Weldclass - Standard Trading Terms and Conditions
Reference in these terms to:-
(a) “ACL” means the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(b) "Goods" or "Services" refers to goods or services supplied by Weldclass to You.
(c) "We" or "Weldclass" refers to JWL Marketing Pty Ltd, trading as Weldclass Welding Products
(d) "PPSA" means the Personal Property Securities Act 2009 (Cth).
(e) “You” means the person named in the Customer Account Application as the Customer.
Terms used in these Terms and Conditions which have defined meanings in the PPSA or ACL have the same meanings in these Terms and Conditions
2.1 The "price" of Goods and/or Services will be the then current price as determined by Weldclass and notified to You.
2.2 The notification of the “price” of Goods and/or Services to You will not operate as an offer or obligation to sell to You. Weldclass retains the discretion whether to accept or to decline any orders from You.
2.3 All prices are GST exclusive. GST is payable by You in addition to the price at the same time as the price is payable.
2.4 A $9.50 handling charge will apply to all Weldclass invoices under $150.00 (not including GST and Freight charges)
2.5 A variable delivery charge will apply in accordance with the Weldclass freight Rates schedule.
3.1 Where You comprises more than one person, each such person shall be jointly and severally liable to Weldclass under these Terms and Conditions.
4.1 The price shall be paid by You in cash, by electronic funds transfer or credit card, or by cheque not later than thirty (30) days after Weldclass invoices You. Time is of the essence in that regard.
4.2 If You fail to make any payment when due, all other amounts whether then due or not will become immediately due and payable and Weldclass may withhold the supply of any further Goods and/or Services until overdue amounts are paid in full.
4.3 Weldclass reserves the right to recover from You a default charge on overdue amounts calculated on a daily basis at the rate which is 4% above the Westpac Reference lending rate as published from time to time upon the outstanding balance of the price and to be payable by way of liquidated damages for breach of contract.
4.4 Weldclass may in its complete discretion apply any payment received from You to any amount owing by You to Weldclass.
4.5 You must pay all costs and expenses (on a solicitor-client basis) reasonably incurred by Weldclass arising out of any breach by you of the payment terms of these Terms and Conditions.
5.1 Every endeavor will be made by Weldclass to supply the Goods and/or Services within the period, if any, requested by You but no liability is accepted by Weldclass for delay in delivery or non-delivery.
5.2 Weldclass reserves the right at its discretion to discontinue supply to You at any time, particularly if You are in default of your payment obligations and/or become subject to any form of insolvency administration whether formal or informal, or where there is a force majeure occurrence.
6. EXAMINATION , RETURNS AND REFUNDS
6.1 You are responsible for examination of the Goods upon delivery or collection and any alleged damage, deficiency or non-conformity with order must be reported to Weldclass in writing within two (2) business days of such delivery/collection otherwise no claims shall be considered and You will be liable to pay any amounts for those Goods not yet paid to Weldclass.
6.2 You must choose / order Goods carefully. We are not required to give refunds if you change your mind or make the wrong decision (product or quantity) but We retain that discretion. Goods returnable to Weldclass by agreement that have been purchased in error by the customer, the customer is liable to pay all in-freight and out-freight charges relating to the transport of those goods and a restocking fee, where applicable, as determined by Weldclass. You can choose between a refund, exchange or credit where the Goods contain faults, have been incorrectly described, are different from a sample shown to you or do not do what they are supposed to do. You must present your receipt, delivery docket or invoice as proof of purchase to obtain a refund, exchange or credit.
6.3 Goods supplied in Error. Weldclass is to be notified in writing within (2) business days of the customers’ receipt of the Goods supplied in error by Weldclass. If the customer does not wish to purchase the goods supplied in error, Weldclass will arrange transport for the return of the Goods and will process a credit or refund once the goods have been received by Weldclass.
7. TITLE/PROPERTY AND TRANSFER
7.1 Property in Goods shall remain with Weldclass until You have paid all monies due to Weldclass on any account whatsoever. Until that time You must-
7.1.1 Hold the Goods as a bailee until property in them passes to You;
7.1.2 At all times ensure that Goods are marked in a way that will enable their identification as property of Weldclass;
7.1.3 Except as mentioned in clause 7.2 not purport to mortgage, charge, transfer, convey or otherwise deal with Goods without the prior consent of Weldclass;
7.1.4 At all times allow Weldclass access to Goods to inspect them and to re-take possession at its discretion and indemnify Weldclass against all claims whatsoever (including claims of trespass) arising out of the exercise or purported exercise of rights under this clause;
7.1.5 Insure Goods; and
7.1.6 Account to Weldclass for all proceeds of Goods including any insurance proceeds.
7.2 You shall be entitled to sell or consume Goods in the ordinary course of your business subject to –
7.2.1 In the case of a sale of Goods You must hold the proceeds of sale on trust for Weldclass;
7.2.2 Your right to deal with Goods shall cease automatically if You-
(a) breach any provision of these conditions of sale;
(b) cease to or threaten to cease to carry on your business; or
(c) becomes the subject of any form of insolvency administration whether formal or informal.
