Terms & Conditions of Trade

ROBAND  AUSTRALIA – TERMS & CONDITIONS OF TRADE

1. GENERAL

1.1 The Terms of Trade govern all orders placed by the Applicant and apply to and form part of any contract for the supply of Goods by the Company to the Applicant.

1.2 Submission of a purchase order by the Applicant shall constitute deemed acceptance of the Company’s Terms and Conditions and in the event of any inconsistency between the Applicant’s Order and the Company’s Terms and Conditions the latter shall prevail.

1.3 These Terms of Trade replace any previous terms and conditions of trade.

2. PRICES, QUOTATIONS AND ORDERS

2.1 No quotation given by the Company to the Applicant shall constitute an offer.

2.2 Orders must be placed by purchase order issued by the Applicant. Any order from the Applicant for the supply of Goods shall not be binding on the Company until accepted by the Company.

2.3 Orders must be accompanied by necessary ordering information as requested by the Company.

2.4 The prices for the Goods may be varied to the Company’s general prices in effect at the requested date of delivery of the Goods notwithstanding any prior orders or sales order acceptances in respect of the Goods.

2.5 Prices given in any quotation are applicable to that quotation only and will not apply in any other instance.

2.6 Quotations are valid for a period of 30 days from the date of issue by the Company, unless otherwise agreed in writing.

2.7 Unless expressly included, the prices given in any quotation, price list or any Invoice and the consideration for any supply under or in connection with these Terms of Trade, do not include GST.

2.8 Prices for the Goods will be as stated in each Invoice and are subject to change without notice.

3. TERMS OF SALE

These Terms of Trade apply to the Applicant and to the Company in respect of Goods ordered by the Applicant. Any terms and conditions set out in the Applicant’s order deviating from or inconsistent with these Terms of Trade will not bind the Company notwithstanding any statement by the Applicant in its order that its terms and conditions shall prevail over these Terms of Trade. No variation or modification or substitution of these Terms of Trade shall be binding on the Company unless specifically accepted by the Company in writing.

4. NO LIABILITY

The Company accepts no liability for Goods supplied by any third party who has not purchased the Goods directly from the Company.

5. DELIVERY

5.1 In relation to deliveries within the Company’s nominated metropolitan and approved rural distribution areas, for orders over $500.00 (exclusive of GST), the Company shall arrange for the Goods to be delivered F.I.S.

5.2 The Company is not liable for any claims for non fulfilment or late delivery of Goods or for any loss or damage (including consequential loss or damage) suffered by the Applicant arising from delay in delivery or a failure to deliver. The Applicant shall accept and pay for the Goods notwithstanding late delivery.

5.3.1 The Applicant shall upon placing its order advise the Company of the nominated delivery point and requested delivery date. The Company shall arrange for the Goods to be delivered and the Applicant shall arrange to accept delivery of the Goods during normal business hours from Monday to Friday. In the event that a tail lift is used for the delivery of the Goods, the Applicant shall bear the cost of such service.

 5.3.2 Where the Applicant places an order and requests the Company to direct deliver the goods to the Applicant’s customer/end user, the Applicant will be charged for freight including but not limited to “Futile Pick-up and Attempted Delivery” charges.

5.3.3 Where the Applicant places an order and requests the Company to direct deliver the goods to the Applicant’s customer/end user, the Applicant is responsible in providing the correct delivery details and any special instructions, and to ensure that the customer/end user is aware of the delivery, and capable of accepting the delivery. The Company is not responsible for goods that are direct delivered to the Applicant’s customer/end user.

5.4 Unless otherwise agreed by the Applicant and the Company, the Company shall be entitled to deliver the Goods in one or more lots. Where delivery of the Goods is effected by way of part delivery, the Company shall be entitled to invoice the Applicant for pro rata progress payments in respect thereof.

5.5 Notwithstanding the Applicant’s inability to accept delivery of the Goods, the Company shall be deemed to have delivered the Goods in accordance with these Terms of Trade.

5.6 All claims by the Applicant in relation to delivery quantities or loss or damage to the Goods must be made within 24 hours of delivery of the Goods, time being of the essence. Any claims made outside this time frame will not be recognised by the Company.

6. TERMS OF PAYMENT

6.1 Unless otherwise agreed by the Company in writing, all Goods will be supplied on a cash before delivery basis.

6.2 The extension of credit to the Applicant by the Company shall be at the absolute discretion of the Company, which discretion may be varied or discontinued from time to time, and where extended unless otherwise advised in writing by the Company, the Company requires cash payment in full by the last Business Day which is 30 days following the date of the Invoice. A letter signed by a director of the Company will be sufficient evidence as to the terms of credit applicable to the Applicant at any point in time.

6.3 The time for payment of any invoice shall be of the essence as stated on each/any such invoice. If no time is so stated then payment shall be required upon delivery of the Goods.

