customer are estimates only. If any such estimates are exceeded, the Customer is still bound by the terms of the Agreement.
6.3. Delivery may be carried out in instalments. Each instalment will be treated as a separate Delivery with the price being apportioned in accordance with the proportion of goods delivered.
6.4. Delivery of goods to the Customer occurs when they are dispatched from the Supplier’s premises. The Supplier reserves the right to make and/or approve any arrangements regarding the transportation of the goods from the Supplier to the Customer, and nominate the transportation service to be used. Additional fees, as specified by the Supplier in a quotation or otherwise, may be charged by the Supplier for the packaging, transportation and installation of the goods. The goods will be dispatched to an address or addresses nominated by the Customer. If the Customer is not present at the specified address for delivery then the Supplier may unload the goods at that address and the goods shall be deemed to be received by the Customer and the Supplier shall not be liable for any claims, costs or losses suffered by the Customer.
6.5. Delivery of goods to the Customer occurs when the Customer takes possession of the goods. A packaging fee will be charged where other than the Supplier’s wrapping or packaging is required. The Supplier will notify the Customer as soon as each order is ready for collection. Within seven (7) days of receiving notification that an order is ready for collection pursuant to this clause, the Customer must remove the order from the Supplier’s premises.
7.1. The goods shall be at the sole risk of the Customer as soon as Delivery occurs pursuant to clause 5. Property and Title to the goods shall remain with the Supplier, and will not pass to the Customer until those goods and all other amounts owed to the Supplier by the Customer have been paid for in full. If payment in full is not made pursuant to clauses 2 or 3, the Supplier shall have the right, with or without prior notice, to recover possession of the whole or any part of the goods (and the Customer agrees that the Supplier may enter any premises occupied by the Customer to satisfy that purpose) without prejudice to other rights and remedies.
7.2. If the Customer has purchased the goods for the purpose of any manner of resale, then until those goods and all other amounts owed to the Supplier by the Customer have been paid for in full:-
7.2.1. the Customer will hold the goods as a fiduciary and bailee for the Supplier;
7.2.2. the goods must be stored separately and in a manner enabling them to be identified as goods of the Supplier and cross-referenced to particular invoices and the Customer acknowledges that if it should process or mix the goods with other products or items such that the goods are no longer separately identifiable then the Customer and Supplier will be owners in common of the new product;
7.2.3. the Customer may sell the goods in the ordinary course of its business as bailee for the Supplier and will hold the proceeds of sale in a separate account on trust for the Supplier and account to the Supplier for those proceeds; and
7.2.4. the Supplier may require the Customer to return the goods to it on demand and may enter upon the premises of the Customer to inspect or repossess the goods.
7.3. Despite clauses 7.1 and 7.2 the Supplier will be entitled to maintain an action against the Customer for the purchase price of the goods.
8.1. Cancellations will be accepted by the Supplier at no charge only if manufacture of the goods has not yet commenced. If manufacture of the goods has commenced the Supplier is entitled to charge the Customer for the value of the work completed by the Supplier up to the date of cancellation, and the Supplier may, at its sole discretion, charge the Customer an additional cancellation fee calculated as 20% of the Price.
8.2. If the goods have been Delivered – the Customer is not entitled to return the goods.
8.3. The Supplier must be notified of any cancellations in writing as soon as possible, but in any event, before the date of Delivery.
9.1. Without limiting the generality of any other clause in these Terms and Conditions, the Supplier may terminate the Agreement immediately by notice in writing if: the Customer is in breach of any term of these Terms and Conditions; the Customer becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration; the Customer, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving; the Customer, being a natural person, dies; or the Customer ceases or threatens to cease conducting its business in the normal manner.
9.2. If notice is given to the Customer pursuant to clause 9.1 – the Supplier, in addition to terminating the Agreement: may repossess the goods if payment is not complete; is entitled to charge the Customer for the value of the work completed by the Supplier up to the date of termination and may retain any moneys already paid by the Customer for any such work; shall be regarded as discharged from any further obligations under these Terms and Conditions; and may pursue any additional or alternative remedies provided by law.
10.1. Subject to clause 12.1, the Customer indemnifies, on a continuing basis and on a full indemnity basis, the Supplier from and against any liability, loss, expense or demand for or arising from: any false, misleading, deceptive or misdescriptive representation or statement made by the Customer in respect of the goods to any person; any improper use or mismanagement of the goods by the Customer; any use of the goods in a manner not reasonably contemplated by the Supplier; any modification of the goods not authorised by the Supplier; any use of the goods in a manner contrary to law; any subjection of the goods to unusual or unrecommended physical or environmental stress; the Customer’s failure to comply with any terms of these Terms and Conditions; or the Customer’s failure or refusal to adopt any recommendations of the Supplier in relation to the goods.
