All Orders given to ASC Energy Pty Ltd (hereafter ASC ENERGY), ABN No 99 156 499 133 are subject to the following Terms and Conditions.
1. Formation of Contract of Sale of Goods
1.1 These Terms and Conditions supersede all previous terms and conditions imposed by ASC ENERGY and may only be varied in writing by ASC ENERGY.
1.2 Each Order will constitute an offer by the Applicant to acquire Goods from ASC ENERGY upon and subject to the Terms and Conditions and to the exclusion of all other terms and conditions and notwithstanding any qualifications of the Terms and Conditions (including any terms and conditions contained in any purchase Order or other document of the Applicant) unless expressly agreed by ASC ENERGY in writing. Any price lists or sales order given by ASC ENERGY to a Applicant are an invitation to the Applicant, subject to the confirmation returned from the nominated director or account manager listed on the credit application form, in writing, by fax or by electronic data interchange.
1.3 A contract will only be made between ASC ENERGY and the Applicant for the sale and purchase of Goods if and upon the acceptance of the Order by ASC ENERGY PTY LTD by the provision to the Applicant of an Order Confirmation.
1.4 The Contract resulting from the provision of the Order Confirmation cannot be cancelled by the Applicant without ASC ENERGY written consent and ASC ENERGY may at its discretion impose a reasonable cancellation charge.
2. Payment Terms
2.1 The terms of payment are strictly seven (7) days (or such other period as nominated by the supplier herein) from the date of invoice. ASC Energy Pty Ltd ACN 156 499 133 and their related bodies corporate (as that term is defined in the Corporations Act 2001) (Supplier) may, at any time, upon the provision of 48 hours’ written notice to the Applicant, vary the terms and conditions of trade.
2.2 If the Applicant does not agree with the variations proposed by the Supplier, they must notify the Supplier in writing within seven (7) days from receipt of the written notice that the variations are not agreed to. The Supplier and/or the Applicant will then be at liberty to suspend/withdraw credit facilities if no agreement can be reached between the parties regarding the proposed variations. Absent notice from the Applicant, the varied terms and conditions of trade may be deemed accepted. Clerical errors (such as spelling mistakes or grammatical errors) may be subject to correction without notification.
2.3 The Applicant agrees to pay to ASC ENERGY the Price in full upon the delivery of the Goods, unless the Applicant has completed and returned a Credit Application Form and ASC ENERGY has agreed to extend credit to the Applicant. Where credit is not extended to the Applicant, the Applicant agrees to pay the Price in full on or before the date of delivery of the Goods or as otherwise agreed with ASC ENERGY.
2.4 If the Price is not paid in full as and when due in accordance with clause 2.2, then ASC ENERGY shall have the right to charge General Interest Charge (GIC) published by ATO from the due date to the date that the account is paid in full and should the account be referred to a collection agency the applicant shall pay the collection fee plus legal costs on a solicitor/own client basis.
2.5 The Applicant must check all invoices and advise the Supplier of any errors or omissions within three (3) days of receipt. Failing advice from the Applicant that the invoice contains any errors or omissions, the invoice may be deemed accepted by the Supplier.
2.6 Should the Applicant not pay for the Goods that supplied by the Supplier in accordance with the credit terms as provided herein, or as agreed in writing by the Supplier and Applicant from time to time, after issuing a written demand to the Applicant demanding payment within seven (7) days, the Supplier will be entitled to charge an administration fee of 10 percent of the amount of the invoice payable.
2.7 The Price is GST exclusive unless stated otherwise. The Applicant must pay to ASC ENERGY any GST which ASC ENERGY is liable to pay in respect of supplies made by ASC ENERGY under these Terms and Conditions, at the same time and in the same manner as first payment is made for the supply to which the payment relates.
2.8 Prices, fees and charges are subject to change without notice.
3. Title and Risk
3.1 The Applicant acknowledges and agrees that no title of any Goods shall pass to the Applicant until the Price has been paid to ASC ENERGY in full.
3.2 Risk of Loss or damage to the Goods will pass to the Applicant at Delivery Time.
4. Purpose of Credit
4.1 The applicant acknowledges and agrees that the credit to be provided to the applicant by ASC ENERGY is to be applied wholly or predominantly for commercial purposes.
