Trading Terms and Conditions
1. Interpretation.
In these conditions “Supplier” means Frenchline Industries Pty Ltd and “Buyer” means the person, or organisation, firm or company with whom the Supplier enters into a contract for the sale of goods and/or supply of services.
2. Incorporation
2.1 These conditions govern every contract of sale of goods and/or supply of services by Supplier to Buyer and, except as modified in accordance with Clause 2.2, will constitute all the terms and conditions agreed between them to the exclusion of all other terms and conditions. Any order or instruction by the Buyer for Supplier goods or services is deemed acceptance of these terms.
2.2 No modification to these Conditions, whether put forward in Buyers purchase order, specification or otherwise, shall bind Supplier unless agreed to in writing by Supplier’s authorized employee.
2.3 These terms and conditions supersede any terms and conditions which have previously governed contracts for the sale of goods or supply of services by Supplier to the Buyer.
3. Quotations
Any quotation given by Supplier is a mere invitation to do business and does not constitute contractual offers. All quotations lapse 30 days after issue or as stated on the quotation, whichever is the sooner, but Supplier may vary or withdraw a quotation at any time prior to the Buyer’s acceptance.
4. Orders
4.1 Orders for goods or services shall not be binding upon Supplier until accepted in writing by its authorized employee. Supplier reserves the right to accept orders in whole or part. Any part order not accepted in the manner prescribed shall be regarded as having been refused.
4.2 Once Supplier has accepted an order, the Buyer may not alter or modify it unless the written consent of an Supplier’s authorized employee is first obtained.
4.3 Order confirmations are sent by Supplier where stock is not available in Australia and delivery dates are required. Any order confirmation and delivery dates not disputed within 2 days of its release, will be treated as accepted.
5. Price and Payment
5.1 In the absence of contrary express agreement or quotation, the price for goods supplied shall be the Supplier list price ruling at the date of invoice and the charge for services supplied shall be at Supplier’s prevailing rates at the time of supply. Prices quoted in published price lists or by Supplier’s representatives are subject to change without notice and are not binding on Supplier.
5.2 All prices are expressed net of any applicable freight charges, sales tax and customs duty, which shall be added to the amount to be paid by the Buyer, unless otherwise stated in a quotation or specific product line price list.
5.3 If Buyer has an approved credit account with Supplier, the goods and services supplied must be paid for within the payment terms (14, 30, or 30 days from end of month), taking the invoice date as the reference date. Where the Buyer is overdue with any payment, Supplier is in receipt of credit references which it regards as unsatisfactory, Supplier reserves the right to change the Buyer’s payment terms to an advance payment account or COD. Where Buyer has a COD account, all goods and services shall be paid for, before they are freighted or shipped.
5.4 The Buyer shall make payment for the goods notwithstanding any minor or inconsequential defects or deviations from the specifications that do not affect the performance of the goods.
5.6 Without prejudice to any other remedy, Supplier reserves the right to charge a default charge on any overdue amounts at of 2.5% per month calculated daily. The Buyer acknowledges that such rate is a genuine estimate of the Suppliers costs of late payment.
5.7 Any expenses, costs or disbursements incurred by Supplier in recovering any outstanding monies due to Supplier by the Buyer under this Agreement, or enforcing any of the terms and conditions that are to be performed by the Buyer under this Agreement, or undertaking or exercising any of the rights due to Supplier under this Agreement or at law, including but not limited to any debt collection agency fees and solicitors’ costs calculated on a solicitor and own client basis, shall be paid by the Buyer.
5.8 Unless otherwise specifically stated, all amounts payable under these Terms are expressed on a GST exclusive basis.
5.9 Any warranty, delivery, technical support or any other services related to our products, will be suspended on any overdue account, regardless of whether previous products or services have been paid.
6. Delivery and Insurance
6.1 Risk in the goods will pass to the Buyer ex Supplier offices/warehouse upon the goods being placed upon the vessel or vehicle which is to deliver the goods to the Buyer. The Buyer shall be responsible for arranging delivery insurance of the goods. Supplier shall not be liable to the Buyer in the event of any failure to arrange insurance.