6.4 In the event that payment for any Invoice has not been received by the Company within 30 days of Invoice, the Company may, in its discretion:

(a) immediately cease any extension of credit; and/or
(b) charge the Applicant interest on overdue amounts at the ninety day bank bill rate plus 5%, such interest to be calculated daily
on the balance outstanding; and/or
(c) charge to the Applicant all administration and other costs incurred by the Company in relation to collection of outstanding
amounts owed by the Applicant to the Company.

6.5 The Applicant may not withhold payment or make any deductions from any amount owing without the Company’s prior written consent, which consent may be withheld in its absolute discretion.

6.6 The Company will forward a statement monthly to those Applicants granted an extension of credit pursuant to clause 6.2.

7. SALES AND GOODS AND SERVICES TAX

Should any sales tax, GST as levied under the GST Act (as amended) and any other tax, fee, levy or duty imposed by any competent authority be payable on any of the Goods supplied by the Company, such tax, fee, levy or duty will be to the Applicant’s account and shall be calculated using the rates and methods of assessment in force at the time of delivery. The Applicant is liable for any other applicable tax, including, without limitation, withholding tax.

8.PASSING OF RISK AND RETENTION OF TITLE

8.1 Risk in the Goods shall pass on delivery.

8.2 In the event that payment for the Goods is made before delivery, legal and equitable title shall remain with the Company until such time as delivery is effected.

8.3 If payment for the Goods is to be made at any time after delivery, legal and equitable title shall remain with the Company and the Applicant will hold the Goods as bailee for the Company until the Applicant pays to the Company the price as set out in any Invoice together with payment in full for all debts accrued or owed to the Company.

8.4 The Applicant agrees and acknowledges that payment is not deemed to have been made until any cheque in payment for an invoice or for all debts accrued or owed to the Company has been duly honoured.

8.5 The Applicant may sell or deal in the ordinary course of business with the Goods and with the interest of the Company in the goods and may for the purposes of such sale or dealing part with possession of the Goods on the condition that the proceeds of any sale or dealing will be held by the Applicant on trust for the Company and the provisions of this clause 8 are complied with. The Applicant hereby agrees to accept this appointment as bailee and fiduciary.

8.6 Notwithstanding any other clause of these Terms of Trade, the Company reserves the following rights in relation to the Goods until all amounts owed by the Applicant to the Company are fully paid:

(a) legal and equitable ownership of the Goods;
(b) to enter the Applicant’s premises (or the premises of any associated company or agent where the Goods are located) without liability for trespass or any resulting damage and retake possession of the Goods; and
(c) to keep or resell any of the Goods obtained pursuant to clause 8.6 (b): and
(d) the Applicant acknowledges that ownership of the Goods delivered by the Company to it is only transferred to the Applicant when it has paid all sums owing to the Company on any account whatsoever. Until such time the Company has the right to call for or recover the Goods at its option (for which purpose its employees or agents may enter the Applicants premises) and the Applicant is obliged to deliver up the Goods if so required in accordance with the enforcement procedures outlined in Chapter 4 of the Personal Properties Securities Act 2009 (Cth) or any applicable legislation from time to time.

8.7 The Applicant must, so long as the Company is entitled to the property in the Goods, store the Goods so that they are clearly identifiable as the property of the Company.

8.8. In the event that the Goods are resold by the Applicant, it will be deemed to have done so as agent for the Company and only on the following terms:

(a) on such disposal or dealing, the Applicant transfers all rights to the proceeds of that disposal or dealing to the Company
absolutely;
(b) the Applicant as bailee and fiduciary of the Goods must hold the proceeds of any sale or dealing of the Goods (to the extent
of any liability to the Company in respect of the Goods) in trust for the Company;
(c) the Applicant must keep separate records of any sale of the Goods and must maintain the proceeds in a separate account; and
(d) the Applicant must account to the Company for any proceeds from such Goods and must direct any purchasers of the Goods to pay the proceeds to the Company.

9. REGISTRATION OF SECURITY INTEREST

9.1 The Applicant acknowledges that the Company may register at its discretion its interest in the Goods as a Security Interest but shall provide a copy of the Verification Statement once the Security Interest has been so registered.

9.2 These Terms and Conditions are governed by the Personal Property Securities Act 2009 (Cth) as amended from time to time. Any capitalised words used in these Terms and Conditions but not defined shall take on the meaning as such defined words in the referred Act and if not defined in the Act, then pursuant to their ordinary meaning.

10. COMPANY’S WARRANTY

10.1 The Goods manufactured and or distributed by the Company are guaranteed against defective workmanship and materials for a period of 12 months (unless otherwise specified) from the date of purchase, the Company’s obligations pursuant to this express warranty being limited to the repair or replacement of the defective Goods or materials at its option and subject to the terms and conditions stated in the warranty card attached to the Goods. Glass, lamps and Teflon® are not included in this warranty. RCD tripping due to moisture absorption by Tubular Heating Elements is not considered a warranty fault.

