1. Any quotation is open for acceptance for a period of thirty (30) days only. If the recipient of the quote or the party being supplied the goods or services (hereinafter referred to as the “Customer”) purports to accept the quotation after this date Tempwest Pty Ltd ACN 639 734 991 (“the Company”) may proceed or decline at its discretion. The provision of a purchase order by the Customer to the Company will constitute acceptance by the Customer of these conditions ( “the agreement”). Any person who signs the Company’s quote is warranting that they have the authority to accept the quote for and on behalf of the Customer.
  2. The Customer agrees to pay, without any deduction or set off in law or in equity whatsoever, the price charged by the Company for the supply of goods and services within 30 days of the date of the invoice rendered by the Company or within such other period of time as may be notified to the Customer from time to time by the Company.
  3. Any variation, waiver or cancellation of the Customer’s order shall be of no effect unless accepted in writing by the Company and where the Company accepts the variation, waiver or cancellation, the Company may levy a handling charge of up to 15% of the price charged by the Company to the Customer.
  4. It is the Customer’s responsibility to check the quantities of goods delivered. No claim for shortages or missed deliveries will be recognised unless notified in writing to the Company by the Customer within 48 hours of delivery. If no signature is obtained from the Customer upon delivery of the goods, then no claim will be recognised by the Company unless the Company’s employee who delivered the goods is of the belief that such shortage or misdelivery occurred. The Customer agrees that the Company shall be able to deliver the goods whether or not a representative of the Customer is present at the time of delivery and that should there be no representative of the Customer present at the time of delivery, the quantities of goods delivered are those listed on the Company’s dockets.
  5. The Company shall be entitled to charge interest on all outstanding monies due by the Customer at the rate of 12.0% per annum.
  6. Any quotations of delivery times by the Company are made in good faith but as estimates and not commitments. The Company shall not be bound by any such estimate and shall have no liability to the Customer for any losses whatsoever or howsoever arising by reason of any delays in delivery howsoever caused. Clerical errors or omissions by the Company, whether in computation or otherwise in any quotation, acknowledgment or invoice, shall be subject to correction.
  7. All legal costs (on a full indemnity basis), charges, duties and other expenses incurred by the Company in respect of the agreement or the securities or other documentation required hereunder, or incurred as a result of the Customer failing to perform its covenants and obligations contained herein, shall be paid by the Customer to the Company. The expenses include, but are not limited to, the commission payable to a mercantile agent or a debt collector to pursue or recover outstanding monies pursuant to the agreement and the liability to pay this commission arises at the time the recovery is placed in the hands of the debt collector.
  8. Property in any goods supplied by the Company to the Customer will not pass to the Customer until such time as the goods are paid for in full. The Customer agrees that goods supplied by the Company to, or at the request of, the Customer shall be at the Customer’s risk (including insurance responsibility) immediately on delivery to the Customer or into the Customer’s custody (whichever is the sooner). The Customer further agrees:
    1. to store and maintain the goods in such a manner as to show clearly that they are the property of the Company and the Customer shall be at liberty to sell the goods, in the ordinary course of business, but only as a fiduciary agent for the Company and shall account to the Company for all proceeds from any sale;
    2. under the agreement the Company may enter upon the Customer’s premises or elsewhere without notice and with force if reasonably necessary to repossess the goods without being liable for trespass. The Customer shall be liable for and hereby indemnifies the Company against any loss, expense, cost or damage whatsoever that may be incurred as a result of the Company taking possession of the goods including but not limited to any damage caused to the goods, any obstruction or any building, ceiling or wall on or around the goods. The Customer agrees to pay the Company’s costs of the repossession and transportation of the repossessed goods to the Company’s premises;
    3. that in the event the Customer uses the goods in some manufacturing or construction process of its own or some third party and so as to meet payment due to the Company under the agreement, the Customer shall hold such part of the proceeds of such manufacturing or construction process as relates to the goods in trust for the Company. Such part shall be deemed to equal in dollar terms the amount owed by the Customer to the Company at the time of the receipt of such proceeds;
    4. to better secure any outstanding payment due to the Company under the agreement, the Customer appoints the Company as its attorney to collect the goods and/or to collect payment from any third party for the goods and/or services and/or to collect payment from any third party who owes monies to the Customer and to apply that payment against the Customer’s account with the Company. If payment is collected by the Company from a third party, then the Customer irrevocably agrees with the Company and with the third party that in providing this attorney the third party’s liability for payment to the Customer in relation to the outstanding monies is reduced by the sum of the payments collected by the Company from the third party;
    5. if the Customer defaults in the due and punctual observance of all or any of its obligations or covenants under the agreement, all outstanding monies due by the Customer to the Company shall become immediately due and payable.
  9. For the purpose of this clause and other relevant clauses in these terms “PPSA” means the Personal Property Securities Act 2009 and the expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA
    1. The retention of title arrangement in clause 8 constitutes the grant of a purchase money security interest by the Customer in favour of the Company in respect of all present and after acquired goods supplied to the Customer by the Company
    2. If requested by the Company the Customer must immediately sign any documents, provide all necessary information and do anything else required by the Company to ensure that the Company’s purchase money security interest or any other security interest created in favour of the Company is a perfected security interest.
    3. The Customer must not enter into any security agreement that permits any other person to have or to register any security interest in respect of the goods supplied or any proceeds from the sale of the goods or grant any other security interest in favour of any party until the Company has perfected its purchase money security interest and other security interests created under this agreement.