6.2 While Supplier shall use all reasonable endeavours to meet agreed delivery dates, Supplier shall not be liable to the Buyer for any loss or damage whatsoever should it be delayed or prevented from delivering goods, supplying services or otherwise performing any of its contractual obligations due to any cause or circumstances of any kind whatsoever. In the event of any delay in delivery or supply, as aforesaid, the due date shall be deferred for a period equal to the time lost by reason of the intervening cause or circumstance.
6.3 Supplier reserves the right to deliver in instalments and all such instalments, when separately invoiced, shall be paid for without regard to the delivery of subsequent instalments.
6.4 The Buyer must arrange for unloading and acceptance of the goods immediately upon arrival at the Buyer site. Any delivery service provided by the Supplier includes up to 1 hour of unloading time calculated from the time the delivery vehicle reaches the Buyer site. If unloading exceeds one hour the Supplier may charge an additional fee being $300 plus gst per hour for each vehicle delayed.
6.5 The Buyer must arrange for receipt of any painted or coated goods which the Supplier notifies the Buyer are ready for delivery. Any surface defects on such goods that are delivered more than 48 hours after the Buyer receives notification are at the Buyer’s sole risk and liability.
7. Security
Supplier shall be entitled at any stage during this agreement, to request security or additional security. The Buyer shall provide the security as soon as practicable, and the Supplier shall be entitled to withhold supply of any goods, or suspend credit arrangements, until the security is provided.
8. Retention of Title
(a) Goods supplied to the Buyer shall remain the sole and absolute property of Supplier as legal and equitable owner and no person shall be entitled to use, dispose of or otherwise deal with, the goods in any way which is inconsistent with Supplier’s rights or these Terms until such time as all money due to Supplier has been paid by the Buyer.
(b) The Buyer acknowledges that it is in possession of all goods supplied on credit, as bailee for Supplier until payment in full has been received by Supplier.
(c) The Buyer undertakes to:
(i) store such goods on its premises separately from its own goods or those of any other person; and
(ii) in a manner which makes them readily identifiable as Supplier’s goods; and
(iii) ensure that the goods are properly stored, protected and insured for their full insurable value against loss or damage by fire, theft, accident and other such risks.
(d) The Buyer’s right to possession of such goods shall cease, and Supplier will be entitled to repossession of any goods not paid for in full, if the Buyer does anything or fails to do anything which would result in the following:
- the Buyer failing to comply with any of the Terms;
- the Buyer ceasing to carry on business;
- the Buyer going into liquidation, official management or some other form of insolvency administration;
- the Buyer filing for bankruptcy;
- (the Buyer making a scheme or compromising with its creditors.
(e) The Buyer grants Supplier reasonable access to its premises in order to inspect the goods at any time, or to retake possession of them in accordance with this agreement. In the event that Supplier so enters premises, the Buyer hereby irrevocably indemnifies Supplier against any claim that may be brought against Supplier for trespass or for any damage done to such premises by Supplier.
(f) Supplier may resell any goods retaken in accordance with this agreement.
(g) The Buyer shall hold the entire proceeds of goods supplied under credit in trust for Supplier and the proceeds shall not be mingled with any other money or paid into any overdrawn bank account and shall at all times be identifiable as Supplier’s money.
(h) The Buyer warrants that it is not at the time of entering into this agreement insolvent and knows of no circumstances which would entitle any creditor to appoint a receiver or to petition for winding up or to exercise any other rights over or against its assets.
(i) The Buyer shall notify any person seizing the goods or any part of them of the restrictions contained in this Retention of Title clause.
(j) The Buyer shall place and keep displayed on the goods a notice containing, in plain and legible print, a statement that Supplier is the owner of the goods and a statement of the restrictions contained in this Retention of Title clause.
(k) Supplier may assign or sub-contract its rights and obligation under this agreement without notice to the Buyer.
(l) Supplier shall not be responsible to the Buyer for any damage reasonably caused by Supplier to any vehicle, vessel or equipment in which the goods are installed or to which the goods are attached.
9. Claims
9.1 Buyer shall inspect all goods supplied upon delivery. Supplier shall not be liable for shortages or other errors in delivery, unless Buyer submits a written claim to Supplier within 24 hours of the delivery to which the claim relates.