10.2 All Goods claimed under this warranty must be returned to the nearest authorised service agent of the Company, freight pre-paid for inspection.

10.3 Except as provided in this clause, the Company shall not be liable for any loss or damage, whether direct or indirect (including consequential losses or damage) arising out of any breach of contract by the Company or any negligence of the Company, its employees or agents.

10.4.1 To the extent permitted by law all implied conditions and warranties, as to merchantability and fitness for use or intended purpose, are expressly excluded.

10.4.2 The Company shall not be liable or in any way responsible for any incidental or consequential economic or property damage except where it is in breach of the guarantees provided to the Applicant in accordance with Schedule 2 of the Competition and Consumer Act 2010 (Cth) or the applicable legislation from time to time.

10.4.3 Any warranty coverage does not apply when:

(a) The Goods have been subject to fair wear and tear;
(b) Unauthorised modifications or repairs to the Goods have been made;
(c) The Goods are damaged as a result of a failure to comply with the manufacturers storage instructions and/or use;
(d) The Goods are subsequently constituted second hand in that the Applicant is not the original purchaser of them.

 

10.5 The Company will not be liable in respect of any claims for parts damaged in transport, misused by the Applicant or its authorised parties or modified in any way without the approval of the Company.

10.6.1 Any repairs or replacement of defective Goods or materials pursuant to the warranty set out in this clause, must be authorised by a director of the Company prior to any action being taken. The Company reserves the right to reject a warranty claim if it is not completely satisfied with the circumstances under which such fault or defect occurred.

10.6.2 Correction or repair of any defect in any manner and during any warranty period shall constitute complete fulfilment of all liabilities and responsibilities of the Company to the Applicant with respect to the Goods and shall constitute full satisfaction of all claims whether based on contract, negligence, strict liability or otherwise. In no circumstances shall the Company be liable or in any way responsible for any damage or defect in the Goods caused by repairs or attempted repairs performed by anyone other than the Company or its authorised service provider.

10.7 The Goods come with guarantees that cannot be excluded under the Australian Consumer Law (ACL). The Applicant is entitled to a replacement or a refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. The Applicant is also entitled to have the Goods repaired or replaced if they fail to be of acceptable quality and the failure does not constitute a major failure.

10.8 This warranty does not extend to cover loss of profits or damage to other equipment.

11. APPLICANT’S WARRANTY AND INDEMNITY

11.1 The Applicant acknowledges and warrants to the Company that as at the date of entry into a contract to purchase the Goods, the Applicant is not insolvent nor has he committed any act of bankruptcy, or being a company knows of no circumstances which would entitle a debenture holder or unsecured creditor to appoint a receiver, to petition for winding up of the Applicant or exercise any other rights over or against the Applicant’s assets.

11.2 Without prejudice to any other rights the Company may have against the Applicant, the Applicant shall indemnify the Company for and save it harmless from any loss damage or expense incurred by the Applicant as a result of the Applicant:

(a) cancelling any order (or part thereof) for the Goods; or
(b) breaching these Terms of Trade.

12. DEFAULT

Should the Applicant fail to make payment for any Goods supplied by the Company on the dates due for payment or commit a breach of any term of the sale or being a natural person commit an act of bankruptcy or being a corporation by act or omission enable the appointment of an administrator, scheme manager, trustee, official manager, receiver, receiver and manager, liquidator or any other person authorised to enter into possession or assume control of any property of the Applicant pursuant to a mortgage or other security, then:

(a) the right of the Applicant to sell the Goods in the ordinary course of business or otherwise immediately terminates without the
need for the Company to provide written confirmation; and
(b) the Company may without prejudice to any other rights it may have, do any or all of the following:
(i) immediately withdraw any credit facilities which may have been extended to the Applicant and require immediate payment of all moneys accrued or owing to the Company;
(ii) withhold any further deliveries of Goods or performance of service required under the contract;
(iii) in respect of Goods already delivered, enter onto the Applicant’s premises to recover and resell same for its own benefit;
(iv) suspend and/or terminate performance of any other contracts which the Company has with the Applicant.

13. GOODS RETURNED

13.1 The Applicant shall inspect the Goods immediately upon delivery and if the Goods are damaged or not otherwise in conformity with the contract relating to their supply shall give written notice to the Company of the details in respect thereof within 24 hours of the date of delivery.

13.2 Subject to clause 13.3, any Goods the subject of a notice under clause 13.1 shall be left in the state and condition in which they were delivered until such time as the Company or its duly authorised agent has inspected the Goods, such inspection to be carried out within 60 days for acceptance of any non-damaged returns after notification by the Applicant. If the Goods are not so left in the state and condition in which they were delivered, the Applicant shall be deemed to have accepted the Goods and shall pay the purchase price for the Goods to the Company.

