AEM Consolidated Pty Ltd
3. Interest will be charged on overdue accounts at the rate charged to AEM by its bank on overdrafts up to $100,000, plus 2%, and calculated daily from date of invoice.
a. Property in goods shall not pass until payment in full of all monies owed by the Customer to AEM which reserves the right to take possession and dispose of goods as it sees fit at any time until full payment.
b. The Customer grants permission to AEM to enter any property for that purpose and with such force as is necessary.
c. Immediately upon delivery the Customer accepts liability for the safe custody of the goods and agrees to indemnify AEM for any losses relating thereto.
d. Upon sale or disposal of any goods prior to full payment, the Customer agrees to deposit all proceeds in a separate bank account, agrees not to mix proceeds with any other monies and will forthwith account to AEM therefor notwithstanding that AEM may have granted any credit facility or time to pay or both.
e. Until payment in full the Customer agrees –
(1) to keep all goods unpaid for as fiduciary for AEM and store them in a manner which shows AEM as owner;
(2) only to sell goods in the usual course of its business on condition that the Customer holds all proceeds in trust for AEM;
(3) that sale on terms or for less than cost shall not be “in the usual course”.
f. This clause is not intended to create a charge over any goods and shall be read down to the extent necessary to avoid creating a charge.
g. The Customer agrees that goods will be deemed at all times to be dealt with by the Customer on a “first in first out” basis for the purpose of all transactions between the Customer and AEM.
h. The Customer agrees that a certificate purporting to be signed by an officer of AEM identifying goods as unpaid for shall be conclusive evidence that the goods have not been paid for and of AEM‘s title thereto.
5. Warranty policy:
a. Goods and materials – AEM gives no warranty on goods sold by it or on materials used in any repair work other than the warranty offered by the manufacturer of those goods or materials.
b. Repairs – AEM warrants its workmanship on all repairs for a period of 12 months from date of repair invoice. In any case where AEM’s workmanship is found to have been faulty within the warranty period, the Customer must return the repaired goods to AEM at the Customer’s expense and AEM will carry out the repairs again at no charge to the Customer. This warranty does not apply if the repaired goods have been tampered with after the warranted repairs, or if they have been misused, improperly installed, incorrectly connected to a power supply, inadequately maintained or otherwise abused.
6. Limitation of Liability:
Subject to these Terms –
a. The Customer agrees to limit any claim it makes to the cost of supply of equivalent or replacement goods or the supply of services again.
b. AEM shall not be liable for any claim for loss or expense arising which is made after 7 days from date of delivery of goods or services (or at all once goods have been unpacked, on-sold or otherwise used or applied) after which there shall be deemed to have been unqualified acceptance.
c. AEM will not be liable in any way for any contingent consequential direct or indirect special or punitive damage arising in any way and whether due to AEM‘s negligence or otherwise and the Customer acknowledges this express limit of liability and agrees to limit any claim accordingly.
d. No other term, condition, agreement, warranty, representation or understanding whatsoever whether express or implied in any way extending to, otherwise relating to or binding upon AEM, other than these Terms and terms compulsorily implied by statute, is made or given.
a. Sample: No contract between AEM and the Customer shall be or be deemed to be a sale by sample.
b. If AEM publishes material concerning its goods, services and prices anything so published which is incompatible with these Terms is expressly excluded.
c. All such material published by AEM is to be taken as representing generally the goods and services concerned and is not to be taken as necessarily representing the goods or services comprised in any quotation or order and will not form part of any contract between AEM and the Customer.
d. The Customer will rely on its own knowledge and expertise in selecting any goods or services for any purpose and any advice or assistance given for or on behalf of AEM shall be accepted at the Customer’s risk and shall not be or be deemed given as expert or adviser nor to have been relied upon by the Customer or anyone claiming through the Customer.
8. Customer Material etc:
The Customer acknowledges and agrees that it is the Customer’s sole responsibility to ensure that materials, designs, drawings, specifications, procedures etc which are provided by or on behalf of the Customer, to be used by AEM in meeting any orders, are correct and appropriate in every particular and will be relied upon by AEM.
9. Placement of Orders:
The Customer agrees that –
a. it is solely responsible for the completeness and accuracy of all information provided in its orders;
b. no order received by AEM may be deferred unless the Customer agrees to indemnify AEM against all costs as a result of such deferral and unless such deferral is agreed to in writing by AEM;
c. in the event of any dispute arising concerning any order (and including any question of identity or authority or any telephone, facsimile or electronic order) that the internal records of AEM will be conclusive evidence of what was ordered in all respects;
d. each order it places shall be and be deemed to be a representation by it, made at the time, that it is solvent and able to pay all of its debts as and when they fall due;
e. failure to pay AEM in accordance with these Terms shall be and be deemed to be conclusive evidence that the Customer had no reasonable grounds for making the representation referred to in Sub-clause d. hereof and that the representations were unconscionable, misleading and deceptive;
f. when any order is placed, the Customer shall inform AEM of any material facts which would or might reasonably affect the commercial decision by AEM to accept the order or grant credit in relation thereto and any failure to do so by or on behalf of the Customer shall create and be deemed to create an inequality of bargaining position, shall constitute and be deemed to constitute the taking of an unfair advantage over AEM and to be unconscionable, misleading and deceptive.
