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Terms and Conditions
Effective: February 2011
The following terms and conditions of sale form part of any contract for the supply of goods
or services by Womble Investments Pty Ltd (ACN 005 303 882) T/as East Coast Pipe
Supplies (“ ECPS”) to another party (“the Customer”).
1. Orders, Order Acknowledgements & Contract
1.1 An order or an offer to purchase is to be made by the Customer in writing.
1.2 Any quotation given or made by the ECPS, whether verbal or in writing, is not
an offer to sell or supply goods or services to the Customer.
1.3 An order made by the Customer constitutes an offer by the Customer to
purchase from ECPS the goods and services specified in the order subject to
these Terms and Conditions.
1.4 An order placed by the Customer pursuant to a quotation is not binding on
ECPS unless and until accepted by ECPS.
1.5 Acceptance by ECPS of an order placed by the Customer shall (regardless of
any prior arrangements made in respect of organisation of collection or delivery
or otherwise) only be deemed to have occurred when delivery is effected
pursuant to clause 2.4. ECPS may, at any time prior to delivery being effected:
(a) advise the Customer that it is unable or unwilling to supply the
goods;
(b) advise the Customer of any change in price for the goods.
1.6 Goods will be supplied at the price prevailing at the date of delivery.
1.7 If the Customer cancels an order, it must pay the ECPS for any loss, damage or
expense incurred by the ECPS in relation to the supply or proposed supply of
the order unless such cancellation follows notification by the ECPS of a change
in price for the goods as contemplated by clause 1.6(b), in which case the
Customer may cancel the order without penalty.
1.8 “Special Orders and Indent Stock” (stock that is specially ordered in or those
orders that are that are value-added and cannot be re-sold to another
Customer) cannot be cancelled and the Customer must take delivery and pay
ECPS within ECPS’ Terms and Conditions. A deposit maybe payable.
1.9 Previous dealings between ECPS and the Customer shall not have any effect
on the Contract
2. Delivery
2.1 Upon receipt of an order, ECPS may advise the Customer if and when the
goods ordered will be available for collection from ECPS’ premises.
2.2 The Customer may arrange for the goods ordered to be collected from
ECPS’ premises or alternatively may request that ECPS arrange for the goods
to be delivered to the Customer’s premises. If the Customer requests that
ECPS arrange delivery, the Customer acknowledges that ECPS will do so on
the Customer’s behalf and that the Customer will be responsible for all costs
associated with delivery of the goods.
2.3 ECPS will make all reasonable efforts to have the Goods delivered to the
Customer or his designated agent as agreed between the parties (or if there is
no specific agreement than at ECPS’ reasonable discretion), but ECPS shall
not be liable for :
(a) any failure to deliver or delay in delivery for any reason; or
(b) any damage or loss due to unloading or packaging; or
(c) damage to property caused upon entering premises to deliver the
Goods.
Any costs incurred by ECPS due to any failure by the Customer to accept the
Goods at time of delivery will be reimbursed by the Customer to ECPS. Except
as required by law, ECPS will be under no obligation to accept Goods returned
for any reason.
2.4 Delivery of the goods shall be deemed to be effected as soon as the goods
are despatched from ECPS’ premises (whether ECPS has arranged delivery
or not).
3. Detention/Demurrage
3.1 ECPS reserves the right to charge the Customer for any costs, charges or
expenses whatsoever that the ECPS may incur as a result of vehicle or wagon
detention (to the extent the same is not caused or contributed to by ECPS).
4. Prices
4.1 Unless otherwise agreed in writing, the price charged for the Goods shall be
(i) exclusive of any transaction tax (“transaction tax” includes the goods and
services tax as well as any identified or new transaction taxes that come into
existence after the effective date of these Terms and Conditions), and
(ii) as per the price ruling as determined be ECPS at the date of
delivery. Any price indications or price lists are subject to alteration in
accordance with the price ruling as at that date of delivery.
5. Standard Grades of Materials
5.1 Goods supplied which are not manufactured by ECPS (or to the extent that
they are not manufactured by ECPS) are subject to the chemical composition,
physical properties and product standards of the original manufacturer, and by
such warranty as specified by the original manufacturer (if any), and ECPS
does not, unless specifically required by law, give any warranty beyond such
warranty.