13.3 Upon receipt of a notice under clause 13.1, the Company will advise a return authorisation number and the mode of transport (if clause 13.2 is not to apply) acceptable to the Company. Any Goods returned to the Company will be at the Applicant’s entire risk as to loss or damage. In relation to Goods returned to the Company, the Applicant undertakes to follow the Company’s instructions, prepay the freight and clearly mark the freight with the return authorisation number advised by the Company.

13.4 Deliveries not complying with clause 13.3 will not be accepted by the Company.

13.5 Subject to clauses 13.1 and 13.3, valid claims for incorrectly sent Goods will be credited in full. A 20% handling fee will apply to all Goods returned against orders correctly executed. The Company reserves the right to charge for any cost incurred in such execution.

13.6 Subject to clause 13.1 acceptance of the Goods shall be deemed for all purposes to have taken place when delivery has occurred.

13.7 In the case of a non-standard manufacture, where a “Confirmation of Non-standard Items” form has been signed, and where orders have been correctly executed, no returns will be accepted.

14. DISPUTES

14.1 Any disputes between the parties arising from the performance of the provisions of these Terms of Trade must be settled through friendly consultation by the parties. All disputes arising in respect of these Terms of Trade which are not resolved within 30 days of first arising will be finally settled under the Rules of Conciliation and Arbitration of the International Chamber of Commerce by a single arbitrator appointed in accordance with the said Rules. The place of arbitration will be Sydney New South Wales. The procedural law applicable to the arbitration will be that of New South Wales. The decision of the arbitration is final and binding upon both parties.

14.2 During the period in which the dispute is being resolved, the parties must continue to perform all of the provisions of these Terms of Trade which are not under dispute and which are able to be performed by the parties.

15. SEVERABILITY

All provisions contained in these Terms of Trade shall be construed so as not to be invalid, illegal or unenforceable in any respect but if any such provision on its true interpretation is illegal, invalid or unenforceable that provision may, at the option of the parties, be read down to such extent as may be necessary to ensure that it is not illegal, invalid or unenforceable and as may be reasonable in all circumstances so as to give it a valid operation of the partial character. In the event that any such provision or part thereof cannot be so read down, such provision shall be deemed to be void and severable and the remaining provisions hereof shall not in any way be affected or impaired thereby.

16. FORCE MAJEURE

The Company shall not be liable for any claims for non-fulfilment or late delivery should actual delivery of the Goods or any parts be delayed in consequence of unforeseen events such as strikes, unforeseen breakdown of machinery (save where caused by improper maintenance or operation by untrained personnel), suspension of electricity or other relevant power supply, riots, war, robbery, civil commotion, adverse non foreseeable weather conditions, disaster caused by fire and/or water, action of government or port authority, delay of vessel, rail-road embargoes, inability to obtain transportation facilities or due to a failure of an original equipment manufacturer to supply components by the due date.

17. APPLICABLE LAW

These Terms of Trade shall be governed by and construed in accordance with the laws in force in the State of New South Wales, Australia and the parties submit to the non-exclusive jurisdiction of the Courts of that State.

18. GENERAL

18.1 In the event of any breach of these Terms and Conditions by the Company the Applicant’s remedy should be limited to damages. Under no circumstances shall the Company’s liability exceed the sale price of the Goods to the Applicant.

18.2 The Company reserves the right to review and change these Terms and Conditions from time to time. Any such change will take effect from the date on which the Company notifies the Applicant of that change.

19. DEFINITIONS

The following words have the following meaning:

“Applicant” means the person or entity purchasing the Goods from the Company.
“Business Day” means a day other than a Saturday or Sunday when trading banks in Sydney are open for general banking business.
“Company” means Roband Australia Pty Limited ACN 003 049 063.
“F.I.S.” means free into store as referred to in the Incoterms.
“F.O.B.” means free on board as referred to in the Incoterms.
“Goods” means all Goods ordered by the Applicant from time to time and supplied by the Company under these Terms of Trade and includes any services forming part of the supply of Goods.
“GST” means goods and services tax or similar value added tax levied or imposed in Australia pursuant to the GST law or otherwise on a supply.
“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth).
“GST Law” has the same meaning as in the GST Act.
“Incoterms” means the International Rules for the Interpretation of Trade Terms, ICC Publishing S.A., Paris 2000 edition.
“Invoice” means an invoice sent by the Company to the Applicant for payment of the Goods supplied to the Applicant at the request of the Applicant.
“Terms of Trade” means the terms and conditions of trade as set out above.

These Trading Terms and Conditions are current as at September 2023.

© 2023 Roband Australia Pty Ltd. All Rights Reserved.