“PEX” means CT TNHH SX TMDV XNK PEX, its successors and assigns or any person acting on behalf of and with the authority of CT TNHH SX TMDV XNK PEX.
”Customer” shall mean the Customer (or any person, including any Trustee acting on behalf of and with the authority of the Customer) as described on any quotation, work authorization or other form as provided by PEX to the Customer.
“Goods” means all Goods or Services supplied by PEX to the Customer at the Customer’s request from time to time (where the context so permits the terms ‘Goods’ or ‘Services’ shall be interchangeable for the other).
“Price” means the Price payable for the Goods as agreed between PEX and the Customer in accordance with clause 4 below.
Acceptance 2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Customer places an order for or accepts delivery of the Goods. 2.2 These terms and conditions may only be amended with PEX’s consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and PEX. 2.3 The Customer acknowledges and accepts in the event that the Customer is a Trustee acting on behalf of a legal entity Trust, then PEX reserves the right to request the written authority pertaining to the said authority endorsing the Trustee’s right to enter into a legally binding contract between the Customer and PEX to which that party will then be bound to the terms and condition of this document. 2.4 No order which has been accepted by PEX may be cancelled by the buyer except with the agreement in writing of PEX and on terms that the buyer shall indemnify PEX in full against all loss (Including loss of Profit), costs (Including the cost of all labour and materials used), damages, charges and expenses incurred by PEX as a result of cancellation.
Change in Control 3.1 The Customer shall give PEX not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s name, address, contact phone or fax number/s, or business practice). The Customer shall be liable for any loss incurred by PEX as a result of the Customer’s failure to comply with this clause.
Price and Payment 4.1 At PEX’s sole discretion the Price shall be either: (a) as indicated on any invoice provided by PEX to the Customer; or (b) PEX’s quoted price (subject to clause 4.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days. Any material delivered after 30 days of date of quotation will be subject to any increases that may have occurred. Please do not hesitate to contact me with any further queries. 4.2 PEX reserves the right to change the Price if a variation to PEX’s quotation is requested. 4.3 PEX reserves the right, by giving notice to the buyer at any time before delivery, to increase the price of the goods where delivery occurs more than 6 months after the date of acceptance of the order to reflect any increase in the cost to PEX which is due to any factors beyond the control of PEX (Such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the cost of labor, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the good which is requested by the buyer, or any delay caused by any instructions of the buyer or failure of the buyer to give PEX adequate information or instructions. 4.4 Mark up any alterations you have on the schedules, fax back to us & we will adjust accordingly. Unless you advise otherwise your acceptance of this quote signifies your acceptance of the scheduled sizes & quantities. No additional items will be included in the above price. Any required item overlooked by either you or us & not on 4.5 At PEX’s sole discretion a non-refundable deposit may be required.4.6 Time for payment for the Goods being of the essence, the Price will be payable by the Customer on the date/s determined by PEX, as below: (a) 50% deposit required to schedule for production. 50% balance required before delivery. (b) PEX accept credit account which is applied as forteen (14) days accounts applied after the first 3 orders and, thirty (30) days accounts applied after the first 6 orders. 4.7 The Customer acknowledges and agrees that the debit balance of the Customer’s account must not exceed the allowed credit limit provided by PEX. 4.8 Payment may be made by cash, cheque, electronic/on-line banking, credit card, or by any other method as agreed to between the Customer and PEX. 4.9 Unless otherwise stated the Price does not include GST. In addition to the Price the Customer must pay to PEX an amount equal to any GST PEX must pay for any supply by PEX under this or any other agreement for the sale of the Goods. The Customer must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Customer pays the Price. In addition, the Customer must pay any other taxes and duties that may be applicable in addition to the Price except where they are expressly included in the Price.
Delivery of Goods 5.1 Delivery (“Delivery”) of the Goods is taken to occur at the time that: (a) the Customer or the Customer’s nominated carrier takes possession of the Goods at PEX’s address; or (b) PEX (or PEX’s nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address. 5.2 At PEX’s sole discretion the cost of delivery is either included in the Price or is in addition to the Price. 5.3 The Customer must take delivery by receipt or collection of the Goods whenever they are tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then PEX shall be entitled to charge a reasonable fee for redelivery and/or storage. 5.4 PEX may deliver the Goods in separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions. 5.5 Any time or date given by PEX to the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and PEX will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
Risk 6.1 Risk of damage to or loss of the Goods passes to the Customer on Delivery and the Customer must insure the Goods on or before Delivery. 6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, PEX is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by PEX is sufficient evidence of PEX’s rights to receive the insurance proceeds without the need for any person dealing with PEX to make further enquiries. 6.3 If the Customer requests PEX to leave Goods outside PEX’s premises for collection or to deliver the Goods to an unattended location then such Goods shall be left at the Customer’s sole risk.
Access The Customer shall ensure that PEX has always clear and free access to the work site to enable them to undertake the works. PEX shall not be liable for any loss or damage to the site (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas) unless due to the negligence of PEX.
Title 8.1 PEX and the Customer agree that ownership of the Goods shall not pass until: (a) the Customer has paid PEX all amounts owing to PEX; and (b) the Customer has met all of its other obligations to PEX. 8.2 Receipt by PEX of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honored, cleared, or recognized. 8.3 It is further agreed that: (a) until ownership of the Goods passes to the Customer in accordance with clause 8.1 that the Customer is only a bailee of the Goods and must return the Goods to PEX on request.