6. Credit
6.1 The extension of credit shall be at the absolute discretion of ECPS and the
application will contain or annex such financial information and documents as
ECPS may require.
6.2 Until ECPS grants the Customer credit by notice in writing, ECPS will only
supply Goods to the Customer on the basis of cash in advance.
6.3 Where credit terms are approved, payment must be made within 30 days of
the end of the month in which the goods are delivered or the services
performed, unless otherwise agreed in writing by ECPS.
6.4 The Customer must notify ECPS in writing if there is a change in shareholding
or ownership of the Customer or any material change in the Customer’s
financial position.
6.5 The customer agrees that if requested by ECPS the Customer will:
i) charge in favour of ECPS all beneficial interests (freehold and leasehold) in
real estate held now or in the future by it as security for payment of all and any
moneys payable by the Customer to ECPS.
ii) execute a mortgage or other instrument of security in form requested by
ECPS.
6.6 Without in any way limiting ECPS’ right to require payment in full on the due
date, ECPS may charge interest on overdue accounts at the rate of 1.5% per
month. Such interest is to be charged and debited to the Customer’s account.
6.7 All losses, expenses and costs incurred by ECPS as a result of the Customer's
failure to pay any amounts owing when due (including legal fees on an
indemnity basis and any fees and costs incurred by ECPS in engaging a
collection recovery service) are recoverable from the Customer by ECPS. Any
such losses, expenses and costs are to be charged and debited to the
Customer’s account.
7. Title and Related Matter
7.1 Risk in the goods passes to the Customer upon delivery (including all risks
associated with unloading) or upon the title of the Goods passing to the
Customer, whichever is the earlier.
7.2 If ECPS notifies the Customer that the goods are ready for delivery and the
Customer requests ECPS to hold the goods on its behalf or refuses to
accept delivery, such goods will be held by ECPS at the Customer’s risk and
ECPS shall be entitled to charge a reasonable storage fee in respect of the
goods. Where this is requested for “Special Orders and Stock Indents” (see
clause 1.8), as well as a reasonable storage charge, ECPS will invoice the
Customer for the goods and payment will be due as per these Terms and
Conditions
7.3 Legal and equitable title in the goods will remain with ECPS until full payment is
made for all goods and services supplied by ECPS to the Customer.
7.4 Until such time as title to the goods passes to the Customer in
accordance with clause 7.3 the Customer:
(a) shall hold the goods as fiduciary agent and bailee of ECPS and
shall return the goods, at Customer’s cost, to ECPS if so requested;
(b) shall store the goods separately from any products belonging to the
Customer and shall identify the goods as belonging to ECPS.
7.5 Without limiting any other remedies ECPS may have, if payment for any
delivery of goods is not made when due, duly authorised representatives for
ECPS may, without giving notice to the Customer, enter the premises where
ECPS reasonably believes the goods are situated and re-take
possession of the goods.
7.6 Notwithstanding the foregoing the Customer as fiduciary may, subject to clause
7.3 sell the goods in the ordinary course of its business.
7.7 The Customer will receive all proceeds, whether tangible or intangible, direct
or indirect of any dealing with the goods in trust for ECPS and will keep such
proceeds in a separate account until all liability to ECPS has been fully
discharged.
7.8 The Customer shall insure the goods at the Customer’s expense against loss or
damage from any cause whatsoever, noting on any such policy or policies the
interest of ECPS, and shall produce to ECPS a copy of the policy or policies
and evidence of payment and the coverage of the interest of ECPS, whenever
reasonably required by ECPS to do so.
8 Intellectual Property
8.1 The Customer warrants ECPS that all documents provided by the Customer are
accurate and that ECPS is entitled to use all such documents for the purposes
of the Contract and that such use does not infringe any third party’s intellectual
property rights.
8.2 The Customer indemnifies ECPS against all claims and all losses and damages
incurred by ECPS as a result of documents provided by the Customer to ECPS
for the purposes of or in the course of supply of the Goods breaching a third
party’s intellectual property rights.
8.3 If the Customer receives any confidential information from ECPS the Customer
may not use or disclose such information unless it receives the prior written
consent of ECPS, such information enters the public domain (other than as a
result of a breach of this paragraph), or the use or disclosure is required by law.
