NUTEC INDUSTRIES TERMS & CONDITIONS OF SALE

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1. DEFINITIONS

NUTEC INDUSTRIES means NuTec Industries Pty Ltd (ACN 645 570 494)

Contract means the contract for supply of Goods including any credit application, Purchase Contract and these terms and conditions.

Customer means the purchases of goods from NUTEC INDUSTRIES, the entity set out in the NUTEC INDUSTRIES credit application form or the Purchase Contract or their agents and includes a bailee or consignee.

Default has the meaning set out in clause 6.

Goods mean all goods and equipment that NUTEC INDUSTRIES supplies to the Customer on a sale, bailment, consignment or any other basis.

Guarantor means the guarantor set out in the credit application or Contract.

Invoice Due Date means the latest date for which payment of an invoice can be made by a Customer, being the date of issue for non credit approved Customers and for credit approved Customers, 30 days from the date the invoice is issued.

Purchase Contract means a purchase order for Goods entered into by the parties setting out the details of a purchase transaction.

Purchase Price means the aggregate price for the Goods set out in the Purchase Contract or advertised in the NUTEC INDUSTRIES online shop.

Online Shop is the electronic shop available at www.nutecindustries.com.au/shop

The word include is construed without limitation.

 

2. DELIVERY AND PAYMENT

2.1 NUTEC INDUSTRIES will not be liable for any delay or non delivery of any Goods ordered.

2.2 The Customer may be liable for freight costs for Goods.

2.3 The Customer will pay to NUTEC INDUSTRIES all of the Purchase Price prior to delivery in the case a Credit Application has not been completed by the Customer and a Credit facility has not been approved by NUTEC INDUSTRIES, or following delivery of the Goods, by the Invoice Due Date if a Credit Application has been completed by the Customer and a Credit facility has been approved by NUTEC INDUSTRIES.

2.4 If NUTEC INDUSTRIES notifies the Customer in writing that it will provide a credit facility then the Customer must pay NUTEC INDUSTRIES for each Purchase Contract by the Invoice Due Date.

2.5 NUTEC INDUSTRIES may:

a) withdraw the facility at any time without notice; or

b) from time to time or at any time increase or decrease the limit of the facility provided without notice to the Customer.

2.6 If the Customer fails to pay in accordance with these terms then all outstanding amounts become immediately payable and NUTEC INDUSTRIES may:

a) immediately suspend all further credit;

b) Charge interest on all outstanding amounts at fifteen percent (15%) per annum calculated daily.

2.7 NUTEC INDUSTRIES may vary the interest rate charged on outstanding amounts by 1 week’s notice to the Customer.

2.8 Payment by cheque will be deemed to have occurred when the cheque has been honoured. Payment by credit card may incur a surcharge.

2.9 Any expenses, costs (including full legal and collection costs) or duties incurred by NUTEC INDUSTRIES in relation to the supply of Goods to the Customer in accordance with these terms and conditions or the enforcement of any rights contained in this Contract will be added to the amount outstanding and paid by the Customer.

2.10 NUTEC INDUSTRIES may apply any amounts received from a Customer to particular amounts outstanding at its sole discretion.

2.11 In the case of dispute regarding payment the Customer must pay all undisputed amounts without delay.

2.12 The Customer agrees that the statement provided by an authorised representative of NUTEC INDUSTRIES shall be conclusive evidence as to the amount owing to NUTEC INDUSTRIES by the Customer.

2.13 NUTEC INDUSTRIES reserves the right to change the Purchase Price at any time prior to acceptance of a Purchase Contract.

 

3. RETURNS

3.1 NUTEC INDUSTRIES will credit the Customer for, or replace, goods returned on NUTEC INDUSTRIES’s prior approval if:

a) The goods are a stocked line (no returns on buy-in products)

b) The goods are returned in their original condition and packaging, and in full package quantities within 14 days of dispatch;

c) A copy of the corresponding tax invoice or delivery docket supplied with the Goods;

d) the Customer bears all freight charges incurred in returning the Goods (unless agreed otherwise).

3.2 Any credit granted by NUTEC INDUSTRIES to the Customer will expire twelve months after the date of the grant.

3.3 NUTEC INDUSTRIES credit notes are not redeemable for cash.

 

4. TITLE, RISK AND INSURANCE

4.1 NUTEC INDUSTRIES retains ownership of the Goods until the full Purchase Price has been received by NUTEC INDUSTRIES in cleared funds.

