"Customer" means a person who :
Purchases goods or services from Electromold;
Contracts with Electromold for the supply of goods or services, including the supply of such goods or services to another person;
Rents, leases or borrows goods from Electromold, or
seeks to do any of these.
If more than one person is the Customer, each of those persons is jointly and severally responsible for all charges and other obligations in respect of the goods or services supplied.
"Electromold" means George Lovitt (Manufacturing) Pty Ltd trading as Electromold Australia (ABN 47 004 327 342) at 202 Holt Parade, Thomastown, Victoria, 3074.
"Goods" means any product or piece of equipment sold, leased, rented, loaned or otherwise supplied to the Customer by Electromold pursuant to any agreement.
"GST" means the tax imposed or to be imposed by the GST Act.
"GST Act" means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the related imposition Acts of the Commonwealth.
"Order" means any order placed by a Customer with respect to the supply by Electromold of any goods or services pursuant to any agreement.
"Services" means any services provided to the Customer by Electromold (or its contractors) pursuant to any agreement.
2.1 These terms and conditions will apply to any order by the Customer unless Electromold expressly agrees in writing to any changes or other special conditions.
2.2 Electromold may in its absolute discretion amend these terms and conditions from time to time by notice to the Customer.
2.3 If there is any conflict or ambiguity in or between any these terms and conditions and any special conditions, then these terms of settlement shall apply to the extent of the inconsistency.
2.4 The Customer shall include the purchase order number (if applicable) when placing an order with Electromold.
2.5 Electromold reserves the right to refuse at its absolute discretion -
(a) any order within seven (7) days after the order is received; and
(b) to at any time accept or proceed with any order if the creditworthiness of the Customer is unsatisfactory in its opinion.
2.6 The Customer shall inform Electromold of any facts or matters which might reasonably affect any decision by Electromold as to whether to accept the order, supply goods or services and or to extend credit to the Customer.
Unless Electromold agrees in writing, no cancellation of an order will be accepted by Electromold after delivery of the goods or services or after seven (7) days from the date shown on the Customer's order.
4.1 Prices for the goods are as stated by Electromold in its invoice or its current price list and may be altered from time to time without notice to the Customer. All prices quoted by Electromold shall unless stated otherwise be exclusive of any GST and the Customer shall pay the price plus any GST when payment for the goods is due.
4.2 The Customer agrees to comply with Electromold's minimum invoice policy failing which Electromold shall have no obligation to supply the Customer.
5.1 Payment of any amount invoiced by Electromold to the Customer is due 30 days from invoice date. Payment must be made by cash, cheque, bank cheque, EFTPOS, credit card or direct credit to a bank account nominated by Electromold or another method agreed by Electromold in writing.
5.2 The Customer agrees to pay to Electromold any charges incurred by Electromold in relation to any payment made by the Customer by credit card.
5.3 The Customer acknowledges that Electromold may in its absolute discretion apply any payment received against any outstanding amount payable by the Customer.
5.4 Electromold reserves the right to vary the terms of payment and to require payment in cash in full prior to delivery if at any time the creditworthiness of the Customer is unsatisfactory in its opinion.
5.5 If the Customer has not paid any amount due to Electromold in full by the due date, Electromold may at its option terminate the contract, seek to recover the goods and resell or dispose of the goods without prejudice to any claims for damages it may have against the Customer. Electromold reserves the right to cancel orders or to suspend deliveries of other goods on any overdue account.
5.6 The Customer agrees that Electromold's records are conclusive evidence of the Customer's order for Goods and the charges payable to Electromold.
5.7 Without limiting the generality of any other clause in these Terms, Electromold may terminate these Terms without notice if any authorisation for payment to it is not supported by clear funds.
5.8 The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs incurred by Electromold for enforcement of obligations of the Customer under these Terms.
If any amount payable to Electromold has not been paid by the Customer within thirty (30) days of the due date for payment, Electromold may:
(a) charge interest on the amount outstanding (at the prevailing rate of penalty interest prescribed by the Penalty Interest Rate Act 1983 (Vic) or if this is greater than permitted by law then the highest rate permitted by law) from the due date for payment until such time as full payment of the outstanding amount is made by the Customer; and or
(b) invoice the Customer an administration fee equal to 5% of the amount outstanding that shall represent a reasonable estimate of Electromold's administrative expenses and labour that result from any such failure to make payment to Electromold in accordance with these terms
The Customer acknowledges that -
(a) it is entirely responsible for the provision to Electromold of -
(i) all relevant specifications;
(ii) any relevant information and or specification as to any part(s) and its use;
(iii) the plating and or metal finishing specification to be followed;
(iv) a description of the base material, plating type, plating thickness and location; and
(v) all other information and or specifications in relation to the goods and or services to be provided by Electromold.
