These are the terms and conditions of sale of goods and materials supplied by Prochem Pipeline Products Pty Ltd ACN 000 337 824 or any of its related bodies corporate as defined in the Corporations Act 2001 (Prochem) to any person, firm or company placing an order with the Company (Customer).
(a) Orders are subject to approval and acceptance by Prochem. Subject to law, Prochem may in its absolute discretion, refuse to supply goods to the Customer without giving any reason for its decision. The Customer acknowledges that Prochem is not able to guarantee supply or repeat orders of the same design, quality or price.
(b) The Customer in selecting goods for use in any order agrees, undertakes and acknowledges that it will not rely on Prochem’s skill or judgement or on that of any person by whom negotiations are conducted. Prochem will not accept any returns or claims if the Customer determines that the goods or any component of the goods are not suitable for their intended purpose.
(c) Any changes to an order must be made in writing.
(a) The Customer is responsible for the cost of delivery of goods and the Customer must pay the delivery charges stipulated by Prochem from time to time. Prochem may, in its absolute discretion, determine the method of transport.
(b) Prochem will endeavour to deliver the goods on the date agreed by the two parties and will use its reasonable endeavours to notify the Customer of any likely delays in advance, but under no circumstances will Prochem be liable in any way whatsoever for any loss, damage or expense suffered or incurred by the Customer arising out of or in connection with the non-availability, delay in delivery, non-delivery, or non-supply of the goods.
(c) Without limiting the previous clause, Prochem will not be liable for any delays in delivery due to causes beyond its reasonable control (including but not limited to the direct or indirect result of acts of God, acts of public enemy, war, riot, accidents, fires, explosions, earthquakes, floods and elements, strikes, labour or labour disputes, shortages of suitable products or materials, labour or transportation).
(d) Prochem reserves the right to cancel a Customer’s order where for any reason Prochem is out of stock, without liability. In these circumstances the customer will be notified by Prochem.
(e) Any measures requested by the Customer to protect the goods in storage or transit shall be at the Customer’s expense.
(a) Payment in full must be made by the Customer for all goods supplied to the Customer within 30 days after the end of the month in which the goods are invoiced.
(b) If the Customer fails to pay for goods supplied by the due date Prochem may recover from the Customer the price of those goods as a liquidated sum.
(c) No negotiable instrument accepted or negotiated by Prochem will be deemed payment until it has been honoured. The Customer must reimburse Prochem for any charges made by Prochem’s bank for any negotiable instrument not met on presentation.
(d) Prochem may allocate a credit limit to the Customer’s account at any time. This limit will be advised in writing to the Customer and may be reduced by Prochem at any time. Any credit provided in excess of the credit limit shall be repayable on demand.
(e) Prochem, at its discretion, may suspend supplies of goods to Customers who are in default or have failed to make payment in accordance with clause 3(a) until full payment of all amounts due have been received.
(f) Prochem may claim from the Customer all costs, expenses and charges incurred relating to any action taken by Prochem to recover goods or monies due from the Customer, including but not limited to, any collection agent costs or legal costs.
4. Cancellations and Returns
(a) Orders cancelled by the Customer will only be accepted with the prior written approval of Prochem. Prochem may invoice the Customer for any costs incurred by Prochem in relation to the order and its cancellation, including the cost of any materials, labour or transport.
(b) Prochem, in its absolute discretion, may accept returned goods from the Customer. Goods returned will be subject to a re-stocking charge equivalent to 20% of the invoiced value of the returned goods. A $55 (GST inclusive) minimum charge applies to re-stocking charges.
(c) Where goods have been returned as a result of a Prochem error – no restocking fee will apply.
(d) Goods sold as non-standard products i.e. bought in or manufactured specially for customers will not be accepted for return.
(e) No Credit Notes will be issued for Returns having a value of under $55 ($50+GST). This relates to customer error per customer purchase order.
5. Notification of claims
(a) All and any claims in respect of goods must be notified in writing to Prochem within seven (7) days of delivery of the goods to the address specified in the Customer’s order and in this respect, time will be of the essence. If no claim is received within this time, the goods supplied will be deemed to have been a merchantable and faultless quality and condition at the time of receipt.
(b) No returns will be accepted unless authorised by Prochem, in its absolute discretion, in advance. Goods returned must be in “as sold” or “saleable” condition and therefore not have been used.
6. Limitation of liability
(a) Except as expressly provided to the contrary in these terms and to the maximum extent permitted by law, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise, relating in any way to the supply of the goods under these terms are excluded.
(b) Without limiting the generality of the preceding, Prochem will not be under any liability to the Customer in respect of any:
( i) consequential loss or damage; or
(ii) loss of profits, however caused.
(c) To the extent that the warranties implied under the Competition and Consumer Act 2010 (Cth) apply to supplying the goods, Prochem’s liability for loss arising as a result is limited, to the maximum extent permitted by law, at Prochem’s option to either the value of the goods in the particular order or the obligation to replace any faulty or defective goods.
7. Risk and Retention Title
(a) The risk of damage to or loss of goods supplied by Prochem passes on delivery to the Customer.
(b) Title to goods supplied shall remain vested in Prochem and shall not pass to the customer until the purchase price for the goods has been paid in full and received by Prochem.
(c) Until payment in full of the purchase price, the Customer must take custody of the goods and retain them as the fiduciary agent and bailee of Prochem. The Customer may resell but only as a fiduciary agent of Prochem.
(d) Any right to bind Prochem to any liability to any third party by contract or otherwise is expressly negated.
(e) Any resale of the goods prior to payment of the full purchase price is to be at arms length and on market terms and pending resale or utilisation in any manufacturing process, the Customer must keep the goods separate from its own, properly stored, protected and insured.
(f) The Customer will receive all proceeds whether tangible or intangible, direct or indirect of any dealing with goods in trust for Prochem and will keep such proceeds in a separate account until payment in full of the purchase price has been discharged. Prochem may appropriate payments to such goods and accounts as it thinks fit notwithstanding any appropriation by the Customer to the contrary.
(g) In the event that the Customer uses the goods in some manufacturing process of its own or some third party, then the Customer must hold such part of the proceeds of such manufacturing process as relates to the goods in trust for Prochem. Such part will be deemed to equal in dollar terms the amount owing by the Customer to Prochem at the time of the receipt of such proceeds.
Prochem will pass on to the Customer any warranties it receives in respect of goods supplied to the Customer.
9. Termination of account
Prochem has the right to terminate a credit account at its discretion.
10. Entire agreement
The Customer agrees to these terms of trade irrespective of anything stated on the Customer’s order, or in any other subsequent document, unless Prochem otherwise expressly agrees in writing with reference to this document.
11. Governing law and jurisdiction
These terms of trade will be governed by and construed according to the laws in force in the State of New South Wales and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the Federal Court of Australia (Sydney Registry) and the courts of New South Wales.