9. Force Majeure
9.1 ECPS is not liable for failure to perform the Contract to the extent and for so
long as its performance is prevented or delayed because of:
a) circumstances outside of ECPS control;
b) failure of ECPS machinery; or
c) failure of a supplier to ECPS
10 Damaged or Non Conforming Goods
10.1 The Customer shall inspect the goods immediately upon delivery and if the
Customer believes that the goods are damaged or not otherwise in conformity
with the relevant order made by the Customer and accepted by ECPS, the
Customer shall give written notice to ECPS within twenty-four (24) hours of
delivery.
10.2 Any goods in respect of which the Customer has given a notice in
accordance with clause 10.1 shall :
(a) be left in the state and condition in which they were delivered; and
(b) be stored by the Customer in a safe and secure location,
until such time as ECPS or its duly authorised representative has inspected
and/or re-tested the goods, such inspection to be carried out in a reasonable
time after notification by the Customer. The Customer shall allow ECPS or its
duly authorised representative access to the goods at any time during business
hours for the purpose of effecting such inspection.
10.3 If :
(a) the goods are not left in the state and condition in which they were
delivered; or
(b) the Customer fails to store the goods in a safe and
secure location pending inspection by ECPS and, as a result, the
goods are stolen, lost, destroyed or damaged in any way,the Customer shall be
deemed to have accepted the goods and shall pay the purchase price for the
goods delivered in full.
10.4 If, upon inspection by ECPS or its duly authorised representative,
ECPS acknowledges that the goods delivered are damaged or not
otherwise in conformity with the relevant order made by the Customer and
accepted by ECPS, then ECPS shall, as soon as practicable, replace the
damaged or non-conforming goods. This shall be the Customer’s only remedy
in respect of the supply by ECPS of damaged or non-conforming
goods.
10.5 If, upon inspection by ECPS or its duly authorised representative,
ECPS disputes that the goods delivered are damaged or not otherwise in
conformity with the relevant order made by the Customer and accepted by
ECPS, the dispute shall be resolved in accordance with clause 12
11. Warranties and Conditions
11.1 The Customer warrants that:
(a) the Customer is a party to this contract for supply of
goods and services as a principal in its own right. If the
Customer acts as agent or trustee of a trust, it must
inform ECPS in writing of the details of this relationship;
(b) any financial information ECPS may require the Customer to give
is true and accurate and the Customer will keep ECPS informed of
any material adverse change;
© the Customer will not make any false or misleading
representations or claims about the goods or services to people to
whom it sells them;
(d) the Customer will comply with all legislation and hold all
requisite regulatory permits and licences to allow it to purchase and
sell the goods and services and, where applicable, to warehouse,
transport and distribute the goods. The Customer must
provide ECPS, at ECPS’ request, with copies of appropriate
permits and licences.
11.2 The Customer acknowledges and agrees that ECPS has not made any
representations or warranties in relation to the goods or services except as set
out in these Terms and Conditions.
11.3 Any description of goods supplied, given or used by ECPS is by way of
identification only and shall not constitute any sale of such goods as a sale by
description.
11.4 It is the responsibility of the Customer to satisfy itself that goods
supplied are of the description, quality and character ordered and
ECPS shall not be liable for any loss or damage, direct or indirect,
howsoever arising from the failure of the Customer to satisfy itself.
11.5 The Customer acknowledges and agrees that it does not rely on the skill or
judgement of ECPS in relation to the suitability of any goods or services for a
particular purpose unless it has indicated that purpose in writing to ECPS and
ECPS has acknowledged in writing that the goods will be fit for that purpose. In
the event that that ECPS has acknowledged in writing that the goods will be fit
for a particular purpose and the goods supplied are ultimately not fit for that
purpose, ECPS’ liability for any breach of the warranty relating to fitness for
purpose shall be limited to replacement of goods or the supply of equivalent
goods.
11.6 All implied warranties and conditions are excluded to the maximum extent
permitted by law. To the extent that ECPS is unable to exclude the operation of
any implied warranties, ECPS’ liability for any breach of any implied
warranty is limited to:
(a) in the case of goods, the replacement of goods or the supply of
equivalent goods;
(b) in the case of services, the supply or re-supply of equivalent
services.
