1 . DEFINITIONS
1.1 “ TSRG” means ‘PANDANAUT PROJECTS PTY LTD T/A TSRG’ (ABN 60 663 276 220) by its successors assigns or any person acting on behalf of and with the authority of PANDANAUT PROJECTS PTY LTD T/A TSRG.
1.2 “Customer” means the person/s placing the order and/or on behalf of a business buying the, ‘Goods’ and/or ‘Services’ as specified in any invoice, document/contract or order, and if there is more than one Customer is a reference to each Customer jointly and severally.
1.3 “Invoice” means ‘Credit’, ‘Goods’, ‘Services’, ‘Works’, any credit supplied by TSRG to the Customer at the Customer’s request from time to time where the context so permits the terms, ‘Invoice’, ‘Goods’, ‘Works’, ‘Services’, ‘ Credit ’ shall be interchangeable for each other.
1.4 “Price” means the Price payable as agreed between TSRG and the Customer in accordance with clause 4.
2. ACCEPTANCE
2.1 The Customer is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions of the Customer places an order for or accepts delivery of any ‘Goods’ or ‘Services’ (any credit).
2.2 These terms and conditions may only be amended with TSRG consent in writing and shall prevail to the extent of any inconsistency with any other document or agreement between the Customer and TSRG.
3. CHANGE OF CONTROL
3.1 The Customer shall give TSRG 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 TSRG as a result of the Customer’s failure to comply with this clause.
4. PRICE & PAYMENT
4.1 At TSRG sole discretion the Price shall be either:
a) as indicated on any invoice provided by TSRG t o the Customer; or
b) the Price as at the date of delivery of the Invoice according to TSRG current price list; or
c) TSRG quoted price (subject to clause 5.2) which will be valid for the period stated in the quotation or otherwise for a period of thirty (30) days.
4.2 TSRG reserves the right to change the Price if a variation to TSRG quotation is requested. Payment for all variations must be made in full at their time of completion.
4.3 At TSRG sole discretion a non-refundable deposit may be required.
4.4 Time for payment of the Invoice being of the essence, the Price will be payable by the Customer on the date/s determined by TSRG, which may be:
a) on delivery;
b) before delivery;
c) the date specified on any invoice or other form as being the date for payment; or
d) failing any notice to the contrary, the date which is fourteen (14) days following the date of any invoice given to the Customer by TSRG.
4.5 Payment may be made by cash, bank cheque, electronic/on-line banking, or by any other method as agreed to between the Customer and TSRG.
4.6 Unless otherwise stated the Price does not include G S T . In addition to the Price the Customer must pay to TSRG an amount equal to any GST TSRG must pay for any supply by TSRG 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.
5. 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 TSRG address; or
b) TSRG (or nominated carrier) delivers the Goods to the Customer’s nominated address even if the Customer is not present at the address.
5.2 At TSRG sole discretion the cost of delivery is either included in the Price or is in addition to the Price.
5.3 Delivery of the Goods to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this agreement.
5.4 The Customer must take delivery by receipt or collection of the Goods whenever either is tendered for delivery. In the event that the Customer is unable to take delivery of the Goods as arranged then TSRG shall be entitled to charge a reasonable fee for re- delivery of the Goods and/or the storage of the Goods.
5.5 The Customer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:
a) such discrepancy in quantity shall not exceed five percent ( 5% ); and
b) the Price shall be adjusted pro rata to the discrepancy.
5.6 TSRG 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.
5.7 Anytime or date given by TSRG t o the Customer is an estimate only. The Customer must still accept delivery of the Goods even if late and TSRG will not be liable for any loss or damage incurred by the Customer as a result of the delivery being late.
6. RISK
6.1 Risk o f damage to or loss of the Goods passes to the Customer on Delivery a n d 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, TSRG is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by TSRG is sufficient evidence of TSRG rights to receive the insurance proceeds without the need for any person dealing with TSRG to make further enquiries.