9.2 The Buyer must notify the Supplier within 5 days of delivery of any defect in the goods. Failure to notify the Supplier within this time will be deemed acceptance o the goods condition.
10. Risk
Risk in the goods passes to the Buyer upon the earlier of:
(a) actual or constructive delivery of the goods to the Buyer; or
(b) collection of the goods from Supplier or any bailee or agent of Supplier by Supplier’s agent, carrier or courier.
11. Cancellation and Returns
11.1 In no case may the Buyer return any goods that have been manufactured or supplied according to Buyer specifications.
11.2 Buyer may only cancel an order for the supply of goods or services provided that the following conditions are satisfied:-
(a) No goods manufacture has begun; or
(b) Such goods raw materials have not been paid for; and
(b) Supplier’s written approval has first been obtained; and
(b) Buyer has paid any cancellation charge, being a genuine pre-estimate of Supplier’s loss, that Supplier shall specify.
11.3 Supplier reserves the right immediately to cancel any contract for the supply of goods and services, or suspend any such supply without incurring any liability to Buyer, in any of the following circumstances:-
(a) Buyer is overdue with any payment or otherwise in breach of these conditions,
(b) Buyer enters into bankruptcy, liquidation or a composition with its creditors, has a receiver or manager appointed over all or any part of its assets or becomes insolvent, or
(c) Contractual performance is delayed or prevented due to any cause or circumstances. Cancellation by Supplier under this clause 9.3 shall be without prejudice to Supplier’s right to recover payment from Buyer for the goods and services previously supplied.
12. Warranty
12.1 Goods not manufactured by Supplier are supplied by Supplier to Buyer on an “as is” basis without warranty of any kind. However Supplier shall assign to Buyer, insofar as it is able to do so, the benefit of any condition, warranty or guarantee, express or implied, in Supplier’s contract with its own supplier.
12.2 Supplier warrants performing services with reasonable care and skill and shall investigate any bona fide complaint that any services have been performed unsatisfactorily. If satisfied that such a complaint is justified and as its sole liability to Buyer in respect of that warranty, Supplier shall supply those services again at no extra charge to Buyer.
12.3 Certain legislation, including the Competition and Consumer Act 2011, imply warranties or conditions or impose obligations upon Supplier which cannot be excluded, restricted or modified or which cannot be excluded, restricted or modified except to a limited extent. These conditions must be read and construed subject to such statutory provisions. Where such statutory provisions apply, to the extent to which Supplier is entitled to do so, its liability shall be limited at its option to:-
(a) In the case of supply of goods,
(i) The replacement of the goods or supply of equivalent goods.
(ii) The payment of the cost of replacing the goods or acquiring equivalent goods.
(iii) The payment of the cost of having the goods repaired, or
(iv) The repair of the goods, and
(b) In the case of services,
(i) The supply of the services again, or
(ii) The payment of the cost of having the services supplied again.
13. Limitation of Liability
To the extent permitted by law and subject only to any express exceptions contained in these conditions, Supplier shall under no circumstances be liable in any way whatsoever to the Buyer for any form of loss, damage or expense sustained or incurred by the Buyer or any other party in consequence of or resulting in, directly or indirectly, out of the supply of goods or services by Supplier, the use or performance thereof, any breach by Supplier of any contract incorporating these conditions or the negligence of Supplier. In all cases the Supplier’s total liability is limited to the amount received from the Buyer in relation to the relevant goods order.
14. Force Majeure
(a) If by reason of any fact, circumstance, matter or thing, including but not limited to pandemic, industrial disputes, default of suppliers, compliance with governmental order or request, sabotage, rebellion, fires, flood, breakdown of plant or machinery, beyond the reasonable control of Supplier or the Buyer either is unable to perform in whole or in part any obligation under this agreement that party is relieved of that obligation under this agreement to the extent and for the period that it is so unable to perform and is not liable to the other party to this agreement in respect of such inability.
(b) Any such delays in or failure of performance of either the Buyer or Supplier shall not constitute default under this agreement or give rise to any claims for damages.
