1.1 “Aldridge” shall mean Aldridge Corporation Pty Ltd its successors and assigns or any person acting on behalf of and with the authority of Aldridge Corporation Pty Ltd.
1.2 “Customer” shall mean the Customer (or any person acting on behalf of and with the authority of the Customer)as described on any quotation, work authorisation or other form as provided by Aldridge to the Customer.
1.3 “Guarantor” means that person (or persons), or entity, who agrees to be liable for the debts of the Customer on a principal debtor basis.
1.4 “Goods” shall mean Goods supplied by Aldridge to the Customer (and where the context so permits shall include any supply of Services as hereinafter defined) and are as described on the invoices, quotation, work authorisation or any other forms as provided by Aldridge to the Customer.
1.5 “Services” shall mean all Services supplied by Aldridge to the Customer and includes any advice or recommendations (and where the context so permits shall include any supply of Goods as defined above).
1.6 “Price” shall mean the price payable for the Goods as agreed between Aldridge and the Customer in accordance with clause 4 of this contract.
2.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the TPA or the FTA in each of the States and Territories of Australia, except to the extent permitted by those Acts where applicable.
3.1 Any instructions received by Aldridge from the Customer for the supply of Goods and/or the Customer’s acceptance of Goods supplied by Aldridge shall constitute acceptance of the terms and conditions contained herein.
3.2 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all payments of the Price.
3.3 Upon acceptance of these terms and conditions by the Customer the terms and conditions are binding and can only be amended with the written consent of Aldridge.
3.4 The Customer shall give Aldridge not less than fourteen (14) days prior written notice of any proposed change of ownership of the Customer or any change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to, changes in the Customer’s address, facsimile number, or business practice). The Customer shall be liable for any loss incurred by Aldridge as a result of the Customer’s failure to comply with this clause.
3.5 Goods are supplied by Aldridge only on the terms and conditions of trade herein to the exclusion of anything to the contrary in the terms of the Customer’s order notwithstanding that any such order is placed on terms that purport to override these terms and conditions of trade.
4.1 At Aldridge’s sole discretion the Price shall be either:
(a) as indicated on invoices provided by Aldridge to the Customer in respect of Goods supplied; or
(b) Aldridge’s current price at the date of delivery of the Goods according to Aldridge’s current Price list; or
(c) Aldridge’s quoted Price (subject to clause 4.2) which shall be binding upon Aldridge provided that the Customer shall accept Aldridge’s quotation in writing within thirty (30) days.
4.2 Aldridge reserves the right to change the Price in the event of a variation to Aldridge’s quotation.
4.3 At Aldridge’s sole discretion a deposit may be required.
4.4 At Aldridge’s sole discretion:
(a) payment shall be due on delivery of the Goods; or
(b) payment for approved Customers shall be made by instalments in accordance with Aldridge’s payment schedule; or
(c) payment for approved Customers shall be due fifteen (15) days following the end of the month in which a statement is posted to the Customer’s address or address for notices.
4.5 Time for payment for the Goods shall be of the essence and will be stated on the invoice or any other forms. If no time is stated then payment shall be due seven (7) days following the date of the invoice.
4.6 Payment will be made by cash, or by cheque, or by bank cheque, or by credit card (plus a surcharge of up to (1.03%) of the Price), or by direct credit, or by any other method as agreed to between the Customer and Aldridge.
4.7 GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.
5.1 At Aldridge’s sole discretion delivery of the Goods shall take place when:
(a) the Customer takes possession of the Goods at Aldridge’s address; or
(b) the Customer takes possession of the Goods at the Customer’s nominated address (in the event that the Goods are delivered by Aldridge or Aldridge’s nominated carrier); or
(c) the Customer’s nominated carrier takes possession of the Goods in which event the carrier shall be deemed to be the Customer’s agent.
5.2 At Aldridge’s sole discretion the costs of delivery are:
(a) in addition to the Price; or
(b) for the Customer’s account.
5.3 The Customer shall make all arrangements necessary to take delivery 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 Aldridge shall be entitled to charge a reasonable fee for redelivery.
5.4 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.
5.5 Aldridge may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions in these terms and conditions.
5.6 The failure of Aldridge to deliver shall not entitle either party to treat this contract as repudiated.
5.7 Aldridge shall not be liable for any loss or damage whatever due to failure by Aldridge to deliver the Goods (or any of them) promptly or at all, where due to circumstances beyond the control of Aldridge.
6.1 If Aldridge retains ownership of the Goods nonetheless, all risk for the Goods passes to the Customer on delivery.
6.2 If any of the Goods are damaged or destroyed following delivery but prior to ownership passing to the Customer, Aldridge is entitled to receive all insurance proceeds payable for the Goods. The production of these terms and conditions by Aldridge is sufficient evidence of Aldridge’s rights to receive the insurance proceeds without the need for any person dealing with Aldridge to make further enquiries.