4.2 All risk in the Goods and the responsibility to insure the Goods will pass from NUTEC INDUSTRIES to the Customer at the time when the goods have been handed over to the Customer or their Agent / Representative, placed in/on the vehicle of the Customer, Representative or their Agent, which is to effect delivery from NUTEC INDUSTRIES store or warehouse or delivery to the purchaser which ever is the sooner.  The goods shall remain at the Purchaser’s risk at all times unless and until NUTEC INDUSTRIES retakes possession of the goods pursuant to these terms and conditions.

4.3 The Customer must effect, maintain and provide evidence to NUTEC INDUSTRIES of:

a) sufficient insurance cover for loss or Damage to any Goods; and

b) where NUTEC INDUSTRIES has supplied Goods on hire or consignment, third party insurance which covers the public liability risk of NUTEC INDUSTRIES to a minimum amount of $20 million.

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5. CLAIMS

5.1 NUTEC INDUSTRIES shall not be liable for any loss or damage whatsoever and however arising whether direct indirect or consequential or in respect of any claim whenever and however made for any loss or damage, deterioration, deficiency or other fault or harm in the goods manufactured, products supplied, work executed or services provided by or on behalf of or in any arrangement with NUTEC INDUSTRIES or occasioned to the purchaser or third party or other party or to his or their property or interest or whether or not due to the negligence of NUTEC INDUSTRIES its servants or agents.

5.2 As soon as any of the fact or matter which form any part of any claim or complaint whatsoever become known to the purchaser, the purchaser shall within fourteen days notify NUTEC INDUSTRIES in writing of the same.

5.3 NUTEC INDUSTRIES shall not be liable in any circumstances for any;

(i)     defects or damages caused in while or in part by use, misuse, abuse, neglect, electrical or other overload, no suitable lubricant, improper installation repair or alteration (other than by NUTEC INDUSTRIES) or accident.

(ii)   any transport, freight charges, installation, removal or other costs;

(iii)  defects in goods or products not manufactured by it, but NUTEC INDUSTRIES will endeavour to pass on to the purchaser the benefit of any claim made by NUTEC INDUSTRIES and accepted by the manufacturer of such goods or products under a warranty given by the manufacturer of such goods or products provided that nothing contained in this subparagraph shall limit the rights of the purchaser to proceed against NUTEC INDUSTRIES pursuant to the Trade Practices Act1974.

(iv)  technical advice or assistance given or rendered by it to the purchaser or not in connection with the manufacture construction or supply of goods or products for or to the purchaser provided always that NuTec Industries has rendered such services with due care and skill and that any material supplied in connection with those services are reasonably fit for the purpose for which they supplied.

5.4 The exemption, limitations, terms and conditions in these terms and conditions shall apply whether or not the loss or damage is caused by negligence or actions constituting fundamental breach of contract.

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6. ACCESS

6.1       The Customer shall ensure that NUTEC INDUSTRIES, and any freight companies engaged by NUTEC INDUSTRIES, have clear and free access to the delivery site at all times to enable them to undertake delivery of goods. NUTEC INDUSTRIES shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of NUTEC INDUSTRIES.

6.2       It is the responsibility of the Purchaser to ensure that access is suitable to accept the weight of laden trucks.

 

7. CONSIGNMENT AND BAILMENT

7.1 A consignment Customer must comply with the provisions of this clause in addition to all other terms and conditions.

7.2 NUTEC INDUSTRIES may by written agreement choose to supply Goods to Customer’s on consignment. NUTEC INDUSTRIES will use reasonable endeavours to supply all Goods ordered under a consignment agreement.

7.3 NUTEC INDUSTRIES may charge the Customer freight and shipping charges for Goods supplied on consignment, payable by the Invoice Due Date. .

7.4 As soon as practicable after the end of each calendar month NUTEC INDUSTRIES shall render a statement to the Customer showing sales during the preceding month the amount of which is payable under clause 2.4.

7.5 NUTEC INDUSTRIES bears no liability whatsoever for the nature or operation of a consignment Customer’s business or employees.

7.6 A consignment Customer is solely responsible for all Goods supplied, mobilisation and demobilisation of Goods, damage to the Goods and all associated costs.

7.7 If NUTEC INDUSTRIES supplies Goods including containers or other items under a bailment type arrangement, the title to any such items will remain with NUTEC INDUSTRIES and clause 6 will apply. The Customer will not charge or allow any other party to use the bailed Goods.

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8. DEFAULT AND TERMINATION

8.1 NUTEC INDUSTRIES may immediately terminate this Contract and treat as discharged all or any obligation arising from any agreement if the Customer:

a) has breached any of its obligations under this Contract and the breach remains unremedied for seven (7) days after being notified of the breach (Default); or

b) being a person, dies, commits an act of bankruptcy; or

c) being a company, takes or shall have taken against it any action for its winding up placement under management, administration or receivership; or

d) being a company, has a change in effective control not approved in writing by NUTEC INDUSTRIES.

