The below details AG’s standard conditions of sales. These are also available in pdf form for easy download by clicking here.
STANDARD CONDITIONS OF CONTRACT
In these conditions “AG” means Associated Gaskets Pty Limited “the customer” means the person to whom AG addresses its quotation, invoice and/or packing slip, “goods” means any article, product or materials which AG supplies or might supply and “particular goods” means goods that are the subject of an agreement between AG and the customer
2. FORMATION OF AGREEMENT:
2.1 A quotation issued by AG to the customer shall not constitute an offer capable of acceptance by the customer.
2.2 Subject only to condition 2.5 below AG declines and refuses to accept any order or offer or to enter any agreement for the supply by AG of goods containing terms or conditions differing from these terms and conditions. Where a customer has purported to order or offer or to enter any agreement for the supply by AG of goods containing terms or conditions differing from these terms and conditions no act or omission on the part of AG (including the supply by AG of goods or the undertaking of steps in preparation for the supply of goods, but subject only to condition 2.5 below) shall constitute acceptance by AG of terms or conditions differing from these terms and conditions.
2.3 An agreement between AG and the customer in respect of particular goods shall come into existence upon the earlier of the following events, namely; (a) the acceptance by AG of an order for particular goods (which order may be placed and accepted, at the discretion of AG, orally or in writing) at any time after the customer has had notice of these terms and conditions (whether or not such order purports to contain terms and conditions differing from these terms and conditions), (b) AG electing, at any time after the customer has had notice of these terms and conditions and following the acceptance by the customer of a quotation provided by AG to the customer in respect of the supply of the particular goods to the customer, to supply the particular goods to the customer (whether or not such acceptance by the customer purports to contain terms and conditions differing from these terms and conditions and whether or not AG’s election to supply the particular goods has been communicated to the customer), (c) the undertaking of work, procurement of tooling, materials or other services or things or the incurring of expense by AG for the purpose of procuring modifying or creating goods for the customer at any time after the customer has had notice of these terms and conditions, (d) the delivery of the particular goods or an invoice or packing slip issued by AG in respect of the particular goods at any time after the customer has had notice of these terms and conditions (whether or not such invoice or packing slip accompanies the particular goods or precedes or follows the delivery of the particular goods) or (e) the acceptance by the customer of the particular goods at any time after the customer has had notice of these terms and conditions.
2.4 Where a customer has at the time it makes an agreement with AG for the supply of goods, as a consequence of prior dealings with AG or in other circumstances, received a document which sets out these terms and conditions or had access to a document or electronic or other information source containing these terms and conditions, the customer shall be deemed conclusively to have had notice of these terms and conditions (whether or not the customer has actually read or understood these terms and conditions in whole or in part.
2.5 Any statement whether oral or written made by AG or the customer which purports to set out terms and conditions for the supply of goods by AG on terms or conditions differing from these terms and conditions shall, to the extent that such order or agreement contains terms or conditions different to these conditions, not create any binding agreement between AG and the customer, unless in writing signed knowingly by an authorized officer of AG, but AG may act and rely upon any such statement and, the customer acknowledges, may at its unfettered discretion undertake work, procure tooling, materials, services or things and/or incur expense with the intent and in the expectation of supplying goods to the customer on these terms and conditions.
3.1 The customer warrants to AG that it will prudently and promptly inspect goods and form its own opinion as to the suitability of goods for the customer’s purposes.
3.2 The customer acknowledges that the goods are likely to expire, fail or be sacrificed even when utilized with due care in ideal conditions. The customer must rely upon its own knowledge, investigations and conclusions in determining; (a) the suitability of goods for the purpose intended in the conditions to which the goods will or might be subjected, (b) the prospective serviceable life of the goods, and (c) the extent to which continuous or periodical monitoring, inspection or preventative maintenance or replacement of the goods is necessary or desirable, The customer releases AG from all actions, claims, demands and causes of action by the customer arising from the use of the goods by the customer or any party who obtains the goods from the customer and/or from the properties of the goods (whether or not the properties accord with the customer’s expectations) and the customer agrees to indemnify AG in respect of any such actions, claims, demands and causes of action of any third party.
3.3 In the event of any occurrence likely to give rise to a claim upon AG arising from the properties or performance of goods, the customer, as an essential precondition to the making of any claim upon AG, notify AG forthwith of the occurrence and afford AG and its agents a prompt and reasonable opportunity to inspect the goods and any place, plant, device or structure material to or associated with the occurrence.
3.4 It is not intended in these conditions to diminish or modify the rights, entitlements and remedies of the customer under the Trade Practices Act (Commonwealth) or the Fair Trading Act (New South Wales) or any other legislation which by operation of law cannot lawfully be diminished or modified. Any provision in these conditions which might if effective, diminish or modify such rights, entitlements or remedies shall, without impeding or diminishing the force and effect of the remainder of the conditions, be severed from and form no part of these conditions.