11.7 To the maximum extent permitted by law, ECPS is not liable for:
(a) any loss or damage to the goods resulting from any act or
omission on the part of the Customer, or its employees,
contractors or agents;
(b) any special, consequential, direct or indirect loss or damage
incurred by the Customer.
12. Dispute Resolution
12.1 If a dispute between the parties arises out of, or on connection with, this
Agreement, each party must notify the other party, in writing, of the issues in
dispute immediately ("Dispute Notice").
12.2 Within seven (7) days of a party receiving a Dispute Notice, the parties must
confer at least once to resolve the issues in dispute with, or without, the
assistance of a mediator.
12.3 If the dispute has not been resolved within fourteen (14) days of service of the
Dispute Notice, the parties must immediately refer the dispute to an expert
appointed by:
(a) agreement between the parties; or
(b) the President of the Queensland Law Society,for determination.
The parties agree to be bound by the determination.
12.4 In adjudicating the dispute, the expert must act as an expert and not as an
arbitrator.
12.5 The procedure to be followed by the expert is to be in accordance with the
Expert Determination Rules of the Institute of Arbitrators and Mediators of
Australia.
12.6 All discussions and correspondence between the parties of and incidental to
any dispute or difference between them shall be privileged.
13. Termination of Credit
13.1 ECPS may, in its absolute discretion, elect to terminate the extension of credit
to the Customer by giving the Customer thirty (30) days notice of its intention to
do so.
13.2 ECPS may, in addition to any other course of action available to it, elect to
immediately terminate the extension of credit to the Customer without giving the
Customer any notice if the Customer:
(a) is served with any proceedings under the Bankruptcy Act or the
winding-up provisions of the Corporations Act or similar legislation;
(b) is insolvent or unable to pay its debts as and when they fall due;
© is placed in liquidation, provisional liquidation, voluntary
administration or if it or any of its assets are placed in receivership
or under external management or control; or
(d) commits a breach of these terms and fails to remedy such breach
after being given seven (7) days written notice by ECPS to do so.
13.3 On termination all invoices rendered by ECPS are payable immediately, without
ECPS needing to make any demand for payment.
14. Guarantee
14.1 Each of the directors named in Part B of the application to which these Terms
and Conditions are attached who sign the application (“the Guarantors”) :
(a) hereby jointly and severally guarantee to ECPS the due and
punctual performance and observance by the Customer of any and
all of the covenants, provisions and stipulations on the part of the
Customer to be performed and observed under and pursuant to
these Terms and Conditions (“the guaranteed obligations”); and
(b) jointly and severally indemnify and agree to keep indemnified
ECPS against and in respect of any and all actions,
claims, demands, losses, damages, costs and expenses whether
legal or equitable and whether arising directly or indirectly from any
failure by the Customer to perform the guaranteed
obligations when due.
14.2 This guarantee and indemnity shall be a continuing guarantee and indemnity
until the whole of the guaranteed obligations are performed and shall not be
affected in any way by any delay or period of grace or other indulgence given or
allowed by ECPS or by any other thing which, but for this provision, would have
the effect of releasing the Guarantors from liability hereunder (including, without
limitation, failure by any director named in Part B of the application to sign the
application).
14.3 The Guarantors hereby consent to the lodgement, by ECPS, of a
caveat over any land owned by the Guarantors for the purposes of securing
payments to be made by the Guarantors to ECPS pursuant to this
Agreement.
15. Waiver
ECPS waives a right under a Contract only by written notice that it waives that
right. A waiver is limited to the specific instance to which it relates and the
specific purpose for which it is given.
16. Severance
If a provision of a Contract would, but for this clause, be unenforceable:
a) the provision must be read down to the extent necessary to avoid
that result;
b) if the provision cannot be read down to that extent, it must be
severed without altering the validity and enforceability of the
remainder of the Contract
17. Variation
ECPS may vary the Term and Conditions without notice to the Customer.
18. Applicable Law
18.1 This contract shall be governed by and construed in accordance with the law in
effect in Queensland and the parties acceptthe jurisdiction of the courts of
Queensland in relation to any dispute between them.
18.2 The rights provided under this agreement are cumulative and not
exclusive of any rights provided by law.
19. Assignment
The Customer shall not assign or otherwise deal with any part of their rights or
obligations under this agreement without the prior written consent of the ECPS.

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