5.1 The Applicant acknowledges and accepts that any estimated delivery time or supply of goods provided by the Supplier is an estimate only and the Supplier will not be liable for any loss suffered by the Applicant as a result of any delay in the delivery of goods.
5.2 The Supplier is entitled to charge a reasonable fee for storage and/or redelivery charges in the event the Applicant does not, or is unable to, accept delivery of the goods.
5.3 Any term of the Contract relating to the quantity of Goods is not the essence of the Contract. ASC ENERGY reserves the right to make partial deliveries against an Order and to invoice each partial delivery separately and the Applicant cannot reject Goods on the basis of partial delivery.
5.4 Where Goods remain in the possession of ASC ENERGY after the Delivery Time (including where the Applicant fails for whatever reason to take delivery of the Goods), ASC ENERGY is entitled to charge the Applicant for all Loss occasioned by the Applicant not accepting delivery together with any costs and Loss in respect of the carriage, care and custody of the Goods.
5.5 The Applicant must ensure that it or its employees or agents are in attendance at the Delivery Address at the agreed time or agreed period for delivery to accept delivery of the Goods and to acknowledge receipt upon the consignment note or invoice accompanying the Goods.
6. Inspection, Acceptance of Goods and Applicants obligations
6.1 The Applicant has no claim for shortages, defects or any Loss in respect of Goods apparent on inspection unless:
(a) a complaint is made to ASC ENERGY within 3 business days of the Delivery Time specifying the shortage or defect; and (b) ASC ENERGY PTY LTD is, after receipt of the complaint, permitted to inspect the Goods and investigate the complaint.
6.2 If a complaint is not made to ASC ENERGY in accordance with clause 6.1 (a), the Goods delivered will be deemed to be in accordance with the Contract, and ASC ENERGY will not be held liable for any future Losses regarding the use or application of the Goods, and the Applicant is bound to pay for them accordingly.
6.3 ASC ENERGY will only accept the return of Goods from the Applicant where:
(a) the Applicant has complied with clause 6.2 and ASC ENERGY is satisfied as to the claim by the Applicant; and
(b) the Goods are returned to ASC ENERGY in the same condition as when first delivered to the Applicant; and
(c) the applicant must bear the freight costs when returning the goods.
6.4 Where incorrect Goods are Ordered, an incorrect item number for Goods is used, an incorrect unit of issue or pack size is Ordered, an Order exceeds the Applicant’s requirements, an incorrect account number is used, or an Order is duplicated, the Applicant may after receiving written authority from ASC ENERGY, return the Goods to ASC ENERGY subject to the Goods being returned in the same condition as when first delivered to the Applicant and subject to the Applicant bearing the freight costs of the delivery and return of the Goods. The return is only accepted within 7 business days of the Delivery Time. The applicant acknowledges and agrees that any return will incur a handling and administration charge of 15 percent of the purchase price of the returned goods.
6.5 Where Goods are returned to ASC ENERGY in accordance with the above provisions ASC ENERGY must issue a credit note in respect of any amounts paid by the Applicant in respect of those Goods.
7. Cancellation of Terms of Credit
7.1 ASC ENERGY reserves the right to withdraw credit at any time upon provision of 48 hours’written notice.
7.2 Upon cancellation with notice, all liabilities incurred by the applicant become due and payable to ASC ENERGY within seven (7) days.
8.1 If the applicant is a corporation, ASC ENERGY warrants that all of its directors have signed this agreement and that all of its directors may be required to enter into a guarantee and indemnity with ASC ENERGY in relation to the applicant’s obligations to ASC ENERGY.
9. Trustee capacity
9.1 If the applicant is the trustee of a trust (whether disclosed to ASC ENERGY of not), the applicant warrants to ASC ENERGY that:
(a) the applicant enters into this agreement in both its capacity as trustee and in its personal capacity;
(b) the applicant has the right to be reasonably indemnified out of trust assets;
(c) the applicant has the power under the trust deed to sign this agreement; and
(d) the applicant will not retire as trustee of the trust or appoint any new or additional trustee without advising ASC ENERGY.