3.5 To the extent permitted by law the liability of AG shall be limited to the repair or at its option, replacement or refund of the price of any goods which, upon inspection by AG, are found to have been defective in materials or workmanship at the time of delivery provided that the customer shall notify AG in writing of its claim within seven days of becoming aware of the basis thereof and at its expense return the goods which are the subject of the claim to AG.
3.6 Subject to the foregoing to the extent permitted by law AG excludes all liability for any loss, damage, death or injury of any kind, whether direct, indirect, consequential or incidental, caused by or contributed to by the goods or the use of the goods.
4.1 Where a quotation has been given to the customer the price of the particular goods shall for the purpose of the agreement made as a consequence of AG electing to supply an order submitted in response to quotation, but not for the purpose of any agreement made in respect of any subsequent order by the customer and subject to condition 4.3 and 5, be that quoted.
4.2 Where a quotation has not been given by AG the price shall be that shown on AG invoice or packing slip.
4.3 Where the goods are or comprise components which are subject to price movements by reason of movements in exchange rates, the introduction or any increase in government duties, imposts, taxes or charges, fluctuations in commodity prices, or other matters of a kind and extent which might not be reasonably anticipated. AG shall, notwithstanding any quotation given, be entitled to vary its price to recover additional costs occasioned by reasons of such price movements.
5. GOODS AND SERVICES TAX (GST)
5.1 The customer shall pay all GST payable on goods sold whether or not an amount in respect of such tax is included in the quotation or invoice issued by AG. Where, in any quotation invoice or other document emanating from AG no reference is made to GST, the price stated by AG is exclusive of GST and a sum equal to the GST payable shall be added to the amount payable to AG. Where, in any quotation invoice or other document emanating from AG reference is made to GST, AG does not warrant that any amount shown in respect of GST fully or accurately records the amount of GST payable in respect of the goods referred to. The customer must pay and shall indemnify AG and keep AG so indemnified in respect of any further or additional amounts payable in respect of GST on goods sold by AG to the customer.
6.1 It is an essential term of this agreement that payment must be made by the customer no later than thirty (30) days from the end of the month of issue by AG of an invoice to the customer.
7. TITLE AND RISK
7.1 Risk in the goods shall pass to the customer on delivery. Property in the goods shall remain with AG and AG reserves the right to retake possession of the goods and or dispose of the goods until the happening of the earlier of the following events, namely: (a) the receipt by AG of full payment for all amounts owing by the customer to AG in respect of the goods, or (b) the sale, by the customer of the goods (whether in their original state, altered or as a part of another product) to its customers in the ordinary course of business.
7.2 If the customer fails to pay all or any part of the customer’s indebtedness to AG under these conditions AG may without prejudice to its other rights and remedies and without notice enter upon the customer’s premises for the purpose of retaking possession of the goods and subsequently retain or re-sell the goods at AG’s discretion.
7.3 Until all amounts owing by the customer to AG in respect of the goods are paid in full the customer must store the goods separately from and differentiate the goods from its own property and property in which other parties hold interests and hold same as bailee for AG.
7.4 Without relieving the customer of its liability to pay the price to AG the customer agrees that until AG has been paid in full for the goods the customer shall hold a portion of the proceeds of sale of the goods or any product incorporating the goods or the benefit any cause of action it may have against any other party in respect of the goods or any product incorporating the goods (as the case may be) equal to the amount payable to AG in respect of the goods on trust for AG and that it shall account to AG for such sum held on trust or assign to AG the benefit any claim it may have against any other party in respect of the goods or any product incorporating the goods.
8. LIQUIDATED DAMAGES
8.1 In the event of AG undertake work, procure tooling, materials, services or things and/or incur expense with the intent and in the expectation of supplying goods to the customer on these terms and conditions and no agreement for sale of the particular goods eventuates AG shall be entitled to recover from the customer, as liquidated damages, the amount so expended which shall include reasonable allowances in respect of overheads, handling charges, finance costs, profits, on-costs and any other amount foregone by reason of AG action and reliance. AG shall be entitled to issue an invoice in respect of any amount claimed pursuant to this clause and such invoice shall be prima facie proof of the reasonableness of the amount stated thereon and these conditions shall apply as if the goods referred to in any such invoice, had been delivered at the time of delivery of such invoice.
8.2 AG shall in the event that the customer fails to make any payment in accordance with these conditions be entitled to recover compound interest on moneys outstanding from time to time calculated and compounding daily at the rate applicable for the relevant period under legislation which provides for the payment of interest on judgments entered in the Supreme Court of New South Wales.
9.1 Failure by AG to insist upon strict performance by the customer of any of these conditions shall not be taken to be a waiver thereof or of any rights of AG in relation thereto and in any event shall not be taken to be a waiver of the same terms and conditions on any subsequent occasion.
10. APPLICABLE LAW
10.1 All or any agreements to which these conditions apply shall be deemed to have been made in the State of New South Wales and shall be governed by and interpreted in accordance with the laws in force in the State of New South Wales. The parties submit to the jurisdiction of the Courts of New South Wales.
11.1 In the event that any term herein contained is or becomes invalid, void or unenforceable the remainder of these terms and conditions shall remain of full force and effect.