10. Purchase Price:
a. All sales are made by AEM at its ruling price at the time of delivery.
b. Government imposts (including any GST or equivalent) will be to the Customer’s account.
c. AEM‘s price lists exclude government imposts (including any GST or equivalent) unless expressly noted thereon.
d. The Customer will provide to AEM its tax file number and any information required by any GST or equivalent law prior to seeking any tax exemption.
11. Additional costs:
The Customer acknowledges and agrees that it will be responsible for the following additional costs unless the contrary is expressly stated in AEM’s quotation:
a. altering items to non-standard package sizes;
b. drums, cases, packages and reels;
c. special packaging and tooling requirements;
d. insurance for goods in transit to or from AEM’s premises;
e. AEM’s service charge where the invoice value is less than AEM’s ruling minimum invoice value;
f. all costs incurred by AEM due to deferral of delivery at the request of the Customer beyond the agreed delivery date.
The Customer acknowledges and agrees that –
a. AEM accepts no responsibility or duty for delivery, but may elect to arrange delivery at its discretion and without any liability and at the Customer’s cost and responsibility in all things;
b. AEM reserves the right to charge for any delivery;
c. the Customer shall be deemed to have accepted delivery and risk for the goods immediately AEM notifies the Customer that any goods are ready for collection or they are delivered to a carrier or to the Customer’s business premises or site whether attended or not, whichever event shall have occurred first;
d. a certificate purporting to be signed by an officer of AEM confirming delivery shall be conclusive evidence of delivery as shall any signed delivery docket;
e. AEM will not be liable for delay or failure or inability to deliver any goods or perform any services;
f. Once the Customer is notified goods are ready for collection or delivery, the Customer agrees to pay all costs incurred by AEM in holding those goods for the Customer.
13. Return of Goods:
a. AEM may accept the return of goods which were incorrectly delivered; or damaged prior to risk passing; or defective and the manufacturer’s warranty covers the defect and the manufacturer agrees to replace or resupply the goods.
b. If goods are returned to AEM prior to AEM accepting responsibility for such incorrect delivery or damage or defect, AEM will only accept such return as agent of the Customer and without AEM accepting any liability itself or on behalf of the manufacturer.
c. Claims for such incorrect delivery or damage or defect must be made to AEM within three business days of delivery.
d. Where any returned goods are returned to the manufacturer or supplier they remain at the Customer’s risk pending acceptance of liability by the manufacturer.
e. The Customer is to pay the freight and all other costs of returning the goods (to AEM and, where applicable, to the manufacturer or supplier) unless the manufacturer’s warranty covers such costs.
f. Except where returned goods are defective, AEM will only accept their return if –
(1) the Customer has made prior arrangements with AEM for the return of the goods;
(2) the goods were incorrectly supplied or damaged prior to risk passing;
(3) the goods are not obsolete or incomplete or damaged or otherwise imperfect;
(4) the Customer provides the relevant purchase invoice numbers;
(5) the Customer pays the return freight charges;
(6) the Customer carries the risk of loss or damage in transit during return to AEM (and, where applicable, to the manufacturer or supplier); and
(7) the goods are in the original packaging or as supplied and are in “as new” condition.
g. Any credit or refund granted by AEM for returned goods may incur a 20% re-stocking fee.
14. Goods and Services
a. AEM disclaims any responsibility or liability whatsoever relating to any goods or services –
(1) made or performed to designs, drawings and/or specifications and/or procedures etc or with materials which are provided or approved (whether wholly or partly) by or on behalf of the Customer;
(2) utilised, stored, handled or maintained incorrectly or inappropriately;
b. The Customer agrees to check all goods and services for compliance with all relevant applicable standards and regulatory bodies before use, on-sale or application and to use or apply same in accordance with all applicable standards, regulations and guidelines and with all manufacturer’s and AEM‘s recommendations and directions as well as with good practice.
15. Other Terms and Conditions:
No terms and conditions sought to be imposed by the Customer upon AEM shall apply.
16. Recovery Costs:
The Customer will pay to AEM the costs and expenses incurred by it or its solicitors, legal advisers, mercantile agents and other parties acting on AEM‘s behalf in respect of anything instituted or being considered against the Customer whether for debt, possession of any goods or otherwise and all such costs and expenses may be recovered by AEM as a debt due by the Customer.
For the purpose of giving effect to the Customer’s obligations in these Terms, the Customer hereby irrevocably appoints the Credit Manager of AEM from time to time as its attorney in all things.
An error or misprint in computation, typing or otherwise in any of AEM’s documents including a catalogue, a price list, a delivery docket, an invoice, a statement or a credit note shall be subject to correction by AEM by means of re-issue of the document concerned or by the issue of an adjusting document.
