SIEGEL (ABN 35 609 511 542)
TERMS & CONDITIONS OF SALE AND/OR SUPPLY
These terms and conditions (“Terms”) apply (unless otherwise previously agreed in writing) to the supply of Goods by Siegel to a Customer from time to time. These Terms constitute the entire agreement between the parties relating in any way to its subject matter. For the avoidance of doubt, any supply of Goods by Siegel to the Customer made after the date of acceptance of these Terms, shall be a supply pursuant to this master supply agreement constituted by these Terms and the relevant purchase order accepted by Siegel and such supply shall not be deemed to give rise to new or separate agreements.
“Additional Charges” includes all delivery, handling and storage charges, goods and services tax, stamp duty, interest, legal and other costs of recovery of unpaid money and all other government imposts and all money, other than the Purchase Price, payable by the Customer to Siegel arising out of the sale of the Goods;
“Customer” means the person to or for whom the Goods are to be supplied by Siegel;
“Goods” means the goods sold to the Customer by Siegel and includes any services provided by Siegel to Customer;
“Siegel” means Siegel Pty Ltd (ABN 35 609 511 542) trading as Siegel.
“PPSA” means Personal Property Securities Act 2009 (Cth);
“Purchase Price” means the list price for the goods as charged by Siegel at the date of delivery or such other price as may be agreed by Siegel and the Customer prior to delivery of the Goods;
“Terms” means these terms and conditions of sale and/or supply and as amended by the Company in writing from time to time.
2. General Conditions
An order given to Siegel is binding on Siegel and the Customer, if:
(a) a written acceptance is signed for or on behalf of Siegel; or
(b) the Goods are supplied by Siegel in accordance with the order.
Acceptance of any quotation or any request by the Customer or order whether written or verbal for performance of work or supply of Goods shall be deemed to be the Customer’s acceptance of these Terms and these Terms will override any conditions contained in the Customer’s order.
Siegel reserves the right to accept a part only of any order by notifying the Customer in writing or by delivering the Goods to the Customer. No order is binding on Siegel until accepted by it. An order which has been accepted in whole or in part by Siegel cannot be cancelled by the Customer without obtaining the prior written approval of Siegel, which it may refuse in its absolute discretion.
Siegel may amend these Terms at any time and from time to time. Siegel will endeavour to notify customers when there is an amendment to the Terms, however, responsibility rests on the Customer to contact Siegel to obtain the latest version of the Terms prior to making a purchase.
3. Goods & Services Tax and Cancellation Charges
The Customer is responsible for the reimbursement of GST where applicable.
If at any time after the commencement of manufacture the Customer cancels or terminates the contract entered into with Siegel, Siegel may apply, without prejudice, cancellation charges covering all work done, materials ordered or allocated and compensation for loss of profit.
4. Delivery and Storage:
(a) Delivery does not include unloading unless specifically stated on quotation;
(b) Delivery periods specified in the quotation are deemed to commence once Siegel receives the Customer’s official order including all information required for manufacture;
(c) Delivery periods are estimates only and Siegel will not be liable for any loss suffered or damage caused to the Customer as a result of Siegel being unable to fulfill delivery within such period;
(d) Delivery will be made in normal working hours (i.e. Monday to Friday 8.00 a.m. to 5.00 p.m.);
(e) Goods supplied by Siegel shall be at the Customer’s risk immediately on delivery to the Customer or into custody on the Customer’s behalf (whichever is the sooner) and the Customer should be therefore insured accordingly;
(f) If the Customer is unable to accept delivery of the Goods on delivery in accordance with these Terms, then the Customer shall be liable to pay any storage costs incurred;
(g) All Goods delivered to the Customer must be stored in a closed area by the Customer in accordance with Siegel’ instructions as issued to the Customer from time to time.
5. Price and Payment
(a) The Customer must pay the Purchase Price and the Additional Charges to Siegel;
(b) If the Customer is in default, Siegel may at its option withhold further deliveries or cancel a contract without prejudice to any of its existing rights;
(c) All payments for Goods supplied must be made to Siegel by the Customer within 30 days from the end of the month during which the invoice is issued unless specified otherwise in writing by Siegel. Interest is charged at the rate of 1.5% per month or part of a month from the expiry of that period until the date payment is received by Siegel;
(d) All amounts payable by the Customer under these Terms must be paid without set-off or counter claim of any kind.
6. Return of Goods
To the extent permissible by law:
(a) Goods specifically manufactured to order will not be accepted for return or credit; and
(b) proprietary items may be accepted subject to approval by Siegel and at a 10% restocking fee.
7. Title of Goods:
(a) Notwithstanding that the risk in the Goods may have passed to the Customer, Siegel and the Customer agree that ownership of the Goods shall not pass until:
(i) the Customer has paid Siegel all amounts owing for the particular Goods; and
(ii) the Customer has met all other obligations due by the Customer to Siegel in respect of all contracts between Siegel and the Customer.
(b) Receipt by Siegel 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 an until then Siegel’ ownership or rights in respect of the Goods shall continue.