8.2 Following termination NUTEC INDUSTRIES may:

a) retain any security given or monies paid by the Customer or available through the enforcement of any guarantee, security or bond and apply this in reduction of any sum which may be lawfully recovered by the Customer; and

b) enter with all lawful force upon the Customer’s premises or elsewhere to take possession of and remove the Goods.

8.3 If this Contract is validly terminated by NUTEC INDUSTRIES, the Customer must immediately return the Goods that remain unpaid for.

8.4 The Customer will indemnify and hold NUTEC INDUSTRIES harmless against all claims, costs loss or damage in connection with the Contract including for indirect or consequential damages.

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9. SECURITY

9.1 If the Purchase Price is not paid in full on delivery then the Customer grants NUTEC INDUSTRIES a security interest and NUTEC INDUSTRIES may register a purchase money security interest over the Goods in accordance with the Personal Property Securities Act 2009 (PPSA) to secure all amounts owed to it.

9.2 The Customer will provide all information and do all things necessary to facilitate such registration. If any of the details of the Customer supplied to NUTEC INDUSTRIES change, the Customer will immediately notify NUTEC INDUSTRIES of these changes.

9.3 The Customer waives its rights to receive notices under clause 157 of the PPSA and confirms that sections 125, 130, 132(3)(d), 132(4), 135 and 143 of the PPSA are excluded.

9.4 If the Customer Defaults NUTEC INDUSTRIES may enforce its security interest and use all lawful means and enter any property without notice to recover the Goods.

9.5 Any contract or arrangement between the Customer and a financier to finance the acquisition of Goods from NUTEC INDUSTRIES shall not:

a) alter or affect the nature of the Contract as one of sale and purchase;

b) create any liability between NUTEC INDUSTRIES and the financier in relation to the Goods; or

c) affect, discharge or in any way limit or subordinate NUTEC INDUSTRIES’s security interest in or title to any unpaid Goods.

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10. TRUST CUSTOMERS

10.1 Where the Customer is a Trust it must produce a stamped copy of the trust deed (with all amendments) if requested by NUTEC INDUSTRIES.

10.2 The Customer confirms that the trustees shall be liable for any amounts due to NUTEC INDUSTRIES and that the assets of the trust shall be available to meet payment.

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11. GUARANTEE

11.1 The Guarantor (where relevant) personally guarantees payment of all amounts including interest and costs owing by the Customer to NUTEC INDUSTRIES from time to time and acknowledges that no indulgence, granting of time, waiver of forbearance to sue, winding-up or bankruptcy whereby the Guarantor would be released as a surety in any way, releases the Guarantor from liability under these terms and conditions.

11.2 The Guarantor must immediately pay such outstanding amounts to NUTEC INDUSTRIES upon demand regardless of whether Default has occurred.

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12. GENERAL

12.1 The Customer signatory warrants that it has full power and authority to bind the Customer to the obligations under the Contract.

12.2 All notices required by this Contract may be given by direct communication, either by telephone, electronically, fax or post to the addresses and numbers included in this Contract. If sent by post, a Notice will be considered to have been received, unless the contrary is shown, at the time when the Notice would have been delivered in the ordinary course of the post.

12.3 Each clause in these Terms is severable and if any clause is held to be illegal, unenforceable, or in breach of any provision of Australian law, then that clause alone will be severed to the extent of the breach and all other clauses will remain effective.

12.4 NUTEC INDUSTRIES shall not be deemed to have waived any of the Customer’s obligations under these terms and conditions or agreed to any variation of them unless it has done so expressly in writing.

12.5 In case of dispute the parties shall use their best endeavours to negotiate an agreement and will enter formal mediation prior to bringing any Court proceedings. Any Customer claim is limited to the value of the Goods.

12.6 These Terms will be interpreted in accordance with and governed by the laws of Western Australia and the Western Australian courts will have non-exclusive jurisdiction in respect of all matters between NUTEC INDUSTRIES and Customer.

12.7 NUTEC INDUSTRIES will comply with the National Privacy Principles and the Privacy Act 1988. The Customer consents to NUTEC INDUSTRIES, at its discretion, obtaining, using and disclosing Customer personal information for the purpose of:

a) checking the Customer’s credit history; or

b) checking the Customer’s continued credit worthiness and history; or

c) using a third party to pursue or collect any amount outstanding.

12.8 In the case of inconsistency between these terms and conditions and any subsequent agreement for the supply of Goods by NUTEC INDUSTRIES including any Purchase Contract these terms and conditions shall take precedence unless expressly excluded. Additionally, all Terms and Conditions in the NUTEC INDUSTRIES Credit Application Form as agreed to by the Customer are applicable.