10.1 If the applicant enters into this agreement as partner, the applicant warrants that all partners have signed this agreement and that all partners may be required to enter into a guarantee and indemnity with ASC ENERGY in relation to the applicant’s obligation to ASC ENERGY.
10.2 If the applicant is a partnership, it must not alter its partnership (for example, adding or removing partners or altering its partnership agreement) without advising ASC ENERGY. In the case of a change of partners, ASC ENERGY may ask for new guarantors to sign a guarantee and indemnity.
11.1 If the applicant becomes insolvent, the applicant remains liable under this agreement for payment of all liabilities incurred hereunder. The applicant remains liable under this agreement even if ASC ENERGY receive a dividend or payment as a result of the applicant being insolvent.
11.2 ASC ENERGY is not liable for loss of profit, economic or financial loss, damages, consequential loss, and loss of opportunity or benefit, loss of a right or any other indirect loss suffered by the applicant as a result of the goods and or services supplied under this agreement.
12.1 The total liability of ASC ENERGY under these Terms and Conditions is, to the extent permitted by law, expressed in this clause 6 and ASC ENERGY will under no circumstances be liable to the Applicant for any Loss incurred by the Applicant or any other party resulting directly or indirectly out of the supply by ASC ENERGY to the Applicant or out of any breach of ASC ENERGY under these Terms and Conditions or out of the negligence of ASC ENERGY.
13.1 These Terms and Conditions take effect, are governed by and will be construed in accordance with the law of NSW.
13.2 These Terms and Conditions are subject to change without notice.
14.1 The applicant acknowledges and agrees that this agreement will be governed by the laws of the state in New South Wales, and the laws of the Commonwealth of Australia which are in force in the relevant jurisdiction.
14.2 The applicant acknowledges and agrees that any contract for the supply of goods or services between ASC ENERGY and the applicant is formed at the address of ASC ENERGY.
14.3 The parties to this agreement submit to the exclusive jurisdiction of Court of New South Wales and the relevant federal courts and courts competent to hear appeals from those courts.
15.1 The applicant agrees that these terms and conditions may be varied, added to, or amended by an authorised officer of ASC ENERGY at any time by written notice to the applicant. The applicant will be provided with fourteen (14) days to accept the variation/s, failing which the variations may be deemed accepted by ASC ENERGY.
15.2 Any proposed variation to these terms and conditions by the applicant must be requested in writing. ASC ENERGY may refuse any such request without providing reasons either orally or in writing.
15.3 Variations requested by the applicant will only be binding upon ASC ENERGY, if they are accepted in writing.
16. Consent to register
16.1 The applicant hereby consents to ASC ENERGY recording the details of this Agreement on the Personal Property Securities Register and agrees to do all things necessary and reasonably required by ASC ENERGY to affect such registration.
16.2 The applicant waives any right or entitlement to receive the notice of the registration of any security interest(s) created by this instrument on the Personal Property Securities Register.
17. Entire Agreement
17.1 This agreement constitutes the entire agreement between the parties relating in any way to its subject matter, unless agreed to otherwise by ASC ENERGY and the applicant in writing. All previous negotiations, understandings, representations, warranties, memoranda or commitments about the subject matter of this agreement are merged in this agreement and are of no further effect. No oral explanation or information provided by a party to another affects the meaning or interpretation of this agreement or constitutes any collateral agreement, warranty or understanding.
17.2 Notwithstanding the preceding paragraph, in circumstances where there is a pre-existing written credit agreement (Original Agreement) between the applicant and ASC ENERGY, these terms and this agreement will constitute a variation of the original agreement whereby the terms of the Original Agreement are deleted and replaced with the terms herein, unless the terms of the Original Agreement are otherwise expressly or implicitly preserved by the term herein which case they will co-exist with the terms herein, and, to the extent of an inconsistency, these terms will prevail.
18 Privacy Act
18.1 The applicant agrees to the terms of the Privacy Statement pursuant to the Privacy Act 1988 (as amended by the Privacy Amendment (Enhancing Privacy Protection) Act 2012 contained in this document.