(b) Electromold shall not be obligated to provide any goods or services to the Customer unless and until it receives from the Customer -
(i) the information referred to in clause 7(a) hereof; or
(ii) a written acknowledgment from the Customer that the information has not been provided and an authorisation that the goods and or services are to be supplied at the full risk of the Customer after payment is received.
(c) there has been no reliance by it on Electromold's skill or judgment or on any written or oral representations made by Electromold or any employee, agent, dealer or other person or company, including any catalogues or publicity material, in deciding whether the goods and or services are fit for a particular purpose or meet particular criteria.
(d) all photographs, weights, illustrations, dimensions and any other particulars given in or accompanying a quotation or contained in descriptive literature are approximate only and deviations there from shall not violate the contract or be made the basis of any claim made against Electromold.
(e) clerical errors are subject to corrections including without limitation, computer or system errors which result in incorrect product codes, description or pricing printed on delivery documentation and invoices.
8.1 The Customer shall at all times be responsible to ensure that any goods delivered by it to Electromold for metal processing or surface coating services shall be in good condition.
8.2 Electromold is not obligated to check the goods supplied by the Customer prior to processing or applying any coating to the same.
8.3 Electromold shall not be liable for any loss or damage suffered by the Customer as a result of unsatisfactory metal processing or surface coating services provided by Electromold where the cause of the unsatisfactory finish to such goods is due to the poor or unsatisfactory condition of the goods supplied by the Customer for processing.
9.1 Completed goods will be delivered to the Customer's nominated delivery address or made available for pick up at Electromold's premises at the discretion of Electromold unless otherwise agreed to in writing.
9.2 Electromold will have sole and absolute discretion as to the choice of carrier and method of carriage of the goods. Should the Customer nominate its own carrier then all costs of delivery including insurance will be payable by the Customer.
9.3 Electromold shall in its absolute discretion have the right to charge the Customer for delivery of the goods.
9.4 Any time quoted for delivery is an estimate only. Electromold shall not be liable for any delay, failure or inability to deliver or make the goods available for collection. The customer is not relieved of any obligation to accept or pay for goods because of any delay in delivery.
9.5 The goods shall be deemed to be available for collection and or delivered at the time when Electromold notifies the Customer that the goods are available for delivery or collection. Risk in the goods shall pass to the Customer upon notification that the goods are available for delivery or collection.
9.6 Electromold shall not under any circumstances be liable for any damage, loss, cost or expense incurred or suffered by the Customer as a result of any failure to deliver or for any delay in delivery irrespective of the cause or reason for such failure or delay.
9.7 Electromold may invoice the Customer an administration fee equal to 5% of the value of any frustrated delivery which fee shall represent a reasonable estimate of Electromold's administrative expenses and labour.
9.8 Electromold may cancel the contract if it determines that it is or may be unable to deliver within a reasonable time or at all. If the contract is cancelled, the customer will have no claim against Electromold for any damage, loss, cost or expense.
Electromold reserves the right to deliver by instalments and each instalment will be taken to be sold under a separate contract. A failure by Electromold to deliver any instalment will not entitle the Customer to cancel the balance of the order.
Within 7 days of delivery of goods the Customer must notify Electromold in writing of any claim for wrongful delivery, damaged or unsatisfactory goods or unsatisfactory services. Time is of the essence and the Customer will be taken to have absolutely waived any claim not notified to Electromold within the specified time.
The Customer must notify Electromold immediately of any defect in the goods of which it becomes aware after delivery and shall take all reasonable steps to mitigate any loss arising as a consequence of the defect.
Electromold is not obligated to insure the Customer's goods, or any services provided.
14.1 The Customer warrants that it is solvent and able to pay its debts as and when they fall due.
14.2 Electromold warrants to perform the services in a professional, workmanlike manner, consistent with industry standards. In the event we provide services that do not conform to this warranty, we will re-perform such services at no additional cost to the Customer. The liability of Electomold is limited to re-work and does not extend to the replacement cost of goods.