6.3 Where the Customer expressly requests Aldridge to leave Goods out for collection by Aldridge or to be delivered to the Customer’s nominated address and no one is going to be available to accept the goods then such goods will be left at the Customer’s sole risk, then Aldridge will not accept any responsibility for any damage to, or the theft of the Goods. It shall be the Customer’s responsibility to ensure such Goods are insured adequately or at all.
7.1 Aldridge and Customer agree that ownership of the Goods shall not pass until:
(a) the Customer has paid Aldridge all amounts owing for the particular Goods; and
(b) the Customer has met all other obligations due by the Customer to Aldridge in respect of all contracts between Aldridge and the Customer.
7.2 Receipt by Aldridge 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 and until then Aldridge’s ownership or rights in respect of the Goods shall continue.
7.3 It is further agreed that:
(a) where practicable the Goods shall be kept separate and identifiable until Aldridge shall have received payment and all other obligations of the Customer are met; and
(b) until such time as ownership of the Goods shall pass from Aldridge to the Customer Aldridge may give notice in writing to the Customer to return the Goods or any of them to Aldridge. Upon such notice the rights of the Customer to obtain ownership or any other interest in the Goods shall cease; and
(c) Aldridge shall have the right of stopping the Goods in transit whether or not delivery has been made; and
(d) if the Customer fails to return the Goods to Aldridge then Aldridge or Aldridge’s agent may enter upon and into land and premises owned, occupied or used by the Customer, or any premises as the invitee of the Customer, where the Goods are situated and take possession of the Goods; and
(e) the Customer is only a bailee of the Goods and until such time as Aldridge has received payment in full for the Goods then the Customer shall hold any proceeds from the sale or disposal of the Goods, up to and including the amount the Customer owes to Aldridge for the Goods, on trust for Aldridge; and
(f) the Customer shall not deal with the money of Aldridge in any way which may be adverse to Aldridge; and
(g) the Customer shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of Aldridge; and
(h) Aldridge can issue proceedings to recover the Price of the Goods sold notwithstanding that ownership of the Goods may not have passed to the Customer; and
(i) until such time that ownership in the Goods passes to the Customer, if the Goods are converted into other products, the parties agree that Aldridge will be the owner of the end products.
8.1 The Customer shall inspect the Goods on delivery and shall within seven (7) days of delivery (time being of the essence) notify Aldridge of any alleged defect, shortage in quantity, damage or failure to comply with the description or quote. The Customer shall afford Aldridge an opportunity to inspect the Goods within a reasonable time following delivery if the Customer believes the Goods are defective in any way. If the Customer shall fail to comply with these provisions the Goods shall be presumed to be free from any defect or damage. For defective Goods, which Aldridge has agreed in writing that the Customer is entitled to reject, Aldridge’s liability is limited to either (at Aldridge’s discretion) replacing the Goods or repairing the Goods except where the Customer has acquired Goods as a consumer within the meaning of the Trade Practices Act 1974 (CWlth) or the Fair Trading Acts of the relevant state or territories of Australia, and is therefore also entitled to, at the consumer’s discretion either a refund of the purchase price of the Goods, or repair of the Goods, or replacement of the Goods.
9.1 Returns will only be accepted provided that:
(a) the Customer has complied with the provisions of clause 8.1; and
(b) Aldridge has agreed in writing to accept the return of the Goods; and
(c) the Goods are returned at the Customer’s cost within seven (7) days of the delivery date; and
(d) Aldridge will not be liable for Goods which have not been stored or used in a proper manner; and
(e) the Goods are returned in the condition in which they were delivered and with all packaging material, brochures and instruction material in as new condition as is reasonably possible in the circumstances.
9.2 Aldridge may (in its discretion) accept the return of Goods for credit but this may incur a handling fee of fifteen percent (15%) of the value of the returned Goods plus any freight.
9.3 Returned goods may (at Aldridge’s sole discretion), incur restocking and handling fees.
10.1 For Goods not manufactured by Aldridge, the warranty shall be the current warranty provided by the manufacturer of the Goods. Aldridge shall not be bound by nor be responsible for any term, condition, representation or warranty other than that which is given by the manufacturer of the Goods.
11.1 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 one half percent (2.5%) per calendar month (and at Aldridge’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
11.2 In the event that the Customer’s payment is dishonoured for any reason the Customer shall be liable for any dishonour fees incurred by Aldridge.
11.3 If the Customer defaults in payment of any invoice when due, the Customer shall indemnify Aldridge from and against all costs and disbursements incurred by Aldridge in pursuing the debt including legal costs on a solicitor and own client basis and Aldridge’s collection agency costs.