(c) Where a party is affected by force majeure it must notify the other party as soon as reasonably practicable. If the contract remains unable to be performed 60 days after the date of the notice and the affected party has made all reasonable efforts to carry out its obligations and make allowance for the circumstances, then either party may terminate the Contract. Such termination shall not affect the Parties obligations up to that date. The Buyer shall be obliged to pay for work in progress up to such date.
15. Trusts
If the Buyer acts as a trustee for a trust, the Buyer enters into this agreement both on its own behalf and in its capacity as trustee for the trust. The Buyer agrees to be bound by the terms of this agreement in its own capacity, and as trustee for the trust, and warrants and undertakes with Supplier that:
(a) the trustee is empowered by the trust to execute this agreement and to do all things required by this agreement;
(b) there are no restrictions or conditions upon such activity by the trustee;
(c) all necessary meetings have been held and all necessary resolutions have been passed as required by the terms of the trust deed, to render this agreement binding on the parties;
(d) that the trustee has a right of indemnity from the trust to the assets of the trust for any action taken by the trustee on behalf of the trust, and the right of indemnity of the trustee has not been limited in any way; and
(e) the trustee is not in default under the terms of the trust.
Where any Buyer obtains credit for and on behalf of a trust without disclosure of the same, a disclosure is deemed to have been made and the assets of the trust are liable for all money due by the Buyer to Supplier.
16. Change of Ownership
(a) No later than 14 days prior to any proposed changes of ownership, shareholding, trustee, changes in registered particulars, or alteration to the ownership or structure of the business entity of whatsoever nature, the Buyer shall notify Supplier in writing of the changes and shall provide full details to Supplier.
(b) The Buyer shall remain liable for all accounts after such proposed changes unless Supplier has acknowledged and accepted the proposed changes in writing.
17. Charge
(a) The Buyer agrees to charge any land now owned, or acquired in the future, by the Buyer and/or the Guarantors to secure payment of all outstanding accounts and the Buyer agrees to enter into a Mortgage over such land upon being required to do so by Supplier.
(b) Any such security is to be prepared by Supplier’s solicitor on the terms and conditions that Supplier’s solicitor sees fit.
(c) The Buyer further authorises Supplier to register an absolute Caveat over any land now owned by the Buyer or by the Guarantors, or in the future acquired by the Buyer or the Guarantors, to secure any sum due under this agreement at any time during the continuance of this agreement.
(d) The terms and conditions of this agreement shall relate to any charge or security imposed by Supplier on the Buyer.
18. Variation of Terms of Trading
Supplier shall be entitled to vary the agreement from time to time, by providing written notice of the change to the Buyer, and the variation shall take effect from the date of notification of the change.
19. Privacy of Information
(a) To assess your application for credit, and if it is approved, to establish and manage your account, Supplier needs to:
(i) collect personal information about the Buyer in this Agreement and from other sources; and
(ii) obtain the Buyer’s agreement in relation to handling this personal information.
(b) If the Buyer does not provide the information requested or give the Buyer’s agreement to this Supplier will decline the Buyer’s application for credit.
(c) In accordance with the Privacy Act, the Purchaser can access personal information about the Buyer held by Supplier, and advise if the Buyer thinks it is inaccurate, incomplete or out of date.
(d) To arrange access to personal information about the Buyer, the Buyer must write to Supplier.
(e) In this clause “personal information” means information about the Buyer, including about the Buyer’s financial circumstances, credit worthiness, credit history, credit standing, credit capacity, its use of the account with Supplier.
(f) The Buyer agrees that, subject to the Privacy Act, Supplier and its agents may do the following (and if the application for credit is successful, this agreement continues until such time as the credit account provided to the Buyer under this agreement is closed and paid in full):
- Obtain credit reports about the Buyer from credit reporting agencies to assess its application for credit or to collect overdue payments from it, and obtain personal information from a business that provides commercial credit worthiness information.