7.3 Notwithstanding property in Goods remaining with Weldclass, upon delivery to You or your agent, the Goods will be at your risk and You will, at your own costs, insure the Goods in your own name against all risks for which a prudent owner would insure goods and for their full replacement value.
7.4 Goods delivered to You on consignment remain the property of Weldclass until paid for in full and -
7.4.1 Those goods will be at your risk from delivery;
7.4.2 You will be responsible for the maintenance and repair of any such goods on consignment; and
7.4.3 You will forthwith return any goods on consignment to Weldclass on written demand.
8.1 You hereby grant to Weldclass a Security Interest in all present and after acquired property (including the Goods) and their proceeds (including any accounts and accessions) to secure all monies owing to Weldclass now and/or in the future by You.
8.2 You hereby grant to Weldclass a Security Interest in all present and after acquired property (including the Goods) and their proceeds (including any accounts and accessions) as security for any Goods delivered to You by Weldclass under consignment.
8.3 You agree that:
8.3.1 Weldclass will continue to hold a Security Interest in the Goods in accordance with the PPSA, notwithstanding that the Goods may be processed, commingled or become an accession with other Goods8.3.2 You will do all the things necessary to enable Weldclass to perfect and maintain its security interest including providing all information Weldclass requires to register a Financing Statement or Financing Change Statement on the Personal Properties Securities Register (“PPSR”) as a Security Interest and a Purchase Money Security Interest pursuant to the PPSA;
8.3.2 You will not change your name, ACN or ABN or other details required on the PPSR, without first notifying Weldclass;
8.3.3 Weldclass need not give You any notice required under the PPSA unless the requirement to give notice cannot be excluded;
8.3.4 You must pay any and all costs, expenses and other charges incurred, expended or payable by Weldclass in relation to the filing, discharge or necessary amendment of any Financing Statement or Financing Change Statement.
8.3.5 You will not allow security interests to be created or registered over the Goods in priority to the security interest(s) held by Weldclass.
8.3.6 To the extent the law permits them to be excluded Sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4),135, 142 and 143 of the PPSA shall not apply.
8.3.7 You and Weldclass agree that neither will disclose information of the kind specified in Section 275(1) of the PPSA unless, in the case of Weldclass and at its discretion, such disclosure is necessary to protect or enforce a Security Interest You have granted.
9. CONSUMER GUARANTEES
9.1 If Goods and/or Services are supplied to You as a Consumer, the ACL provides for You to have the benefit of consumer guarantees which cannot be excluded. You will be entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You will also be entitled to have goods and/or services repaired, replaced or re-supplied if they fail to be of acceptable quality and the failure does not amount to a major failure.
9.2 To the extent permissible by law, the liability of Weldclass in respect of a breach of a consumer guarantee or any warranty made under these Terms and Conditions for any Goods and/or Services not of a kind ordinarily acquired for personal, domestic or household use is limited at the option of Weldclass:
In the case of Goods to -
(a) replacing Goods or the supply of equivalent Goods;
(b) the repair of the Goods;
(c) the payment of the cost of replacing Goods or of acquiring equivalent Goods; or
(d) the payment of the cost of having Goods repaired.
In the case of Services to -
(a) the supplying of the Services again; or
(b) the payment of the cost of having the Services supplied again.
9.3 To the extent permitted by law, all other warranties whether implied or otherwise, not set out in these Terms and Conditions are excluded and Weldclass is not liable in contract, tort (including, without limitation, negligence or breach of statutory duty) or otherwise to compensate You 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; arising out of the Weldclass’ supply of Goods and/or Services to You or caused by Weldclass's failure to provide or delay in providing Goods and/or Services.
9.4 Further Warranty Terms and Conditions apply, and can be viewed here.
11. NON-WAIVER, GOVERNNING LAW AND OTHER MATTERS
11.1 No failure or omission by Weldclass to exercise a right or remedy in these Terms and Conditions is to be construed, and will not operate, as a waiver of that right or remedy by Weldclass. It remains entitled to pursue such rights and remedies.
11.2 These terms and conditions are to be interpreted in accordance with the laws of New South Wales and the courts and tribunals of that State have exclusive jurisdiction in relation to these Terms and Conditions.
11.3 In entering into these Terms and Conditions, You have not relied on any warranty, representation or statement, whether oral or written, made by Weldclass, its employees or agents relating to or in connection with the subject matter of these Terms and Conditions.