11.4 Without prejudice to any other remedies Aldridge may have, if at any time the Customer is in breach of any obligation (including those relating to payment), Aldridge may suspend or terminate the supply of Goods to the Customer and any of its other obligations under the terms and conditions. Aldridge will not be liable to the Customer for any loss or damage the Customer suffers because Aldridge has exercised its rights under this clause.
11.5 If any account remains overdue after thirty (30) days then an amount of the greater of twenty dollars ($20.00) or ten percent (10.00%) of the amount overdue (up to a maximum of two hundred dollars ($200.00)) shall be levied for administration fees which sum shall become immediately due and payable.
11.6 Without prejudice to Aldridge’s other remedies at law Aldridge shall be entitled to cancel all or any part of any order of the Customer which remains unfulfilled and all amounts owing to Aldridge shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Aldridge becomes overdue, or in Aldridge’s opinion the Customer will be unable to meet its payments as they fall due; or
(b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer.
12. Security And Charge
12.1 Despite anything to the contrary contained herein or any other rights which Aldridge may have howsoever:
(a) where the Customer and/or the Guarantor (if any) is the owner of land, realty or any other asset capable of being charged, both the Customer and/or the Guarantor agree to mortgage and/or charge all of their joint and/or several interest in the said land, realty or any other asset to Aldridge or Aldridge’s nominee to secure all amounts and other monetary obligations payable under these terms and conditions. The Customer and/or the Guarantor acknowledge and agree that Aldridge (or Aldridge’s nominee) shall be entitled to lodge where appropriate a caveat, which caveat shall be withdrawn once all payments and other monetary obligations payable hereunder have been met.
(b) should Aldridge elect to proceed in any manner in accordance with this clause and/or its sub-clauses, the Customer and/or Guarantor shall indemnify Aldridge from and against all Aldridge’s costs and disbursements including legal costs on a solicitor and own client basis.
(c) the Customer and/or the Guarantor (if any) agree to irrevocably nominate constitute and appoint Aldridge or Aldridge’s nominee as the Customer’s and/or Guarantor’s true and lawful attorney to perform all necessary acts to give effect to the provisions of this clause 12.1.
13.1 Aldridge may cancel any contract to which these terms and conditions apply or cancel delivery of Goods at any time before the Goods are delivered by giving written notice to the Customer. On giving such notice Aldridge shall repay to the Customer any sums paid in respect of the Price. Aldridge shall not be liable for any loss or damage whatever arising from such cancellation.
13.2 In the event that the Customer cancels delivery of Goods the Customer shall be liable for any loss incurred by Aldridge (including, but not limited to, any loss of profits) up to the time of cancellation.
14.1 The Customer and/or the Guarantor/s agree for Aldridge to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by Aldridge.
14.2 The Customer and/or the Guarantor/s agree that Aldridge may exchange information about the Customer and the Guarantor/s with those credit providers either named as trade referees by the Customer or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Customer; and/or
(b) to notify other credit providers of a default by the Customer; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and/or
(d) to assess the credit worthiness of Customer and/or Guarantor/s.
14.3 The Customer consents to Aldridge being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).
14.4 The Customer agrees that personal credit information provided may be used and retained by Aldridge for the following purposes and for other purposes as shall be agreed between the Customer and Aldridge or required by law from time to time:
(a) provision of Goods; and/or
(b) marketing of Goods by Aldridge, its agents or distributors in relation to the Goods; and/or
(c) analysing, verifying and/or checking the Customer’s credit, payment and/or status in relation to provision of Goods; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Customer; and/or
(e) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Goods.
14.5 Aldridge may give information about the Customer to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Customer; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
15.1 At Aldridge’s sole discretion, if there are any disputes or claims for unpaid Goods and/or Services then the provisions of the Building and Construction Industry Security of Payments Act 1999 may apply.
15.2 Nothing in this agreement is intended to have the affect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payments Act 1999 of New South Wales, except to the extent permitted by the Act where applicable.
16.1 If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
16.2 These terms and conditions and any contract to which they apply shall be governed by the laws of New South Wales and are subject to the jurisdiction of the courts of New South Wales.
16.3 Aldridge shall be under no liability whatever to the Customer for any indirect loss and/or expense (including loss of profit) suffered by the Customer arising out of a breach by Aldridge of these terms and conditions.
16.4 In the event of any breach of this contract by Aldridge the remedies of the Customer shall be limited to damages which under no circumstances shall exceed the Price of the Goods.
16.5 The Customer shall not be entitled to set off against or deduct from the Price any sums owed or claimed to be owed to the Customer by Aldridge.
16.6 The Customer agrees that Aldridge may review these terms and conditions at any time. If, following any such review, there is to be any change to these terms and conditions, then that change will take effect from the date on which Aldridge notifies the Customer of such change.
16.7 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.
16.8 The failure by Aldridge to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect Aldridge’s right to subsequently enforce that provision.