Any variation or cancellation of these Terms or any order must be in writing and signed by duly authorised representatives of AEM and the Customer.
a. Upon any default or breach hereof by the Customer, AEM may (inter alia) retain all monies paid and cease further deliveries and services and recover from the Customer all loss of profits arising and at its discretion take immediate possession of any product not paid for, without prejudice to any other of its rights and without being liable in any way to any party.
b. The customer agrees not to commence or continue or permit to be commenced or continued through it any suit or action against AEM whilst the customer is in default under any of these Terms or in any of its dealings with AEM.
Any part of these Terms being a whole or part of a clause, shall be capable of severance without affecting any other part of these Terms.
22. Customer Restructure:
The Customer will notify AEM in writing of any change in its structure or management including any change in director, shareholder or management or change in partnership or trusteeship within 7 days of the date of any such change.
The Customer agrees that all contracts made with AEM shall be deemed to be made in the State of South Australia and agrees to submit to the jurisdiction of the appropriate Courts of that State.
24. Credit Limit:
If AEM grants any credit facility or nominates any credit limit, this is an indication only of its intention at the time. AEM can vary or withdraw any credit facility at any time at its discretion and without any liability to the Customer or any other party.
In the event that AEM elects not to exercise any of its rights arising as a result of any breach of these Terms, such election shall not constitute a waiver of any rights of AEM relating to any subsequent or other breach.
The Customer agrees that it will be deemed to have notice of any change to these Terms, immediately they are adopted by AEM and whether or not the Customer has actual notice thereof. The Customer shall be bound by any terms and conditions of sale adopted by AEM immediately they are so adopted and notwithstanding any other purported or pre-existing terms and conditions of AEM.
27. Release and Indemnity:
To the extent permitted by law the Customer –
a. releases AEM from all actions claims demands losses liabilities damages and expenses arising from or related in any way to any contract or transaction between AEM and the Customer or anything arising therefrom, or arising as a result of or subsequent to any breach of these Terms; and
b. indemnifies AEM against all such actions claims demands losses liabilities damages and expenses.
28. Security For Payment:
a. The Customer agrees on request to charge in favour of AEM:
(1) by way of a fixed charge all its books of account, financial records, goodwill, documents of title and current and later acquired real property and intellectual property; and
(2) by way of floating charge the whole of the Customer’s other undertaking, property and assets, with payment of all monies owed to AEM.
b. AEM will have a general lien over all the Customer’s chattels in AEM’s possession from time to time and the Customer agrees that the lien will secure –
(1) payment of all sums invoiced by AEM to the Customer but unpaid by the Customer; and
(2) payment of all interest under Clause 3 of these Terms and Conditions; and
(3) payment of all costs described in Clause 11 of these Terms and Conditions; and
(4) payment of all delivery and holding costs described in Clause 12 of these Terms and Conditions; and
(5) payment of all recovery costs described in Clause 16 of these Terms and Conditions.
29. Forward Orders:
If the Customer places a forward order the Customer agrees –
a. to pay for so much of any order as is from time to time invoiced by AEM;
b. that no delay or failure to fulfil any part of any order shall entitle the Customer to cancel or vary any order or delay or reduce any payment.
30. Force Majeure:
AEM will not be in default or in breach of any contract with the Customer by or as a result of Force Majeure. Force Majeure means anything beyond the reasonable control of AEM and includes any strike or lock-out.
a. If the Customer commits or is involved in any act of insolvency, or if it takes the benefit of any law relating to insolvency, such event will be a default under these Terms.
b. An act of insolvency includes the commencement of any bankruptcy proceedings, liquidation proceedings, receivership, administration or the like.
a. All re-usable packaging remains the property of AEM and the Customer is responsible for damage to and loss of such packaging. The Customer must retain all such packaging for collection by AEM or the manufacturer.
b. The Customer agrees that it is solely responsible for ensuring that all product used by it for packaging etc. complies fully with all relevant laws, regulations and standards, etc applicable to that use.
The Customer agrees that all tooling, material, industrial or intellectual property employed in the production and supply of any goods or provision of any services will be and remain the property of AEM notwithstanding any contribution by the Customer thereto.
34. Customer materials:
The Customer agrees that any of its materials or property used by AEM in the production and supply of any goods or the provision of any services will be at the Customer’s risk in all things and be of merchantable quality and fit for the purpose.
35. Variations in Quantity:
The Customer agrees to accept a permissible variation of quantity provided the variation does not exceed plus or minus 10 per cent of the quantity ordered.
36. Industrial and Intellectual Property:
The Customer warrants and agrees that at all material times it will have all necessary industrial and intellectual property rights in any goods or services it requests of AEM.
37. Abnormal payments:
The Customer agrees to pay an administration fee of 2 per cent (calculated on the amount paid) on any payment which is made other than as provided in Clause 2 hereof, which fee is agreed as the liquidated cost of processing such abnormal payments.
The Customer agrees to return all pallets provided to it by AEM with any goods or otherwise and to indemnify AEM for the full replacement cost of any pallet not returned to AEM within 30 days.