(c) It is further agreed that:
(i) where practicable the Goods shall be kept separate and identifiable until Siegel shall have received payment and all other obligations of the Customer are met;
(ii) until such time as ownership of the Goods shall pass from Siegel to the Customer Siegel may give notice in writing to the Customer to return the Goods or any of them to Siegel. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(iii) Siegel shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(iv) if the Customer fails to return the Goods to Siegel then Siegel or Siegel’ agent may (as the invitee of the Customer) enter upon and into land and premises owned, occupied or used by the Customer, or any premises where the Goods are situated and take possession of the Goods; and
(v) the Customer is only a bailee of the Goods and until such time as Siegel has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to Siegel for the Goods, on trust for Siegel; and
(vi) the Customer shall not deal with the money of Siegel in any way which may be adverse to Siegel; and
(vii) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Siegel; and
(viii) Siegel can issue proceedings to recover the Price of the Goods sole notwithstanding that ownership of the Goods may not have passed to the Customer; and
(ix) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other Goods the parties agree that Siegel will be the owner of the Goods.
8. Personal Property Securities Act 2009 (“PPSA”)
(a) Defined terms in this clause 8 have the same meaning as given to them in the PPSA.
(b) Siegel and the Customer acknowledge that these Terms constitute a Security Agreement and entitle Siegel to claim a Purchase Money Security Interest (“PMSI”) in favour of Siegel over the Collateral supplied or to be supplied to the Customer as Grantor pursuant to these Terms.
(c) The goods supplied or to be supplied under these Terms fall within the PPSA classification of “Other Goods” acquired by the Customer pursuant to these Terms.
(d) Siegel and the Customer acknowledge that Siegel, as Secured Party, is entitled to register its Security Interest in the Collateral supplied or to be supplied to Customer pursuant to these Terms on the PPS Register.
(e) To the extent permissible at law, the Customer:
(i) waives its right to receive notification of or a copy of any Verification Statement confirming registration of a Financing Statement or a Financing Change Statement relating to a Security Interest granted by the Customer to Siegel.
(ii) agrees to indemnify Siegel on demand for all costs and expenses, including legal costs and expenses on a solicitor / client basis, associated with the;
I. registration or amendment or discharge of any Financing Statement registered by or on behalf of Siegel; and
II. enforcement or attempted enforcement of any Security Interest granted to Siegel by the Customer.
(iii) agrees that nothing in sections 130 and 143 of the PPSA will apply to these Terms or the Security under these Terms;.
(iv) agrees to waive its right to do any of the following under the PPSA:
I. receive notice of removal of an Accession under section 95;
II. receive notice of an intention to seize Collateral under section 123;
III. object to the purchase of the Collateral by the Secured Party under section 129;
IV. receive notice of disposal of Collateral under section 130;
V. receive a Statement of Account if there is no disposal under section 132(4);
VI. receive a Statement of Account under section 132(3)(d) following a disposal showing the amounts paid to other Secured Parties and whether Security Interests held by other Secured Parties have been discharged.
VII. receive notice of retention of Collateral under section 135;
VIII. redeem the Collateral under section 142; and
IX. reinstate the Security Agreement under section 143.
(f) All payments received from the Customer must be applied in accordance with section 14(6)(c) of the PPSA.
9. Liability and Warranty
The liability of Siegel is limited, to the extent permissible by law and at Siegel’s option in relation to the Goods to:
(a) the replacement of the Goods or the supply of equivalent goods;
(b) the repair of the Goods;
(c) the payment of the cost of replacing the Goods or of acquiring equivalent goods; or
(d) the payment of the cost of having the Goods repaired. Goods are sold and advice is given in good faith. To the extent permitted at law, all other warranties whether implied or otherwise, not set out in these Terms are excluded and Siegel is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate the Customer for:
(a) any increased costs or expenses;
(b) any loss of profit, revenue, business, contracts or anticipated savings;
(c) any loss or expense resulting from a claim by a third party; or
(d) any special, indirect or consequential loss or damage of any nature whatsoever caused by Siegel’ failure to complete or delay in completing the order to deliver the Goods.
Nothing in these Terms is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 (“CCA”) or the Fair Trading Acts (“FTA”) in each of the States and Territories of Australia (including any substitute to those Acts or re-enactment thereof), except to the extent permitted by those Acts where applicable.
Where the supply of the Goods to a Customer is a consumer sale, these Terms shall be subject to any laws or legislation governing the rights of consumers and shall not affect the consumer’s statutory rights.
10. Rights of Siegel
If Siegel elects not to exercise its rights, entitlements or any other action as provided for in these Terms it shall not prejudice Siegel’ right to exercise such rights, entitlements or other action in any other related or unrelated matter under such Terms.
11. Force Majeure
Siegel shall not be liable to the Customer whatsoever for any defect, loss, damage or delay caused by strikes, lockouts, damage to or breakdown of plant, Government interference, earthquake, civil commotion, force majeure or any other cause beyond its control.
Any Terms shown on any Quotation Form issued by Siegel shall be in addition to, and shall not derogate from these Terms.
13. Conditions Unlawful
If any of these Terms are unlawful or invalid under any applicable statute or rule of law, they are to that extent to be deemed omitted.
14. On Sale
The Customer agrees that upon on-sale of any Goods to third parties it must not make any misrepresentations to third parties about the Goods.
To the full extent permitted by law, the Customer must indemnify Siegel and keep Siegel indemnified from and against any liability and any loss or damage Siegel may sustain, as a result of any breach, act or omission, arising directly or indirectly from or in connection with any breach of any of these Terms by Customer or its representatives.
The Customer acknowledges and agrees that these Terms shall be governed by the laws of New South Wales, and the laws of the Commonwealth of Australia which are in force in New South Wales. The parties to these Terms submit to the non-exclusive jurisdiction of the courts of New South Wales and the relevant federal courts and courts competent to hear appeals from those courts.