    4. The Customer must not do or permit anything to be done that may result in the purchase money security interest or any other security interest granted to the Company ranking in priority behind any other security interest.
    5. To the fullest extent permitted by the PPSA the Customer agrees to contract out of the application of the provisions listed in sections 115(1) and 115(7) and the sections listed therein shall not apply.
    6. The Customer hereby waives any rights the Customer may otherwise have to:
      1. receive any notices or statements the Customer would otherwise be entitled to receive under sections of the PPSA including for the avoidance of any doubt the sections referred to in sections 115(1) and 115(7) of the PPSA;
      2. apply to a Court for an order concerning the removal of an accession under section 97 of the PPSA;
      3. object to a proposal of the Company to dispose or retain any collateral under sections 130 and 135 of the PPSA; and
      4. receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest created under this document.
  10. If the Customer (a) defaults in the due and punctual observance of all or any of its obligations or covenants under the agreement; or (b) being a person, dies or commits an act of bankruptcy; or (c) being a company, takes or shall have taken against it any action for its winding up, placement under official management, administration or receivership, then the Company without prejudice to any right or remedies open to it may:
    1. treat as discharged all or any obligation arising from any agreement with the Customer;
    2. retain any security given or monies paid by the Customer or available though the enforcement of any guarantee, security or bond and apply this in reduction of any sum of money owed or owing by the Customer to the Company;
    3. enter upon the Customer’s premises without notice and with force if reasonably necessary to take possession of and remove any goods supplied by the Company to the Customer without being liable for trespass. The Customer shall be liable for and hereby indemnifies the Company against any loss, expense, cost or damage whatsoever that may be incurred as a result of the Company taking possession of the goods including but not limited to any damage caused to the goods, any obstruction or any building, ceiling or wall on or around the goods. The Customer agrees to pay the Company’s costs of the repossession and transportation of the repossessed goods to the Company’s premises;
    4. take such steps as it may deem necessary to mitigate the damages suffered including the putting to use or selling of any goods supplied under the agreement;
    5. the retention of title arrangement described in this clause constitutes the grant of a security interest by the Customer in favour of the Company in respect of all present and after acquired goods supplied to the Customer by the Company;
    6. the Customer must immediately, if requested by the Company, sign any documents, provide all necessary information and do anything else required by the Company to ensure that the Company’s security interest is a perfected security interest;
    7. the Customer will not enter into any security agreement that permits any other person to have or to register any security interest in respect of the goods or any proceeds from the sale of the goods until the Company has perfected its security interest
  11. The Customer agrees that a variation or waiver of a term or condition under the agreement is effective only if it is in writing and signed by the Company. Such waiver is effective only in the specific instance and for the specific purpose it was given.
  12. The Customer hereby in favour of the Company charges with the due and punctual payment and the due, punctual and complete performance of all its liabilities and obligations hereunder or on any account whatsoever to the Company all its legal and equitable interest of whatsoever nature held in any real property both present and future and the Customer hereby consents to the Company lodging a caveat or caveats noting its proprietary interest herein.
  13. The Customer grants a security interest in all of its present and after acquired property and in all of its present and future rights, title, estate and interest, whether legal and equitable, in relation to any personal property including any debts owed to the Customer, in favour of the Company to secure the performance of its liabilities and obligations hereunder or on any account whatsoever.
  14. The Customer warrants and agrees that where it is or was a trustee of any trust (the “Trust”):- (a) to produce a stamped copy of the Trust deed (with all amendments) if and when requested by the Company; (b) that it has full power and authority to execute, or continue with its obligations under, the agreement on behalf of the Trust as it is doing so in its individual capacity and in its several capacity as trustee; (c) that it shall be bound by the terms and conditions of the agreement in its individual capacity, or further or alternatively, in its several capacity as trustee; and (d) that the assets of the Trust shall be available to meet payment of its obligations to the Company.
  15. Notwithstanding anything contained herein the Customer acknowledges that no warranty or condition, express or implied, is given by the Company as to the condition of the goods or as to the suitability or fitness of the goods. Subject to the extent permitted by legislation any obligation of the Company under these terms and conditions shall be to use its endeavours to supply goods and/or services or to repair or replace (at the Company’s discretion) any goods which are found to be defective during any applicable warranty period (if any) and in no event shall the Company be liable for any other claims, losses or damages including but not limited to claims for faulty design, incorrect placement of the goods, negligent or misleading advice, damages arising from the loss or use of the goods or howsoever arising and any indirect, special or consequential damage or injury to any person, corporation or other entity. Where the law implies any term or warranty into these terms and conditions which cannot be excluded, then the liability of the Company for any breach of such term will be limited in the manner permitted under section 64A of the Australian Consumer Law to one of the following (as the Company may determine):
    1. in the case of goods supplied, to the replacement or repair of the goods or the supply of equivalent goods;
    2. in the case of services supplied, to the supply of the services again,
  16. In this document words in the singular includes the plural and visa versa, and reference to any gender includes the other genders.
  17. If any part of the agreement becomes void or unenforceable then that part shall be severed to the intent that all parts that are not void or unenforceable shall remain in full force and effect. The agreement shall be governed and construed in accordance with the laws of Western Australia and the parties submit to the jurisdiction of the Courts of Perth, Western Australia.
  18. Where there is any inconsistency between the terms and conditions of the agreement and any of the Customer’s terms and conditions, the terms and conditions of the agreement prevails.