14.3 The Customer must notify Electromold in writing within 7 days of delivery of goods becoming aware of an alleged defect.
14.4 Any rejected or defective parts left in the possession of Electromold shall be the property of Electromold to dispose of as it sees fit.
14.5 Electromold accepts no responsibility whatsoever for any error in dimensions, quantities, specifications or otherwise where orders for any goods are placed on Electromold by the Customer otherwise than in writing.
All conditions and warranties expressed or implied by statute, the common law equity, trade, custom or usage or otherwise are expressly excluded to the maximum extent permitted by law.
The Customer agrees to release, hold harmless and indemnify Electromold to the maximum extent permitted by law from and against any liability whatsoever and howsoever arising (including, without limitation, from negligence or wilful misconduct on the part of Electromold or others) in connection with the sale of goods or services by Electromold.
17. INDIRECT LOSS
To the extent that the law permits, Electromold is not liable in any way for any indirect or consequential loss or loss of profit including, without limitation, any loss by reason of delay, non-delivery, defective or faulty materials or workmanship, negligence or any act or matter or thing done, permitted or omitted by Electromold.
In the event of a default by the Customer under these terms and conditions, the Customer shall indemnify and hold Electromold harmless from all costs and expenses incurred by Electromold and or its servants and agents in relation to the rectification of such default and or the enforcement of Electromold's rights under these terms and conditions.
The Customer shall notify Electromold in writing of any change in its structure and or management including but not limited to any change of directors, shareholders and or managers or any change in partnership or trusteeship within 7 days of the date of any such change.
The grant by Electromold of any credit facility or nomination of any credit limit shall not be binding on Electromold which may at its sole discretion and at any time vary or cancel any credit facility provided to the Customer or alter the terms under which such credit facility is provided.
Until full payment has been made for all goods and services supplied by Electromold under these terms and any other sums in any way outstanding from the Customer to Electromold from time to time -
(a) all sums outstanding become immediately due and payable by the Customer to Electromold if the Customer makes default in paying any other sums due to Electromold, becomes bankrupt, or commits any act of bankruptcy, compounds with its creditors, has judgment entered against it in any court or, being a company, has a provisional liquidator, liquidator, receiver, receiver manager or administrator appointed, notwithstanding the provisions of any other clause in these terms.
(b) the property in, and ownership of, the goods (including goods owned by the Customer and to which Electromold has carried out services) shall not pass from Electromold to the Customer and the Customer shall hold the goods as bailee for Electromold (returning the same to Electromold on request). The goods shall nevertheless be at the risk of the Customer from the time of delivery and shall be stored in a manner which identifies the goods as the property of Electromold.
(c) The Customer irrevocably authorises Electromold to enter any premises where the goods are kept, and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the goods.
Failure by Electromold to insist on strict performance of any terms, warranty or condition of the contract will not be taken as a waiver of it or of any rights Electromold may have and no waiver will be taken as a waiver of any subsequent breach of any terms, warranty or condition.
These terms and conditions shall apply to any agreement between Electromold and the Customer and no terms or conditions which the Customer may seek to impose shall apply unless agreed to in writing by Electromold.
Electromold may terminate any Contract immediately by written notice to the Customer, in which case the Customer must pay for all Goods and Services provided up to the date of termination.
These Standard Terms may only be varied in writing and Electromold may vary these Standard Terms upon notice to the Customer. If so, the Customer may terminate its Contract and must pay for all Goods and Services provided to that date. If the Customer continues to accept the Goods and Services, the varied terms will apply to all Services provided after that time.
Notwithstanding that any provision of these terms may prove to be illegal or unenforceable pursuant to any statute or rule of law or for any other reason, that provision is deemed omitted without affecting the legality of the remaining provisions and the remaining provisions of the terms shall continue in full force and effect.
These terms shall be governed and interpreted according to the laws of Victoria and Electromold and the Customer consent and submit to the jurisdiction of the Courts of Victoria.
Electromold shall not be, or be deemed to be, in default or breach of any agreement as a result of a matter beyond its reasonable control ("Force Majeure") including but not limited to strikes and lockouts.
29.1 Expressions used in this clause 31 and in the GST Act have the same meanings as when used in the GST Act.
29.2 Amounts payable and consideration provided under or in respect of any agreement between Electromold and the Customer are GST exclusive unless stated otherwise in writing.
29.3 A party is not obliged to pay the GST on a taxable supply to it until given a valid tax invoice for the supply.