- Disclose personal information to credit reporting agencies or any other person who enquires of Supplier as to the Buyer’s credit worthiness before, during or after providing credit to it. This includes, but is not limited to:
(i) the fact that it has applied for credit and that Supplier is a credit provider to it;
(ii) advice about payment at least 60 days overdue and which are in collection (and advice that payments are no longer overdue);
(iii) advice that cheque(s) drawn by it or direct debit requests to Supplier’s bank account which it has authorised Supplier to make have been dishonoured more than once;
(iv) Supplier’s opinion that the Buyer does not intend to meet or has not met its credit obligations or that it has committed some other serious infringement under this agreement; and
(v) that credit provided to the Buyer has been paid or otherwise discharged.
(iii) Exchange personal information with credit providers named in this application or in a credit report issued by a credit-reporting agency. This is for purposes including but not limited to:
(i) assessing the Buyer’s credit worthiness, this application for credit and any subsequent application for credit by the Buyer;
(ii) notifying other credit providers of a default by the Buyer;
(iii) exchanging information about the Buyer’s account where the Buyer is in default with other credit providers;
(iv) Supplier’s approval process as to any transactions the Buyer wishes to make; and
(v) Supplier’s administration of the Buyer’s account.
(iv) Exchange personal information with any person whose name the Buyer gives to Supplier from time to time. This includes, for example, for the purpose of confirming the Buyer’s employment and income details with any employer, landlord, mortgagee, accountant, financial adviser or tax agent named in this application.
(v) Monitor and record the Buyer’s telephone conversations with Supplier from time to time in order to train Supplier’s staff and Supplier’s service quality.
(g) The Buyer also agrees that where the Buyer has provided Supplier with information about another individual in this application for, the Buyer will make sure that the individual is aware of:
(i) the Buyer supplying their information to Supplier and the purposes why Supplier has collected the information;
(ii) their ability to access that information in accordance with the Privacy Act (and to advise Supplier if they think the information is inaccurate, incomplete or out of date); and
(iii) Supplier’s contact details.
(h) The Guarantors make the same agreement with Supplier, as does the Buyer, as described in this clause.
20. Arbitration
(a) In the event of a dispute arising under this Agreement, either party may refer the dispute to arbitration. The party wishing to refer the matter to arbitration shall, by notice in writing (“the Notice”), advise the other of the intention to refer the matter to arbitration, and shall nominate an arbitrator. The other party shall, within seven (7) days, advise in writing as to whether the party accepts or rejects the nominated arbitrator, and in the event of the other party rejecting the nominated arbitrator, or not responding to the Notice within the 7-day period as herein specified, then the matter shall be referred to arbitrator appointed by the President of the Law Society.
(b) Either party shall be entitled to be represented by a legal practitioner.
(c) The parties further agree that the arbitrator shall be entitled to award costs for the legal representation, and such costs shall be calculated on a solicitor own client basis.
21. Infringement Claims
21.1 Buyer shall indemnify Supplier from or against any award of damages and/or costs made against Supplier in respect of any claim that goods manufactured or supplied by Supplier in Accordance with specifications or designs proposed by Buyer, infringe the intellectual property rights of a third Party.
22. Notices
Any notice to be served by one party on the other under this agreement must be in writing and is deemed to have been duly served if given:
(a) by mail, two (2) business days after it is posted where the party’s last known address is in the Commonwealth of Australia, and five (5) business days after it is posted by airmail where the party’s last known address is outside the Commonwealth of Australia; or
(b) by hand, at the time it is left at the party’s last known place of residence or business; or
(c) by Email, upon receipt or if applicable upon receipt by the sender of the confirmation receipt; or
(d) by facsimile transmission, at the time of transmission to the party’s last known facsimile number;
or such earlier time if acknowledged by the receiving party.
23. Law and Jurisdiction
The construction, validity and performance of any contract incorporating these conditions shall be governed by the laws of the state of Western Australia and Buyer shall submit to the jurisdiction of the courts of that state.
24. General
The Buyer shall comply with all laws and regulations of the Commonwealth and State and Territories of Australia and provide all necessary information to, and obtain all necessary permits, approvals, licenses, consent, authorization and exemptions from, any government authority or other appropriate body in respect of the Buyer’s use, marketing, distribution or re-supply of goods acquired from Supplier under these conditions of trading, including, but not limited to all applicable export control laws and regulations, such as the customs (Prohibited Exports) regulations.