10.2. This indemnity survives termination of this agreement by either party for any reason.
11.1. The Customer hereby acknowledges that, in deciding to enter into this Agreement, the Customer has not relied in any way on the Supplier’s skill or judgement and that the Customer has satisfied itself as to the condition and suitability of the goods and their fitness for the Customer’s purposes, and does not rely on any representation, warranty or other term made by or on behalf of the Supplier which is not set out in the Agreement.
11.2. The Customer will, prior to the acceptance of the goods by the Customer, examine the goods and satisfy itself as to their compliance with any relevant specifications as well as their condition, suitability and fitness.
11.3. Subject to clause 12.1, if the goods are identified as second-hand goods then the Customer acknowledges that the goods are second-hand, and that all conditions and warranties of fitness and suitability implied by the Trade Practices Act 1974 (Cth) (“the TPA”) and any other relevant statute are expressly negatived.
12.1. Nothing in these Terms and Conditions is intended to exclude, restrict or modify rights which the Customer may have under the TPA or any other legislation which may not be excluded, restricted or modified by agreement. If under any law, any terms which apply to the supply of goods or services under these Terms and Conditions cannot legally be excluded, restricted or modified then those terms apply to the extent required by that law. All terms which would otherwise be implied are excluded except as stated in these Terms and Conditions.
12.2. To the extent permitted by law, the Supplier’s sole liability for any breach of any term is limited:-
12.2.1. in the case of goods supplied by the Supplier, to any one of the following as determined by the Supplier :-
18.104.22.168. the replacement of the goods or supply of equivalent goods;
22.214.171.124. the repair of the goods;
126.96.36.199. the payment of the cost of replacing the goods or acquiring equivalent goods;
188.8.131.52. the payment of the cost of having the goods repaired;
12.2.2. in the case of services supplied by the Supplier, to the supply of the services again, or to the payment of the cost of having the services supplied again.
12.3. Subject to clause 12.2, the Supplier is not liable for any damage, economic loss or loss of profits whether direct, indirect, general, special or consequential arising out of a breach of an implied or expressed term, or suffered as a result of the negligence of the Supplier or its employees or agents.
13.1. To secure payment of all monies which are or may become payable by the Customer to the Supplier under this Agreement the Customer (or where the Customer is comprised of two or more persons then each person jointly and severally) hereby charges with the due payment of all of those monies all of the Customer’s interest in real property wherever located both present and future and the Customer consents to the Supplier lodging a caveat or caveats over such property to protect its interest.
13.2. Upon demand by the Supplier, the Customer agrees to immediately execute a mortgage or other instrument in terms satisfactory to the Supplier to further secure the Customer’s indebtedness to the Supplier.
13.3. Should the Customer fail within a reasonable time of such demand to execute such mortgage or other instrument then the Customer appoints irrevocably the credit manager or a duly authorised officer of the Supplier to be the Customer’s lawful attorney to execute any such mortgage or other instrument.
14.1. In the event that the whole or any part or parts of any clause in this Agreement is found to be unenforceable by a Court then such clause or part thereof shall be to that extent severed from these Terms and Conditions without effect to the validity and enforceability of the remainder of these Terms and Conditions.
14.2. These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of Queensland. The parties submit to the exclusive jurisdiction of the Courts in Brisbane and agree that proceedings may be commenced in any court in Brisbane and consent to that court having jurisdiction by virtue of this Clause notwithstanding that the court would not have such jurisdiction without this consent.
14.3. Notice required to be given by the Customer to the Supplier pursuant to these Terms and Conditions may be delivered personally or sent by post to the credit manager of the Supplier at the Supplier’s postal address at 5 Christensen Road, Stapylton 4207 or PO Box 1049, Cleveland QLD 4163 and unless the contrary is proved shall be taken as delivered when received by the Supplier. Notice to be given to the Customer by the Supplier may be delivered personally or sent by post to the Customer’s last known address and shall be taken as delivered on the second business day following posting.
14.4. These Terms and Conditions, constitute the entire Agreement between the Parties and supersedes all prior representations, agreements, statements and understandings unless they have been approved in writing by the Supplier.