(b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for PEX and must pay to PEX the proceeds of any insurance in the event of the Goods being lost, damaged, or destroyed.(c) the Customer must not sell, dispose, or otherwise part with possession of the Goods other than in the ordinary course of business and for market value. If the Customer sells, disposes or parts with possession of the Goods then the Customer must hold the proceeds of any such act on trust for PEX and must pay or deliver the proceeds to PEX on demand.
(d) the Customer should not convert or process the Goods or intermix them with other goods but if the Customer does so then the Customer holds the resulting product on trust for the benefit of PEX and must sell, dispose of or return the resulting product to PEX as it so directs.
(e) the Customer irrevocably authorizes PEX to enter any premises where PEX believes the Goods are kept and recover possession of the Goods.
(f) PEX may recover possession of any Goods in transit whether or not delivery has occurred.
(g) the Customer shall not charge or grant an encumbrance over the Goods nor grant nor otherwise give away any interest in the Goods while they remain the property of PEX.
(h) PEX may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer
Personal Property Securities Act 2009 (“PPSA”) 9.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA. 9.2 Upon assenting to these terms and conditions in writing the Customer acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in all Goods that have previously been supplied and that will be supplied in the future by PEX to the Customer. 9.3 The Customer undertakes to: (a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up to date in all respects) which PEX may reasonably require to; (i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register. (ii) register any other document required to be registered by the PPSA; or (iii) correct a defect in a statement referred to in clause 9.3(a)(i) or 9.3(a)(ii). (b) indemnify, and upon demand reimburse, PEX for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Goods charged thereby. (c) not register a financing change statement in respect of a security interest without the prior written consent of PEX. (d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favor of a third party without the prior written consent of PEX.
Security and Charge 10.1 In consideration of PEX agreeing to supply the Goods, the Customer charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Customer either now or in the future, to secure the performance by the Customer of its obligations under these terms and conditions (including, but not limited to, the payment of any money). 10.2 The Customer indemnifies PEX from and against all PEX’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising PEX’s rights under this clause. 10.3 The Customer irrevocably appoints PEX and each director of PEX as the Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 10 including, but not limited to, signing any document on the Customer’s behalf.
Defects, Warranties and Returns, Competition and Consumer Act 2010 (CCA) 11.1 The Customer must inspect the Goods on delivery and must within seven (7) days of delivery notify PEX in writing of any evident defect/damage, shortage in quantity, or failure to comply with the description or quote. The Customer must notify any other alleged defect in the Goods as soon as reasonably possible after any such defect becomes evident. Upon such notification the Customer must allow PEX to inspect the Goods. 11.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees). 11.3 PEX acknowledges that nothing in these terms and conditions purports to modify or exclude the NonExcluded Guarantees. 11.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, PEX makes no warranties or other representations under these terms and conditions including but not limited to the quality or suitability of the Goods. PEX’s liability in respect of these warranties is limited to the fullest extent permitted by law. 11.5 If the Customer is a consumer within the meaning of the CCA, PEX’s liability is limited to the extent permitted by section 64A of Schedule 2. 11.6 If PEX is required to replace the Goods under this clause or the CCA, but is unable to do so, PEX may refund any money the Customer has paid for the Goods 11.7 If the Customer is not a consumer within the meaning of the CCA, PEX’s liability for any defect or damage in the Goods is: (a) limited to the value of any express warranty or warranty card provided to the Customer by PEX at PEX’s sole discretion; (b) limited to any warranty to which PEX is entitled, if PEX did not manufacture the Goods; (c) otherwise negated absolutely. 11.8 Subject to this clause 11, returns will only be accepted provided that: (a) the Customer has complied with the provisions of clause 11.1; and (b) PEX has agreed that the Goods are defective; and (c) the Goods are returned within a reasonable time at the Customer’s cost (if that cost is not significant); and (d) the Goods are returned in as close a condition to that in which they were delivered as is possible. 11.9 Notwithstanding clauses 11.1 to 11.8 but subject to the CCA, PEX shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of: (a) the Customer failing to properly maintain or store any Goods; (b) the Customer using the Goods for any purpose other than that for which they were designed; (c) the Customer continuing the use of any Goods after any defect became apparent or should have become apparent to a reasonably prudent operator or user; (d) the Customer failing to follow any instructions or guidelines provided by PEX; (e) fair wear and tear, any accident, or act of God. 11.10 Notwithstanding anything contained in this clause if PEX is required by a law to accept a return, then PEX will only accept a return on the conditions imposed by that law.
Intellectual Property 12.1 Where PEX has designed, drawn or developed Goods for the Customer, then the copyright in any designs and drawings and documents shall remain the property of PEX. 12.2 The Customer warrants that all designs, specifications or instructions given to PEX will not cause PEX to infringe any patent, registered design or trademark in the execution of the Customer’s order and the Customer agrees to indemnify PEX against any action taken by a third party against PEX in respect of any such infringement. 12.3 The Customer agrees that PEX may (at no cost) use for the purposes of marketing or entry into any competition, any documents, designs, drawings or Goods which PEX has created for the Customer.
Default and Consequences of Default 13.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at PEX’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment. 13.2 If the Customer owes PEX any money the Customer shall indemnify PEX from and against all costs and disbursements incurred by PEX in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, PEX’s collection agency costs, and bank dishonors fees).