7. ACCESS
7.1 The Customer shall ensure that TSRG has clear and free access to the worksite at all times to enable TSRG to undertake the works. TSRG 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.
8. DIMENSION, PLANS & SPECIFICATIONS
8.1 All customary industry tolerances shall apply to the dimensions and measurements unless TSRG and the Customer agree otherwise in writing. TSRG shall be entitled to rely on the accuracy of any plans, specifications and other information provided by the Customer.
8.2 If the giving of an estimate or quotation for the supply of Goods /Materials involves TSRG estimating measurements and quantities, it shall be the responsibility of the Customer to verify the accuracy of TSRG estimated measurements and quantities, before the Customer places an order based on such estimate or accepts such quotation.
8.3 Should the Customer require any changes to TSRG estimated measurements and quantities, the Customer shall request such changes in writing. In the case of an estimate before placing an order and in the case of a quotation before acceptance.
9. CUSTOMER’S DISCLAIMER
9.1 The Customer hereby disclaims any right to rescind, or cancel the order placed or to sue for damages or to claim restitution arising out of any inadvertent misrepresentation made to the Customer by TSRG and the Customer acknowledges relying solely on TSRG skills and judgement.
9.2 Where TSRG provides advice to the Customer, such advice is given in good faith only. The Customer acknowledges that TSRG shall not be liable for any claims howsoever arising out of any advice given.
10. RETENTION OF TITLE TO GOODS
10.1 TSRG and the Customer agree that ownership of the Goods shall not pass until:
a) the Customer has paid TSRG all amounts owing to TSRG; and
b) the Customer has met all of its other obligations to TSRG.
10.2 Receipt by TSRG of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised.
10.3 It is further agreed that:
a) until ownership of the Goods passes to the Customer in accordance with clause 10.1 that the Customer is only a bailee of the Goods and must return the Goods to TSRG on request.
b) the Customer holds the benefit of the Customer’s insurance of the Goods on trust for TSRG and must pay to TSRG 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 TSRG and must pay or deliver the proceeds to TSRG 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 TSRG and must sell, dispose of or return the resulting product to TSRG as it so directs.
e) the Customer irrevocably authorises TSRG to enter any premises where TSRG believes the Goods are kept and recover possession of the goods.
f) TSRG 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 TSRG.
h) TSRG may commence proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods has not passed to the Customer.
11 . PERSONAL PROPERTY SECURITIES Act 2009 (PPSA)
11.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
11.2 Upon assenting to these terms and conditions in writing or by act, 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 Account, Goods and/or All Personal Property of the Customer / Grantor, including that has previously been supplied and that will be supplied in the future by TSRG to the Customer.
11.3 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 TSRG 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 11.3( a)(i) or 11.3(a) (ii);
b) indemnify, and upon demand reimburse, TSRG 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 TSRG;
d ) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of TSRG;
e) immediately advise TSRG of any material change in its business practices of selling Goods which would result in a change in the nature of proceeds derived from such sales.
11.4 TSRG and the Customer agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
11.5 The Customer waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3) (d) and 132(4) of the PPSA.
11.6 The Customer waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
11.7 Unless otherwise agreed to in writing by TSRG, the Customer waives their right to receive a verification statement in accordance with section 157 of the PPSA.
11.8 The Customer must unconditionally ratify any actions taken by the TSRG under clauses 11.3 to 11.7.
11.9 Subject to any express provisions to the contrary, nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
12. SECURITY & CHARGE
12.1 In consideration of TSRG agreeing to supply the Credit , the Customer charges all of its rights, title and interest (whether joint or several) in any land, reality 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).
12.2 The Customer indemnifies TSRG from and against all TSRG costs and disbursements including legal costs on a solicitor and own Customer basis incurred in exercising TSRG rights under this clause.
12.3 The Customer irrevocably appoints TSRG a n d each director of TSRG a s t he Customer’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 1 2 including, but not limited to, signing any document on the Customer’s behalf.